On Jan. 22, 1973, before a packed gallery, the Supreme Court of the United States declared that a woman has a constitutional right to an abortion. But that 7-2 decision, written by Justice Harry Blackmun, played second fiddle in the headlines to another event - Lyndon Johnson, the former president, was dead. A day later a cease-fire in Vietnam was announced; that pushed Roe v. Wade off the front pages altogether. LBJ went out with an impressive funeral, and the war drew to a close, but the court’s action turned out to be a temblor that would transform the landscapes of American society and polities.
Jane Roe v. Henry Wade. An anonymous pregnant woman against the district attorney of Dallas County, Texas. A simple case caption in the annals of the law. And a tragic choice between fetal life and individual liberty. The divide is vast. To those who speak of the right to life, Roe is a diabolical license to murder. To those of the right-to-choose persuasion, Roe is a glorious symbol of women’s freedom. Either way, to both factions, Roe v. Wade is merely a political result to be agreed or disagreed with - rather than a judicial decision to be assessed on its own narrower terms. Is it good constitutional law or bad? For most anybody with an opinion on abortion, the answer reached flows solely from the outcome desired.
That mind-set, however, diminishes the court’s role in the structure of American government. Policy-based decisions-political decisions-are fine for the legislative and executive branches; after all, that’s the purpose of elections. But the high court succeeds only when it is perceived to be above all that and to rule based on neutral principles. The justices derive legitimacy from respect; they have neither troops at their command nor power over the national purse. A court that rests on realpolitik alone-where the justices are nothing more than nine superlegislators voting their own predilections-becomes a court without integrity. Yet that is precisely what both sides in the abortion debate risk in their marches past Congress on the way to the Supreme Court building.
This week, again, the court will return to Roe. Despite all the talk of a presidential election-year rumble and the prognostications of coming legislative wars, Roe is still where the action is. It remains the law of the land. This week’s argument in Planned Parenthood v. Casey will not be about the wisdom of “life” or “choice.” It will be about Roe v. Wade. Was that ruling 19 years ago a courageous expression of core constitutional ideas or the bastard child of a Supreme Court gone lazy and unmoored from its juridical traditions?
This is one look at how we got here.
The Roe opinion didn’t just emerge from a constitutional black hole, the fantasy of some creative jurists. The Supreme Court has always read into the Constitution certain values that weren’t transparently there. The pivotal example this century involves not a particular issue like abortion, but the charter’s very reach. In rulings dating to 1897, the justices concluded that the Bill of Rights applied not only to the federal government, but to the states as well. Why did the guarantee of free speech restrain South Dakota, even though the words of the First Amendment put limits only on Congress? Because the court said so. These were rights, Justice Benjamin Cardozo wrote, that were " so rooted in the traditions and conscience of our people as to be ranked as fundamental." That’s poetry all right, but it doesn’t make out a legal theory. And yet this has long been accepted in the constitutional mainstream.
On matters of sex, marriage and procreation, the court began to assert itself long before Roe. In 1942, the justices first recognized the “fundamental” nature of what’s become known as reproductive rights. In Skinner v. Oklahoma, the court unanimously struck down a law mandating sterilization for felons with two or more convictions “involving moral turpitude.” While Justice William 0. Douglas described the right to reproduce as “one of the basic civil rights of man,” he knew the Constitution didn’t have a clause on that. Instead, he used a more limited notion-the guarantee of “equal protection” under the 14th Amendment. Since a three-time larcenist was subject to sterilization and a three-time embezzler was not, the law was unconstitutional.
Two decades later, the issue moved closer to home. The justices, in effect, were asked whether there was a right not to reproduce. Griswold v. Connecticut concerned a state law that banned the use of contraceptives. By a 7-2 vote, the liberal Warren Court held the law unconstitutional. This time, Douglas was more honest than in Skinner. Candidly admitting the absence of any textual mandate, he found a right of marital privacy implicit in the Constitution as a whole. In a Cardozoan flourish, he announced that “specific guarantees in the Bill of Rights have penumbras, formed by emanations … that give them life and substance.”
Seven years later, the high court extended Griswold to unmarried individuals. The analysis in Eisenstadt v. Baird seemed even more wobbly. “If the right of privacy means anything,” wrote Justice William J. Brennan Jr. for a 6-1 majority, " it is the right of the individual, married or single, to be free from unwarranted governmental intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child." This is a remarkable sentence. The Massachusetts law didn’t eliminate a person’s freedom to forgo having children; abstinence could still accomplish that. Rather, it embraced the more limited freedom to have sex without having children. Did Brennan truly believe that " if the right of privacy means anything, “it was that latter freedom? This was hyperbole. To most, privacy meant not having the police barge into your home in the middle of the night without a warrant.
Despite all their rhetorical excesses, Griswold and Eisenstadt can be rationalized as decisions more about outrageous government “snooping” and within the reach of the Fourth Amendment. How else could the state enforce law on private sexual activity.? " Would we allow,” Douglas asked, “the police to search the sacred precincts of marital bedrooms for telltale signs” of contraceptives? The same logic is present in Eisenstadt, if the word “marital” is removed. Nonetheless, the two rulings-as written-were not so confined to constitutional text. And the next privacy case would expose the perils of that analytical gap.
On that Monday morning in early 1973, Harry Blackmun knew he was making history. He had invited his wife to the marbled courtroom to hear his announcement of Roe v. Wade. Reading a summary, Blackmun said: " We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy of the vigorous opposing views … of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training … are all likely to influence and to color one’s thinking." It was an astonishingly honest statement for a judge. Yet it never mentioned the role that constitutional law might play in reaching a decision.
Neither did Blackmun’s full 52-page opinion. First, he reviewed the history of attitudes toward abortion since the Persian Empire, pointing out that abortion laws dated only to the 19th century. Next, he surveyed the range of cases that seemed to talk about privacy. Even before Skinner, he noted Justice Louis Brandeis’s famous dictum in 1928 about the “right to be let alone.” Blackmun then listed Griswold and Eisenstadt, as well as decisions upholding parents’ rights to educate their children.
From these cases, Blackmun asserted without explanation, emerged a “right of privacy” that was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” It was traceable to the 14th Amendment, which prohibited states from denying “liberty” to anyone without “due process.” And that was it. With a wave of the judicial wand, abortion had become a constitutional right, without an accounting of why. Now it was merely left to map out an abortion regime that the court believed would balance the interests of the woman and the fetus.
Blackmun, former counsel to the Mayo Clinic, borrowed from medicine. He adopted a trimester approach. During the first trimester, the abortion decision would be left to the woman and her physician. In roughly the next three months, up until the point of fetal viability, the state could regulate abortion to keep it safe for the woman. After that, the government-in order to protect the unborn-could prohibit abortion, except where necessary to preserve the mother’s life or health. In political terms, this was an entirely sensible compromise, even if medical technology would make viability a changing line of demarcation. As a constitutional matter, it was preposterous. Why did the government’s interest in fetal life prevail only after viability? Blackmun’s answer: “The fetus then presumably has the capability of meaningful life outside the mother’s womb.” But as John Hart Ely put it in a celebrated article, this “seems to mistake a definition for a syllogism.”
The larger problem with Roe was its sloppy use of legal doctrine. Unlike in Griswold and Eisenstadt, the court didn’t even try to ground its ruling in specific provisions of the Bill of Rights, penumbral or otherwise. And Roe certainly couldn’t be rationalized as a decision about “snooping”; the doctor’s office - regulated by the very grant of a license - may be a private place, but not remotely similar to the bedroom. Instead, the justices said that 14th Amendment “liberty” included more than the freedoms cataloged in the Bill of Rights; privacy was now one of them.
Liberty, of course, isn’t narrowly defined. The fixed constitutional menu, if ever it existed, was suddenly a judicial smorgasbord. Trouble was, if carried to its logical conclusion, this seemed to give the justices free rein to obliterate any laws. A generation earlier, the court had learned the dangers of an expansive “liberty” clause; back then, the focus was ,economic" liberty rather than “reproductive.” From 1905 to 1937, the court struck down laws on minimum wages, maximum hours and other reforms intended to benefit workers. Much of the early New Deal met a similar fate. Eventually, the justices did an about-face.
The dissenters in Roe, and its scholarly critics over the years, feasted on the court’s hypocrisy in resuscitating the “liberty” clause to suit its agenda. Yet listen to Justice William Rehnquist in Roe. " If the Texas statute were to prohibit an abortion even where a mother’s life is in jeopardy," he wrote, there would be “little doubt” the law would fall. Says who? Why couldn’t a legislature conclude that a healthy fetus overrides the interests of a feeble mother? What if she were carrying twins? The point is that even Rehnquist couldn’t avoid inserting his own values. His disagreement with Blackmun seems just to have been about result.
In the years after Roe v. Wade, the Supreme Court had ample opportunity to revisit it. The ruling jump-started the anti-abortion movement, legislators passed new restrictions and legal challenges made their way up the judicial channel. Invarious decisions, the justices struck down husband and parental vetoes, 24-hour waiting periods and requirements that physicians tell women that a fetus is “human life.” However, the court declined to make government pay for abortions, even medically necessary ones sought by indigent women. Still, the pattern was clear: direct limitations on first-trimester abortions were unconstitutional.
Despite these defeats - maybe because of them - the anti-abortion groups didn’t let up. They worked the political arena and, in the 1980s, helped elect Ronald Reagan and George Bush to the White House. Both vowed to appoint judges who would overturn Roe. Between 1975 and 1991, six members of the Roe majority left the court - all but Blackmun. Political conservatives took the seats. Rehnquist became chief justice. Lo and behold, Roe fell into disrepute. To be sure, the court offered differing reasons. Yet it could not escape its real modus operandi: we don’t like abortion. Little had changed since 1973 except the composition of the court.
The critical case came in 1989. Webster v. Reproductive Health Services tested a Missouri law barring physicians from performing abortions after 20 weeks of pregnancy without first doing tests to determine fetal viability. A splintered court upheld the law, 5-4. But, while the justices narrowed and even contradicted Roe, they did not reverse it. In her decisive concurring opinion, Justice Sandra Day O’Connor wrote that states could pass any abortion restrictions that did not put an “undue burden” on women. But O’Connor, trying, desperately, to stay on the judicial fence, didn’t indicate when a burden became undue. Justice Antonin Scalia ridiculed her efforts. The Webster case, he wrote, “preserves a chaos that is evident to anyone who can read.”
Scalia was intellectually rigorous enough to call for overturning Roe. Yet he had barely a word on Griswold and the rest. Clearly, he didn’t want to take on privacy generally. Instead, he - and the others in the Webster majority - preferred to “defer” to state legislatures. But how far might that principle extend? Imagine a law that was pro-death-that compelled abortion, say, in the name of population control. Would the conservative justices uphold that? You needn’t be a cynic to wonder if Webster is simply a result as much against abortion as Roe was for it.
This week’s Casey argument beckons the court again to come to grips with its doctrinal demons. On the docket will be Pennsylvania regulations ordering a 24-hour waiting period, parental consent, husband notification and doctor efforts to discourage abortion. Beyond those rules, though, the battleground will be Roe itself. And whether or not this is the occasion, virtually all scholars prediet that the high court will soon abandon the 1973 ruling. Should it?
Roe is a lousy opinion. As an example of constitutional craft, it is almost devoid of the things we expect from our judges: caution, neutral reasoning, fidelity to text and legal history. To a lesser degree, so, too, are Griswold and Eisenstadt. Even the notion of applying the Bill of Rights to the states seems an analytical stretch in the strictest sense.
That alone, however, doesn’t mean those rulings should be consigned to the judicial junkyard. Scalia’s universe of tightly bottled constitutional values is a value judgment itself The rallying cry of the new breed of judges is “original intent”; yet nowhere does the Constitution state, “Thou shalt interpret me based on what you think James Madison meant in 1791.” By their own words and deeds, these judges have proven that judging is not simply the mechanical application of rules. There is no RoboJudge. The broad language of the Constitution invites debate and judges must make choices. As long as Americans bring their issues to the courts - which is to say, as long as there are Americans - the justices will decide, sculpting the Constitution as they go.
If the spirit of the Bill of Rights is to protect individuals against the power of majorities, then who else to guard those liberties? The courts are the only one of the three branches so positioned; the democratically elected legislature and executive, by definition, aim to please the majority. Then, too, judges see the law in the real, dark world. Statutes deal with the abstract, Alexander Bickel, the constitutional scholar, wrote 30 years ago. “The courts are concerned with the flesh and blood of an actual case.”
Which judicial choices, then, are legitimate? Blackmun obviously would cite the one upholding a woman’s right to abortion. Scalia would not. Maybe the distinction is that Blackmun aimed to expand personal liberties. For all his fumbling, Blackmun might have been able to justify Roe as a ruling not really about abortion at all. If the rights of individuals are the special responsibility of the Supreme Court, and if abortion is a morally intractable question, then Roe can be seen as a ruling about who gets to make the choice. Blackmun left that to the woman rather the state. He drew the line at viability-hardly a perfect boundary-but the difficulty of drawing lines doesn’t obviate the need to. Scalia would call that judicial arrogance of the worst kind.
It comes down to interpretation. And neither the Blackmuns nor the Scalias have been able to convince us whose view is the more legitimate. In an impatient country, that’s a serious matter. But the abortion dilemma will eventually resolve itself in some consensus. If we survived slavery and segregation, we’ll outlast this crisis, which ever way it comes out. For women, for the unborn, for society - the resolution is important. The way we reach it is, too.
So many times the Supreme Court has been able to address great moral issues within the framework of our constitutional heritage. It is that capital which has been squandered in the nearly 20 years since Roe was announced. And it is that capital the current court jeopardizes if overturning Roe appears to be just an act of judicial payback. In the end, the Constitution says as much about process as result. To remember that is to honor our institutions and ourselves. ..L1.- ..CN.-HOSTILE TO ROE
CHIEF JUSTICE REHNQUIST An original Roe dissenter. Wrote the opinion in 1989 case that sharply cut back on Roe JUSTICE KENNEDY Voted with Rehnquist in 1989. He took the seat Robert Bork lost over his stated opposition to Roe. JUSTICE SCALIA Opposes an incremental approach to undoing Roe. Has urged colleages flatly to reverse. JUSTICE WHITE An original dissenter. A reliable vote to uphold various state restrictions on abortion. ..CN.-FOR UPHOLDING ROE
JUSTICE BLACKMUN Author of the Roe opinion, saddened by the likely demise of his most famous work. JUSTICE STEVENS Strong supporter of right to choose. With Blackman, the only sure vote to uphold Roe. ..CN.-CENTRIST
JUSTICE O’CONNOR Upheld abortion restrictions which do not impose an ‘undue burden’ on women. ..CN.-TOO SOON TO TELL
JUSTICE SOUTER Bush appointee, assumed to vote with conservatives. Potential for surprise. JUSTICE THOMAS The other Bush appointee, told the Senate that he’s never discussed Roe.
