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Awful Eight #5: Foundations of Sand‏

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roe-v-wadePerhaps no Supreme Court decision is better known- or more controversial- than Roe v Wade.   My decision to include it on the “worst” list stems not from a stance on the abortion issue but from questionable jurisprudence. Your opinion on a “woman’s right to choose” or “protecting the life of the unborn” will probably not be swayed by a single essay. I get that.   But I hope to convey the quicksand underpinnings upon which this fateful court decision rests.

Background

In 1969, twenty-one year old Norma McCorvey (born Norma Nelson) discovered she was pregnant with her third child. Her first child was by her husband, whom she married at age 16 and separated shortly thereafter; her second was by different man and given up for adoption.

At the time she was pregnant with her third child she was working various low-paying jobs to support herself and she sought an abortion. Abortion was illegal in Texas except in cases of rape or where the mother’s health was endangered. On advice of friends McCorvey attempted to obtain an abortion by claiming rape but was denied because there were no corroborating police reports. She also tried to visit an illegal clinic but it had recently been shut down by the police.

Eventually she was referred to newly-minted lawyers Sarah Weddington and Linda Coffee. While a third- year law student Weddington had traveled to Mexico for an abortion. After graduation she was unable to find work as a lawyer and joined a graduate group at the University of Texas at Austin that was looking for ways to overturn abortion laws. McCorvey looked to be an excellent candidate, although there was initial concern about public perception because she had identified as a lesbian. Nevertheless the group decided McCorvey would be a viable candidate and the case would best be argued by women, so the group asked Weddington and Coffee. Neither had ever argued a case before.

The Case- Roe v Wade (1972)

At issue, of course, was whether the Right to Privacy extended to a woman choosing to terminate her pregnancy.

Weddington based her argument on the 1st, 4th, 5th, 8th, 9th and 14th Amendments. The Court, however, relied heavily on a prior case, Griswold v Connecticut (1964).

Connecticut had a 19th century law on the books banning contraceptives. It was seldom enforced and had survived prior legal challenges mostly on technical grounds. In 1961 Estelle Griswold, a director for Planned Parenthood, opened a birth control clinic in New Haven, CT to test the statute. When she gave a married couple contraceptives she was arrested and fined $100.

Let’s put aside the archaic nature of the law and focus on the legal reasoning. In Griswold the Court discovered a “right to marital privacy.” Writing for the majority Justice William O. Douglas contended earlier cases “suggest that specific guarantees in the Bill of Rights have penumbras (indeterminate areas), formed by emanations from those guarantees….” Thus the cherished Right to Privacy is based on the suggestion of a penumbra of an emanation.

(Which makes me wonder: if it was ruled unconstitutional for the government to intrude on matters pertaining to birth control, how is it now legal for that same government to force me into purchasing insurance that covers birth control? But I digress…)

Where did the idea for this “Right to Privacy” come from? As it turns out, a Harvard Law Review article. While he was still in private practice future Justice William Brandeis co-wrote about the need to be “let alone” from unwanted media attention…in 1890. Media technologies of the late 19th century could “proclaim from the rooftops” what used to be “whispered in closets,” and, the authors reasoned, the government ought to create a new right to prevent this. So the Right to Privacy, as originally conceived, was to protect us from the paparazzi.

The foundation for Roe was laid upon these shaky pillars.

Now let’s turn to the actual case. Chief Justice Burger decided Justice Harry Blackmun should write the majority opinion because of his experience as chief legal counsel at the Mayo Clinic.

After establishing the standing and viability of the case Blackmun embarked on a tour of the history of abortion citing abortion attitudes of the Persians, Greeks, Romans and Ephesians; English common law and 19th century English statutory law; the opinion of the American Medical Association (AMA); the position of the American Public Health Association (APHA); the opinion of the American Bar Association (ABA) and a history of American state law on the topic.   What he does not cite is the Constitution.

Instead he begins his legal analysis with this:

The Constitution does not explicitly mention any right of privacy.

He cites prior Court decisions- including Griswold- to prove that “the Court or individual Justices… have found at least the roots of that right” in the First, Fourth, Fifth, Ninth, and Fourteenth amendments. And, as mentioned previously, Griswold found the Right to Privacy lurking somewhere in the shadows of the Bill of Rights.

So Blackmun concludes:

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

And there you have it.   Even though he could not decide which amendment (or plurality of amendments) granted this right, or even the roots of that right, he felt it was granted by the Fourteenth and the penumbras and emanations laid out in Griswold.

Blackmun concluded this right is fundamental but not absolute- the state may abridge this right if it has a compelling interest. That compelling interest is the right to life of the unborn child. To balance these two competing rights Blackmun invented a trimester system:

For the first trimester the abortion decision is left to “the judgment of the pregnant woman’s attending physician.” Contrary to popular belief, Roe did NOT grant an unfettered “right to choose an abortion.” Instead, the Court said that some argue a “woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.” (emphasis added).

For the second trimester the state has an interest in protecting the health of the mother and may therefore restrict abortion for reasons of maternal health.

For the third trimester the state has an interest in protecting the life of the now-viable fetus, and may therefore restrict abortion except where it is medically necessary for the life or health of the mother. Of course, this raises a troubling question: why is state’s interest in protecting life compelling only after the point of viability, if, in the normal course of pregnancy viability is inevitable? The Court did not provide an answer.

This system is found nowhere in statutory or case law. Rather, Blackmun based this on the 1970 opinion of the APHA regarding fetal viability. Justice William Rehnquist, in a scalding dissent, characterized Blackmun’s trimester system as partaking “more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.” One clerk at the time said “as a practical matter it was not a bad decision but as a constitutional matter it was absurd.”

Another legal scholar recently said Roe “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

Prior to Roe, 46 states had laws on the books restricting abortion to varying degrees. Roe wiped them out. All of them.

The decision was rendered 7-2.

Implications

In the four decades since Roe we’ve witnessed the spectacle of Congress grilling one Supreme Court nominee after another on their Roe position. This is symptomatic of the wrongness of creating rights by judicial fiat. For decades no judge has ever been questioned on the legality of women’s suffrage. That right has been secured for all time through the arduous constitutional amendment process.   Similarly, no judge is questioned about the rightness of Brown v Board of Education or whether civil rights exist; Brown was a narrow decision and broader civil rights were secured through the legislative process.

But a right created at the bang of a judge’s gavel can be subject to constant second-guessing. It can submerge the nation into endless turmoil about whether the next crop of judges will agree with the previous ones. If the court can grant rights, it can also take them away and vice-versa. For instance, Bowers v Hardwick (1986) upheld a state’s right to criminalize homosexual sex. A few years later the Court overturned their ruling with Lawrence v Kansas (2003).

A few short years ago then-nominee John Roberts’ contended that Roe is the “settled law of the land”, yet subsequent decisions throughout the decades have created seismic shifts on the issue:

Harris v McRae (1980) upheld the so-called Hyde Amendment limiting federal abortion funding to life saving procedures.

Webster v Reproductive Health Services (1989) allowed states to prohibit government workers or facilities from providing abortion assistance.

Planned Parenthood v Casey (1992), while upholding the core of Roe, eliminated Blackmun’s trimester invention. (By then advances in technology had made fetus viability as early as 23 weeks vs 28 at the time Roe was decided.) More importantly it changed the burden of proof. Roe placed the burden on the state to show it had a compelling reason to regulate abortion; Casey turned that on its head and placed the burden on plaintiffs to show a state regulation was an undue burden on a woman’s ability to obtain an abortion.

Gonzales v Carhart (2007) upheld the federal ban on so-called “partial birth abortions,” or in medical parlance, “dilation and extraction.”   The procedure involves maneuvering the fetus until it is breech, piercing the back of the skull, vacuuming the brains out and, with the fetus’ skull now collapsed, withdrawing the dead fetus through the birth canal. In writing for the majority Justice Anthony Kennedy cited a “consequential moral difference between dilation and extraction and other procedures.” Carhart was decided 5-4 with the liberal justices dissenting.

The result of all of this instability is an avalanche of legislation: from 2011- 2013 states passed 205 abortion restrictions, more than the 189 passed in the previous decade.

Staunch abortion advocate Ginsberg said Roe went “too far too soon,” and feared it would galvanize an anti-abortion movement. Indeed it has. As we have learned, activism and reaction should be expected when legislating from the bench.

Aftermath

While the case was still under review Weddington ran for and won a seat in the Texas House of Representatives where she served three terms. She was only 27 when she argued Roe, and remains the youngest person to ever to argue a successful case before the Supreme Court.

And Norma McCorvey, the “Roe” in Roe v Wade?

Shortly after the case was decided she identified herself as Roe. During the rest of the 70’s and 80’s she was an advocate and spokeswoman for the pro-choice movement. In 1994 she was working at a clinic in Dallas when Operation Rescue, an anti-abortion organization, moved in next door. She befriended the pastor there, had a strong conversion to Christianity in 1995, later joined the Catholic church, and has since become a spokeswoman for the pro-life movement.

She published two autobiographies (ghost written)- the pro-choice I Am Roe (1994) and the pro-life Won By Love (1997). She and Weddington have not had any contact since her conversion.

McCorvey never attended any of the trial proceedings.

Prior to the trial she gave birth and the baby was successfully adopted.

Up next: They All Look Alike

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