Roe v. Wade
The progeny of Griswold v. Connecticut
No one who has read my essay on Griswold v. Connecticut can doubt that far from being a victory for "choice" and individual rights, the decision--rooted as it is in altruism-collectivism-statism, and an utter disregard of federalism, separation of powers and judicial restraint--exemplifies "Living Constitutionalism" at its worst and most dangerous.
Dangerous, because as I said at the conclusion of my Griswold essay Justice "Douglas’s ersatz 'right to privacy' would eight years later be employed by the Supreme Court in Roe v. Wade to justify invalidating virtually every state law affecting abortion." And in so doing, constitutionalize the murder of millions of the unborn.
A little history. A Texas statute, like those in a majority of the states at that time, had outlawed abortion except to save the mother's life.
Jane Roe (a pseudonym)--unmarried, pregnant, and a pawn of pro-abortion zealots such as Planned Parenthood--sued in a federal court to declare the Texas antiabortion statute unconstitutional.
Relying principally on the Griswold case and the Fourteenth Amendment's concept of " substantive due process," Roe claimed that the statutes abridged her rights of personal "privacy" and "liberty." She cited no other source, constitutional or otherwise, to justify her alleged right to an abortion--that is, her alleged right to destroy the fetus she was carrying.
The Supreme Court's decision in Roe was, to be charitable, fragmented—even more than Griswold's had been. Of the nine Supreme Court Roe justices, six wrote separate opinions. The majority opinion was written by Justice Blackmun and concurred in by Chief Justice Burger, Justices Douglas, Brennan, Stewart, Marshall, and Powell. Three of the concurring justices—Burger, Douglas and Stewart—wrote their own individual opinions. While Justice Rehnquist joined in a dissent by Justice White, Rehnquist wrote a separate dissenting opinion of his own. This was a sure sign--actually a confession--that the majority was on very thin ice.
In his majority opinion, Blackmun ruled the Texas anti-abortion statute unconstitutional.
Here's how he reached that momentous conclusion.
First, by canvassing a wide variety of sources, seeking to ascertain what their attitudes were toward abortion--as if that had anything to do with whether there was a "right of privacy" lurking somewhere in the Constitution that would justify ripping a fetus from a woman's womb as a matter of convenience.
Blackmun examined ancient views, which were inconclusive.
He claimed that the Hippocratic Oath's rigid anti-abortion stand had been "unpopular" (with whom, and why?) at the time it was formulated.
He perused English common law, where to support the conclusion he was striving for, he hit pay dirt: Even under early English statutes abortion to save the mother's life was not considered a crime.
So what? The case was whether the sovereign state of Texas had Tenth Amendment power to pass an anti-abortion statute. If it did, was there an explicit provision of the Constitution--an explicit right in Roe--violated by the statute? English law should have had nothing to do with the answer to those questions.
Blackmun liked British law because he didn't fare as well in his survey of American law: "By the end of the 1950s," he wrote, "a large majority of the jurisdictions [the states, in the United States] banned abortion, however and whenever performed, unless done to save or preserve the life of the mother."
Summarizing his survey of the past, Blackmun observed:
It is thus apparent that at [English] common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently  in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
These observations, of course, had nothing to do with the Tenth Amendment, federalism, separation of powers, the appropriate scope of judicial review, or the Bill of Rights--except to implicitly acknowledge that heretofore legislation on the subject of abortion was exclusively the province of the states, whose governors, legislators and courts apparently never realized that their laws somehow infringed a phantomlike "right of privacy."
Next, Blackmun turned his attention to medical views, past and then-prevailing. The American Medical Association, since mid-nineteenth century, had bitterly condemned abortion, only to ameliorate its harsh view in the mid-1960s. More pay dirt. In reviewing the American Public Health Association's pro-abortion position, he noted that just the year before, the American Bar Association had approved a Uniform Abortion Act prepared by the prestigious Conference of Commissioners on Uniform State Laws. Blackmun's potpourri of current views now included legal as well as medical.
It was embarrassingly obvious what was Blackmun seeking from all this opinion-gathering: some kind of historical, cultural, social justification for abortion. If in these respects abortion had been treated even equivocally, the Court's task—coming up with a favorable abortion ruling—would be easier. Blackmun and his colleagues could write, as it were, on a clean slate. Ironically, but not surprisingly, what they wrote was, in turn, equivocal:
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. (My emphasis.)
"Important state interests," again! And who, or what, is this "state"? Voters, neighbors, relatives, politicians, legislators, judges?
Government interests his time not only in marital sexual conduct (Griswold) and weak, dependent women (Muller). But in the unborn, and the wombs of the women who carried them--with the former coming out the losers.
It is difficult to imagine any more naked collectivist-statist, let alone non-constitutional, ruling.
The Court had before it a case raising fundamental constitutional questions of federalism, separation of powers, the scope of judicial review, the Tenth Amendment, the Bill of Rights.
So Americans had the right to expect a United States Supreme Court opinion that was a dazzling array of legal/constitutional thought, adorned with impeccable reasoning and irrefutable logic. We find in Roe, instead, as sole constitutional justification for its decision, the amorphous, Douglas-invented "right of personal privacy" imported in all its absurdity from Griswold.
Indeed, even Blackmun had to concede that "privacy" was nowhere to be found in the Constitution.
So, following Douglas's earlier lead, Blackmun tried to weave a "privacy" pattern into the Bill of Rights by borrowing threads where he could. Yet Blackmun's entire fifty-four-page opinion—which would invalidate anti-abortion laws nationwide—contained only a single paragraph devoted to the constitutional basis for the Court's conclusion:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as ... 1891 ... the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment ... in the Fourth and Fifth Amendments . . . in the penumbras of the Bill of Rights ... in the Ninth Amendment ... or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment ... These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty" . . . are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage ... procreation ... contraception . . . family relationships ... and child rearing and education....
So the unborn were to die because of roots, penumbras, ordered liberty . . . and be sacrificed on the altar of the Living Constitution's collectivism and statism.
The Court's nearly literal Solomonic decision divided the fetus this way:Because the Court judged abortions within the first trimester to be as medically safe (in 1973) as, or even safer than, normal childbirth, abortions in the first three months of pregnancy "must be left to the medical judgment of the pregnant [woman and her] attending physician.
Because the Court assumed a state interest in the health of the pregnant woman, abortions during "the stage subsequent to approximately the end of the first trimester" could be regulated "in ways that are reasonably related to maternal health" (e.g., licensed physicians, adequate facilities).
Because the Court asserted a state interest in potential life, "[f]or the stage subsequent to viability [approximately during the final trimester], the state . . . may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." (Note the Court's presumptuous disregard of federalism, separation of powers and judicial restraint in virtually legislating for the fifty states.)
Few realized that Roe v. Wade opened a Pandora's Box when the Supreme Court cavalierly legitimized a "state interest" in pregnant women and their unborn children. This time around—in Roe--anti-abortion laws were struck down to the glee of the "pro-choice" zealots.
They should not have rejoiced, not only because of the uncivilized result of the now decades-old Roe decision, but because of its implications.
This time, some women were permitted to have abortions, sometime.
But what about next time, if the "state interest" turns out to be a governmental Malthusian need to compel abortions?
A farfetched notion?
Not if we accept the ultimate logic of Roe v. Wade—as seen from the perspective of a 1977 Supreme Court case.
The states, in the wake of Roe v.Wade, were obliged to revise not only their abortion laws, but also a considerable number of related laws which were directly and indirectly affected by that decision. One example was Medicaid, which prior to Roe had funded certain childbearing expenses.
Connecticut Welfare Department regulations, which paid for childbirth expenses, limited state Medicaid benefits for first trimester abortions to those which were "medically necessary." So in a 1977 case (Maher v. [a different] Roe) the Supreme Court was asked to decide "whether the Constitution requires a . . . State to pay for . . . [non-medically necessary] abortions when it pays for childbirth." (My emphasis.)
In other words, did Connecticut have a constitutional right to a Medicaid funding policy which treated birth and abortion differently?
Before answering that question, the Court felt obliged to point out what Roe v. Wade had not held. According to the 1977 Maher Court, "Roe did not declare an unqualified constitutional right to an abortion . . . . * * * [The decision] implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public [Medicaid]funds."
Under, or despite, Roe, state governments can make "value judgments"--which means passing laws--in which statutes limit abortions.
All well and good. But pro-life people should not yet have applauded.
If the state can favor childbirth over abortion, it can favor abortion over childbirth.
Following the 6-3 majority's statement that "[t]he State unquestionably has a 'strong and legitimate interest in encouraging normal childbirth' . . . an interest honored over the centuries," there appeared a footnote by the majority as astonishing as it was ominous:
In addition to the direct interest in protecting the fetus, a State may have legitimate demographic concerns about its rate of population growth. Suchconcerns are basic to the future of the State and in some circumstances could constitute a substantial reason for departure from a position of neutrality between abortion and childbirth. (My emphasis.)
If government is not "neutral," it tilts to one side or the other. And even if it tilts for childbirth and against abortion, under the rationales of Muller, Griswold, Roe, Maher and other decisions too numerous to count, it can as quickly and easily tilt against childbirth and for abortion--not unlike democratic India whose "demographic concerns about its rate of population growth" once prompted it to depart "from a position of neutrality between abortion and childbirth" by instituting a program of forced sterilization and Communist China whose need for male infants has for decades resulted in female infanticide.
This frightful story gets worse.
Three justices dissented in the Maher case, two of them the Court's leading "liberals." One might have expected a ringing denunciation from William Brennan and Thurgood Marshall of the majority's naked assertion that, should population grow too large (or food become too scarce), society could forcibly dump the unborn.
There was no denunciation.
Because in the end, both liberals and conservatives are all altruists, collectivists and statists, the only difference being what kind of government conduct they value or disvalue.
No one won in Roe v. Wade.