Legalese — Roe v. Wade

In light of the recent signing of Georgia House Bill 481, otherwise known as the “Heartbeat Bill,” it is likely that lawsuits will be filed to challenge that bill.  You can read a copy of the actual legislation by clicking here.  At the heart of those challenges, as well as the challenges of similar laws passed this year in other states, will be a challenge to Roe v. Wade, the United States Supreme Court Case that was handed down in 1973 that legalized abortion across America.

While most people are familiar with the name of “Roe v. Wade” and the basic fact that it legalized abortion, very few people have read all sixty some-odd pages of the decision or are familiar with the logic that the Supreme Court, via Justice Harry Blackmun’s decision, used to reach its conclusion. If you want to read the whole decision you can click here.  If you don’t, I thought I’d sum up the Court’s reasoning here.

Before I do that, let me make the following disclaimer: I am working very hard in writing this article to keep my personal opinion OUT of this article.  Nothing in this has anything to do with what I think.  My personal opinion is, for purposes of this article, irrelevant, and I will not be goaded into expressing my personal opinion in a public forum as I am forbidden by the rules of judicial conduct.  The vast majority of what I am ‘writing’ below is in the form of quotations, indicating that what I am writing is NOT MY WORDS.  However, since there is, as we say here in the south, “fixin’ to be” a great big national debate about whether Roe v. Wade is going to stand as the law of the land, I figure we ought to understand what the law of the land is.

That said, here is the reasoning, as expressed by Justice Blackmun, in Roe v. Wade:

Justice Blackmun first goes through a history of abortion both in America and through ancient times.  He notes “One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.”   He then quotes Oliver Wendell Holmes in Lochner v. New York, 198 U.S. 45 (1905) as saying “[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”  This means, in plain English, that the Constitution is not meant to reflect our personal views, it’s about what the law says.

In Roe, the case is about a woman, calling herself Jane Roe, who sued the state of Texas, saying that the Texas abortion laws were unconstitutional.  She was unable to get an abortion because under Texas law her life was not in danger, and she couldn’t afford to travel to another state.  She said the Texas law was unconstitutional vague, and the law compromised her right of personal privacy under the bill of rights and other amendments of the Constitution.

In its ultimate decision, the Court talked a lot about the right of privacy.  In Section VIII of the decision, Justice Blackmon says that the Supreme 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 Justice have, indeed, found at least the roots of that right in the first Amendment [Citations omitted]; in the Fourth and Fifth Amendments, [Citations omitted]; in the penumbras of the Bill of Rights [Citations omitted]; in the Ninth Amendment, [Citations omitted]; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment [Citations omitted.]  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 this right has some extension to activities relating to marriage…procreation…contraception…family relationships…and childrearing and education.”  [Citations omitted.]  “This right to 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.”

There is a balancing, however, of the privacy interests of the mother and the right of the state to protect the developing fetus.  “The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate….At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.  The privacy right involved, therefore, cannot be said to be absolute….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.”

“Where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest,’…and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.”  [Citations omitted.]  “The Constitution does not define ‘person’ in so many words.  Section 1 of the Fourteenth Amendment contains three references to ‘person.’  The first, in defining ‘citizens,’ speaks of ‘persons born or naturalized in the United States.’  The word also appears both in the Due Process Clause and the Equal Protection Clause….[T]he use of the word is such that is has application only post-natally.”

“The pregnant woman cannot be isolated in her privacy.  She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus.”   “[I]t is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother or that of potential human life, become significantly involved.  The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly….We need not resolve the difficult question of when life begins.  When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

“With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability.  This is so because the fetus then presumably has the capability of meaningful life outside of the mother’s womb.  State regulation protective of fetal life after viability thus has both logical and biological justification.  If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”

Of course, this is just a summary, and while it is twice as long as most of my columns, it is still just a handful of quotes from a 34 page majority opinion, and I encourage you to read the whole thing yourself to understand the Court’s reasoning to decide whether or not you agree with it.  No doubt there will be a great deal of conversation about whether or not this decision will stand in coming months and I believe that in order to have an intelligent opinion about the matter, you need to understand the legal reasoning behind it, not just the emotional or theological reasoning behind your opinions on abortion.

This article is being offered for informational purposes only and does not constitute legal advice or opinion.