I know I did some post like this at the original MF Blog. I guess it is time to re-state it (not even going back to find it in the MF Blog archive that is, alas, not available to the public any longer).
I am seeing with more and more frequency the refrain from even so-called liberals that it is okay to overrule Roe v. Wade because it was such a poorly reasoned decision. Even the "Notorious RBG" has long doubted its wisdom to the extent she thinks we were, as a nation, better off with it never having been decided, and instead just fighting the battles legislatively throughout the nation in the supposedly more culturally liberal 1970s. Ginsburg also criticizes the decision for being doctor-centered, not "woman-centered." Just read the Wiki entry on Roe with all the liberals, including Ginsburg, joining conservatives in criticizing the decision from a jurisprudential perspective.
It is, therefore, perhaps surprising I, as a mere guy, remain a stalwart defender of the jurisprudence of Blackmun's opinion in Roe v. Wade. Justice Blackmun's majority decision (7-2, not 5-4, in case anyone was wanting to count) was a Holmeisan legal analysis* applying the right to privacy in the most practical terms. First, we should begin with a proposition even the "Notorious RBG" and silly right wingers posing a moderates, like Megan McArdle, would agree with: What is more private than something inside a woman's body? I think this should be one of those truths that are self-evident, to, ahem, quote a particular Founder.
Justice Blackmun had been general counsel for the Mayo Clinic in the 1950s. In that position, he had personally seen how abortions worked for well off and connected white folks, where abortions wer secretly performed and then mostly written down in hospital records as "miscarriages." He also knew how anti-abortion laws, which grew in earnest starting in the late 19th Century, had led to death and or at least severe physical harm to women who undertook the legal, cultural, and personal emotional and physical dangers in attempting to undergo an abortion. It was Blackmun who called upon the AMA and other medical experts to submit what are called "friend of the Court briefs" to help the Court determine when life begins, not from a perspective of philosophy or theology, but through a simple, logical, practical inquiry, which is: When is a fetus viable to be able to live on its own outside the body of the woman?
In 1973, medical expert opinion determined, practically speaking, viability would not occur in most pregnancies until the end of six months into the pregnancy. And medical expert opinion determined the best way to divide the stages from conception to birth was through trimesters, as there was a marked difference between conception and the third month, and again from the third month to the sixth, and then again to the ninth and probable birth.
What confuses too many lawyer and political commentators is that the trimester analysis was rooted, again, in Holmesian practicality. It was not rooted in any hard and fast legal proposition. So when we hear someone say, "Where is the trimester system in the Constitution?" we answer: The trimester analysis is merely the application of Constitutional principles of privacy when confronted with information and analysis from experts in medical science and medical technology.
I am fond of saying to anti-abortionists that Roe v. Wade is the Supreme Court's pronouncement on the rights of fetuses to override Moms after viability. For Blackmun admits a viable fetus can also have his or her own "rights." Blackmun recognized, if the fetus is able to live outside the woman's body, and may be removed from a woman without undermining a woman's health or life, then, once the fetus is outside the woman's body, it is then "born." And he knew from our life experience we don't count our birthdays from the day we become a zygote. It is when we are born. The U.S. Constitution itself talks about persons who have been "born" (See: Article II, Section 1, which set forth the qualifications to be president), and, later, in the Fourteenth Amendment, where the Framers of that amendment expressly discussed persons who are "born."
There is a loophole to Blackmun's balancing of fetal and women's rights, however, and the loophole expressly favors the living being outside the womb, that is the woman. It is, however, a loophole based in practicality and humanity's most simple values, which is protecting the Mom to be. In the companion case to Roe, known as Doe v. Bolton, Justice Blackmun, again speaking for a seven justice majority, said, even after viability, the right to privacy for the pregnant woman extends to protect the pregnant woman's own "health" or "life." For years, anti-abortionists derided this loophole by sardonically asking "Well, what does 'health' mean, anyway? A hangnail?" But, as far as I have seen, most anti-abortionists have had no interest in crafting legislation to help define "health," and perhaps for a good "political" reason. They would rather stay in theory land, which makes it so frustrating when even the Notorious RBG herself stays in theory land when criticizing Blackmun's jurisprudence in Roe and Doe. Blackmun's hope had been that legislatures would take up the mantle of defining "health" in even more practical terms so that policy experience, not logic, would drive future analyses, particularly as medical technology continued to advance. This, again, is Holmesian jurisprudence, which is designed to keep the Courts from getting too mired in policy details.
What is also interesting in reading Roe is Blackmun's history of abortion laws and abortion in Western culture throughout two plus millennia. Blackmun notes, from scholarly studies, there were few prosecutions for abortion at the time of the Revolution of 1776 and Constitution of 1787. He further notes the common law supported a right to an abortion up until quickening (something Jewish philosophy also allowed). He points out how the Catholic Church had a mixed feeling about abortion throughout the centuries, and it was not until the American Medical Assn. came out against abortion in the 1860s that the Church authorities in Rome seized upon it, even though the AMA was more motivated in going against mid-wives who not only delivered healthy babies with healthy moms because they washed their hands, but could also perform abortions more safely than doctors, most of whom were still not washing their hands before such invasive procedures. What changed, though, from the 1860s to the 1960s was that the abortion medical procedure became much more safe; so safe it was, in the first and parts of second trimesters, safer than going through the pregnancy.
All of this led Blackmun to conclude, along with six of his then Brethren, including Chief Justice Warren Burger, a Nixon appointee (as was Blackmun), to uphold Jane Roe's and Jane Doe's rights to seek an abortion, and not to be criminally prosecuted for that decision and action. It is so unfortunate we live in a time where there is so little comprehension ability among people in elite positions, which includes Ruth Bader Ginsburg's incoherent criticism of Roe and Doe. I say it is incoherent because Blackmun makes clear in both decisions the privacy right of the woman is paramount. The fact he said the woman needs to consult with a doctor was not to say the doctor makes the decision, as much as to recognize abortion was a surgical procedure. If I decide to have a heart transplant, I don't do it without finding a surgeon who agrees with me. Yes, Blackmun writing today would be more direct and obvious, but Ginsburg is wrongly attacking Blackmun's phrasing from a sensibility that was not mainstream in 1973, the year Roe and Doe were decided, and she is missing the import and substance of the decisions. The majority opinion in both cases clearly talk about an individual woman's rights. And Justice White, in his dissenting opinion in Doe v. Bolton, says at one point, "The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries." Somehow Wizzer White recognized the decision was "woman-centric." I do not understand how Ginsburg has gotten away with this viewpoint over the years, other than to say most people have never read either decision--and if they have, they suffer from severe comprehension problems.
Again, the Roe and Doe decisions are about a re-affirmation of the right to privacy in the most powerful application we can imagine, again, something inside our bodies that we don't want in our bodies. Well, let's say this properly. It's about women having the right to determine what goes on inside their own bodies.
...I know, I know: "Well, she should have thought of that before she got pregnant!"
I love that so-called argument because, so often, it exposes the true bias of the speaker. I say to such critics who use that line: "You are now saying you see pregnancy as a punishment, and lurking in that is what the moderns now call 'slut-shaming.'" In recent years, we have seen this precise type of "punishment ethos" when many anti-abortion activists bared their teeth in being openly hostile to the very idea of contraception. For too many anti-abortion activists, it was never really about preventing unwanted pregnancies. It was never even about fetuses. At the moment the mainstream of the anti-abortion movement proclaimed loudly and clearly they were against contraception, too, they exposed themselves as another manifestation of Western religion wanting to regulate and oppress women's sexual lives and autonomy.
I recognize that Roe v. Wade and Doe v. Bolton will be overruled if Trump and the Republicans get their choice to replace the retiring Tony Kennedy. I get that. I just think we ought to have someone, anyone, defend the two decisions from a jurisprudential standpoint because the attack on the judicial integrity and legitimacy of Roe and Doe is ultimately an attack on a very fundamental understanding of American jurisprudence.
Still, I wonder what happens when the arguments against Roe and Doe ultimately get made at the US Supreme Court. Back in the early 1990s, when right wingers attempted to overturn Roe and Doe, and came very close in the Planned Parenthood v. Casey case, the right wingers backing the lawsuit hired Charles Fried, Reagan's solicitor general, to brief and argue the case. Fried did not want to attack the overall right to privacy, and for that, he received criticism from anti-abortion activists, and also from Justice Scalia in oral argument. My take is this: Let's protest and fight as much as we can, but also let's observe how this plays out. We will see this fight again over whether overruling the right to abortion means overruling the right to privacy. If the right wing activists pushing a test case decide to sidestep the issue of privacy, it may become too tricky for them in trying to re-define a "person," and with consequences going so far deep into our culture that a certain Chief Justice (ahem, John Roberts) may yet blanch. I would not rely on that scenario, but it is something to observe as the fight ensues. But, in the meantime, let's at least defend Justice Blackmun's jurisprudence in Roe and Doe, shall we?
Still, I wonder what happens when the arguments against Roe and Doe ultimately get made at the US Supreme Court. Back in the early 1990s, when right wingers attempted to overturn Roe and Doe, and came very close in the Planned Parenthood v. Casey case, the right wingers backing the lawsuit hired Charles Fried, Reagan's solicitor general, to brief and argue the case. Fried did not want to attack the overall right to privacy, and for that, he received criticism from anti-abortion activists, and also from Justice Scalia in oral argument. My take is this: Let's protest and fight as much as we can, but also let's observe how this plays out. We will see this fight again over whether overruling the right to abortion means overruling the right to privacy. If the right wing activists pushing a test case decide to sidestep the issue of privacy, it may become too tricky for them in trying to re-define a "person," and with consequences going so far deep into our culture that a certain Chief Justice (ahem, John Roberts) may yet blanch. I would not rely on that scenario, but it is something to observe as the fight ensues. But, in the meantime, let's at least defend Justice Blackmun's jurisprudence in Roe and Doe, shall we?
*Holmes famously wrote, when writing about the Common Law: "The life of the law has not been logic; it has been experience." Holmes was an early proponent of what later became known as "legal realism," believing in a practical approach and application of the law. This dovetailed with Justice Louis Brandeis's legal philosophy, which relied as much on sociological study as legal theorizing. Both Holmes and Brandeis harkened back, whether they knew it or not, to James Madison's Federalist Paper no. 37, where Madison admitted the Constitution was full of vague phrases, but that "posterity" would fill in their meaning. It also harkened back to Chief Justice John Marshall who, in M'Culloch v. Maryland, said the Constitution must be broadly construed to allow for exigencies which will arise, which included technological changes.
