Roe and Doe for Forty Years

This past month marked 40 years since the U.S. Supreme Court decisions in Roe v. Wade (Roe) [1] and its lesser known companion case, Doe v. Bolton (Bolton) [2], that on constitutional grounds severely restricted the states as to the abortions they could prohibit by law. Roe was a case out of Texas where it was a crime to “procure an abortion,” or to attempt one, except for abortions “procured or attempted by medical advice for the purpose of saving the life of the mother.” A majority of the states had similar laws at the time, and the law under consideration in Roe was representative of laws that had been in effect for a long time throughout the country.

Bolton was a Georgia case that involved an abortion law that had been recently enacted, and the court believed it required separate consideration. Like the Texas law, Georgia allowed an exception where “continuation of the pregnancy would endanger the life of the pregnant woman….” But Georgia had additional exceptions for pregnancies that would “seriously and permanently injure” the woman’s health, for cases where the “fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect,” or where the “pregnancy resulted from forcible or statutory rape.”

The Roe case began as a federal action brought by Jane Roe, now known as Norma L. McCorvey, against the District Attorney of Dallas County, Texas where she resided, seeking a declaration that the Texas abortion law was unconstitutional. Ms. McCorvey was unmarried and pregnant at the time she brought her case. She wanted an abortion, but was unable to do so in Texas because her life was not threatened by the continuation of her pregnancy. Additionally, she could not afford to travel to another state where abortion was legal. Her claim was that the law prohibiting her from obtaining an abortion was too vague to be constitutional, and that it also violated her constitutional right of privacy.

Mary Doe, the plaintiff in the Bolton case, was a 22-year-old resident of Georgia. She was married, and was nine weeks pregnant at the time she filed her case. She already had three living children, but the two oldest ones had been placed in a foster home because of her poverty and inability to care for them. The youngest child had been placed for adoption.  She and her husband had become reconciled after a previous abandonment by the husband which had forced her to live with her indigent parents and their eight children. He was a construction worker employed only sporadically. She had previously been a mental patient at the State Hospital. She had learned that an abortion could be performed on her with less danger to her health than if she gave birth to the child she was carrying. Because of her circumstances, she would be unable to care for or support the new child.

Under Georgia law Mary Doe was required to submit an application to obtain an abortion to the “Abortion Committee” of an Atlanta hospital. She did so, but her application was denied because she didn’t fall under one of the exceptions of her state’s abortion law. Her response was to file suit in the federal District Court.

In the Roe case, the District Court held that the Texas abortion law was unconstitutional and declared it void, basing its holding largely on the Ninth Amendment to the U.S. Constitution which reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” [3] The court also held that the law was unconstitutionally vague.

The District Court in the Bolton case found that the Georgia law violated Doe’s right of privacy, the three exceptions allowed being, in the court’s view, too restrictive. [4] In reaching this decision, the court specifically referred to the Supreme Court case of Griswold v. Connecticut (Griswold). [5] It is important to understand something of the Griswold case in order to comprehend fully what the Supreme Court was confronted with when it was called upon to decide the abortion question.

Estelle Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Dr. C. Lee Buxton was physician and a professor at the Yale Medical School who served as Medical Director for the League at its Center in New Haven. The center operated from November 1 to November 10, 1961, when both Ms. Griswold and Dr. Buxton were arrested.

Using “any drug, medicinal article or instrument” for birth control purposes was against the law in Connecticut at the time, and Ms. Griswold and Dr. Buxton were giving information, instruction, and medical advice to married persons on how to prevent conception. The wife would be examined and prescribed contraceptives at the center. Based on that conduct, the two were convicted as accessories to violating the birth control law.

The case made its way to the Supreme Court which struck down Connecticut’s birth control law. The Court’s rationale was that the Constitution contains within it a right to privacy which, although it is nowhere specifically mentioned in the Constitution, emanates from the document as a result of the articulated rights contained within it. An analysis of many of the specific constitutional guarantees, the Court said, reveals that there is a zone of privacy that is intended to be protected by the Constitution. Marriage being completely within that zone of privacy, Connecticut’s birth control law was found to be unconstitutionally invasive.

Roe and Bolton reached the Supreme Court with Griswold’s right of privacy established as precedent. It was, thus, a foregone conclusion that the Court was going to find that right applicable to a woman’s decision to have an abortion. The real question, then, was whether the Court was going to find that an unborn child had a right to life that outweighed the privacy right.

The Fourteenth Amendment to the Constitution prohibits the states from depriving “any person of life, liberty, or property, without due process of law…,” and from denying “to any person within its jurisdiction the equal protection of the laws.” [6] The Supreme Court, therefore, had to decide the question of whether a “fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment.” Clearly, if a fetus is such a “person,” the case of Ms. McCorvey and Mary Doe would have collapsed, “for the fetus’ right to life would then be guaranteed specifically by the Amendment.”

But, the Court held, there is no such right to life for a fetus. Simply put, the Court found no precedent that “person” in the Fourteenth Amendment includes the unborn, and, given the varying opinions on the subject through history, the Court said there was no justification for Texas to take one view of when human life begins and use it to deny a woman her constitutional right to privacy in the context of abortion.

Superficially it may seem that the Court had already painted itself into a corner before Roe and Bolton arrived for its review. The right to privacy in reproductive matters had already been established, and there was no precedent suggesting that a constitutional person was anyone other than one who had already been born. Thus, there was no balancing to be done between the right to life and the right to privacy, and that was ultimately what the Court concluded.

But lack of precedent is not outcome determinative in a Supreme Court case. Sometimes the Court has to deal with a legal question that hasn’t come up before and make a ruling anyway. Texas and certain amici had argued that a fetus is a person within the meaning of the Fourteenth Amendment, and in support of that position outlined “at length and in detail the well-known facts of fetal development.” The Court was essentially dismissive of what was presented to it in this regard, and retreated to a formalistic interpretation of the Fourteenth Amendment’s right to life.

That it was not necessary for the Court to take this approach is shown amply by the landmark school desegregation case, Brown v. Board of Education, which relied heavily on current psychological knowledge in order to reach its conclusion that separate schools for black children could not be made equal. [7] But when the Court in Roe was confronted with medical information showing that human life begins at conception, it was decided that the question was too deep and weighty to be answered with certainty, and that Texas was simply taking one of many possible views and imposing it on the unwilling with privacy interests to consider.

A human is an organism with human parents, that is, members of the homo sapiens species. Any other delineation is a political distinction, and political distinctions that exclude humans from the class of humans for the purpose of making their lives disposable have no place in a civilized republic. There is no ambiguity to fear in this connection; human life begins at fertilization, the point at which a new organism is formed, and should be afforded the protections of the Fourteenth Amendment from that moment forward. [8]

This understanding of when human life begins enjoys a clarity that no other definition can afford. Pro-life advocates are left to be puzzled as to why it doesn’t settle the issue once and for all. But it is a well known tendency for human beings to dehumanize those whom they wish to kill, and mere facts and reason prove to be weak instruments against it.

At the same time, advocates for life in any context do not make their case effective by ignoring the conditions that make the death of human beings a desirable outcome for some. In the context of abortion, those who wish to bring it to an end must come to grips with the motives behind it. Drug laws have not ended drug use, and laws outlawing abortions will not, by themselves, end abortions. If the goal is minimizing the actual occurrence of abortions, then public policy planning will have to go beyond mere prohibition.

The circumstances of Mary Doe in Bolton case are instructive. It is interesting that, while history remembers Roe, the facts of Bolton were actually more compelling. Mary Doe’s children were born within wedlock, but had already been removed from her because she was unable to care for them. She was unable to care for them because of her poverty. In other words, an abortion was sought in Bolton for the same reason that people have been killing their offspring for millennia: the child to be killed could not be cared for.

Here, then, is an example of circumstances that cause women to seek abortions that calls for an appropriate social response. It is to be seriously doubted that women in the position of Mary Doe will simply stop having abortions if they are made illegal. On the other hand, if such women stopped having abortions there would be a need to find care and support for the children who would then be coming into the world.

Ensuring care for these children is not an option that can be dispensed with if we are to be truly a pro-life culture. It makes little sense to advocate for the life of children in the womb only to leave them to a Darwinian fate after they are born, at least if disincentivizing abortion is to be a serious goal. What’s more, unless we are going to proliferate institutions, we are going to need to find means by which their natural mothers can care for them. In a word, we are going to have to tailor our social institutions in order to meet the crisis of over a million children per year being killed by abortion in the United States. [9]

While not every woman seeking an abortion presents a case as compelling as Mary Doe, it would be nothing less than willful blindness to insist that the existence of such circumstances is insignificant. To be pro-life means to oppose abortion and also to work against those social conditions that incentivize it. The task ahead is enormous, and well worth doing.

Jack Quirk