The principal errors of law and reasoning in the verdict are as follows:
- Viewing a woman’s interest in having an abortion as a “right of privacy” issue, when it is manifestly an issue of personal liberty, having nothing to do with privacy in the standard legal or common meanings of the term.
- Forbidding the state to infringe on this liberty, even if due process of law is applied. States in fact regularly limit the liberty of citizens, so “substantive due process” can only be applied selectively, for fundamental liberties the Court feels should not be denied, even with due process of law. It is unclear why abortion should receive this special status.
- Arbitrarily applying the “compelling state interest” standard to a Due Process case, which is utterly without precedent.
- Proclaiming neutrality on the issue of when life begins, yet imposing a viability standard that denies the state any right to regulate abortion in the interest of prenatal life as existent life.
- Forbidding any regulation of first-trimester abortion for any reason, effectively making a medical judgment of safety, and arbitrarily giving abortion a special immunity enjoyed by no other medical procedure.
- Overruling the Texas abortion statutes in toto, going well beyond what would be logically required by the Court’s own reasoning.
Counterintuitively, the Court found the least offensive of the Texas abortion statutes, Article 1196, unconstitutional: “Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” This was ruled unconstitutional because it did not account for the stage of pregnancy nor for the mother’s health. Then the Court drew the bizarre conclusion that all Texas abortion statutes must fall, since without Article 1196, there would be no exception for medical emergencies! This is plainly absurd: it was the Court that chose to strike down the medical exception in Article 1196, when a more rational action would have been to limit the applicability of the statutes which proscribe abortions. The Court’s decision to first strike Article 1196 results in the sophistical conclusion that all the abortion statutes are unconstitutional. This includes Article 1194: “If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.” Guided by the standard of interest in the mother’s health, there would be no reason to strike this article down. The Court clearly went out of its way to strike down in toto legislation which at worst needed only to be limited in scope.
As Justice Rehnquist and nearly every conservative legal commentator has noted, the Court used the Fourteenth Amendment to circumscribe state powers in a way contrary to the intent of the drafters of the amendment, seeing that many criminal abortion statutes now deemed unconstitutional were contemporary with the amendment’s ratification. 100 years of jurisprudence were ignored in order to reach this verdict, which, as we have seen, contains additional internal contradictions. It is the height of hypocrisy and intellectual dishonesty to demand respect of Roe solely as established precedent without regard to the strength of its argument, when this decision itself displayed breathtaking contempt for precedent.
The companion case, Doe v. Bolton, would be an even more extravagant decision, expanding the definition of “health” of the mother to include psychological well-being, which effectively means the caprice and whim of the mother have greater importance than the potential life of even a viable fetus. The combination of the two cases effectively mandated the legalization of abortion on demand at any stage of pregnancy, despite the attempt of Roe’s majority to posture as a compromise position, not recognizing any absolute right to an abortion. It is important to emphasize that these decisions did not merely legalize abortion, but mandated its legalization in every state. After much hand-wringing about the complexity and ambiguity of the abortion question, the Court imposed a one-size-fits-all standard for all time to be imposed on society. Legislatures and their constituents were disenfranchised of their right to come up with their own unique solutions to these difficult and perhaps unanswerable questions, to which the Court pretended to give a definitive answer.
Although the ruling in Roe was a terrible argument, introducing bad jurisprudence and irrelevant legal standards, and then misapplying these principles to the case, it is an established precedent. Even conservative jurists acknowledge that it is not enough for a ruling to be wrong in order to be overturned, but it must somehow be unworkable or so flagrantly unjust that it would be more damaging to the Court’s credibility to uphold the precedent than to overturn it.
Later abortion rulings were conflicting and confusing, depending more on the politics of the justices than on any legal principle. In Planned Parenthood v. Casey (1992), a split Supreme Court arbitrarily adopted an “undue burden” standard for regulating abortion, in lieu of the trimester system of Roe. Casey recognized that Roe contradicted its own acknowledgement of a state’s legitimate interest in protecting prenatal life, by denying states the right to regulate abortion prior to viability on the basis of anything other than the woman’s health. Casey allowed states to regulate abortion in ways that informed the woman’s decision without denying her the right to make the final decision, nor imposing an “undue burden” on her ability to procure an abortion, by placing a “substantial obstacle” to this end. The state could pass measures designed to persuade her to choose childbirth. The state could also impose health and safety regulations on abortion, like any other medical procedure.
The majority interpreted this “undue burden” standard broadly, so that merely notifying the spouse was construed to somehow be an “undue burden” on a woman seeking an abortion. The dissenters suggested that the correct approach would be to regard the woman’s liberty as subject to regulation when rationally related to a legitimate state interest, giving the state the benefit of the doubt as in most Due Process cases. The Casey majority would exalt abortion to a fundamental right, contrary to all legal, political, and social history. Thus it has its own peculiar jurisprudence, and Supreme Court abortion decisions effectively constitute a complex abortion code to be imposed on the states.
As subsequent history has proven, the Court did not settle the abortion issue, but nationalized it, creating militant opposition groups with national reach. The Court, by legislating from the bench one time too many, itself became an object of competing political ideologies. Instead of debating abortion in state legislatures, the battle is waged through judicial appointments, and as Roecannot stand on the basis of its weak arguments alone, the abortion issue will be held hostage by the courts until the pre-Warren understanding of the role of the judiciary holds sway once again.
