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The Wages of Crying Wolf: A Comment

on Roe v. Wade

John Hart Ely

© 1973 by John Hart Ely.

All rights reserved. Reprinted May 1973 from The Yale Law Journal, Volume 82, Number 5, April 1973,

with permission.

Copies of this and other reprints-no charge for any

three, 200 each thereafter—are available from:

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The Wages of Crying Wolf: A Comment on Roe v. Wade

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The interests of the mother and the fetus are opposed. On which side should the State throw its weight? The issue is volatile; and it is resolved by the moral code which an individual has.

1

In Roe v. Wade, decided January 22, 1973, the Supreme CourtJustice Blackmun speaking for everyone but Justices White and Rehnquist:-held unconstitutional Texas's (and virtually every other state's+) criminal abortion statute. The broad outlines of its argument are not difficult to make out:

1. The right to privacy, though not explicitly mentioned in the Constitution, is protected by the Due Process Clause of the Fourteenth Amendment.5

2. This right "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.'

3. This right to an abortion is "fundamental” and can therefore be regulated only on the basis of a "compelling” state interest.?

4. The state does have two “important and legitimate” interests here, the first in protecting maternal health, the second in protecting the life (or potential life”) of the fetus.10 But neither can be counted "compelling” throughout the entire pregnancy: Each matures with the unborn child.

These interests are separate and distinct. Each grows in substan

Professor of Law, Yale Law School. 1. United States v. Vuitch, 402 U.S. 62, 80 (1971) (Douglas, J., dissenting in part). 2. 93 S. Ct. 705 (1973).

3. Were the dissents adequate, this comment would be unnecessary. But each is so brief as to signal no particular conviction that Roe represents an important, or unusually dangerous, constitutional development.

4. See 93 S. Ct. at 709-10 n.2. See also Doe v. Bolton, 93 S. Ct. 739, 742 (1973).
5. Id. at 727. But cf. note 58 infra.
6. 93 S. Ct. at 727.
7. Id. at 728.
8. Id. at 731.

9. The Court indicates that the constitutional issue is not to be solved by attempting to answer "the difficult question of when life begins.” Id. at 730. See also id. at 725. But see pp. 925-26 infra.

10. The suggestion that the interest in protecting prenatal life should not be considered because the original legislative history of most laws restricting abortion concerned itself with maternal health, see 93 S. Ct. at 725-26, is rightly rejected-by clear implication in Roe and rather explicitly in Doe. Id. at 747.

Roe v. Wade

tiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."11

5. During the first trimester of pregnancy, neither interest is sufficiently compelling to justify any interference with the decision of the woman and her physician. Appellants have referred the Court to medical data indicating that mortality rates for women undergoing early abortions, where abortion is legal, “appear to be as low as or lower than the rates for normal childbirth."12 Thus the state's interest in protecting maternal health is not compelling during the first trimester. Since the interest in protecting the fetus is not yet compelling either, 13 during the first trimester the state can neither prohibit an abortion nor regulate the conditions under which one is performed. 14

6. As we move into the second trimester, the interest in pro. tecting the fetus remains less than compelling, and the decision to have an abortion thus continues to control. However, at this point the health risks of abortion begin to exceed those of childbirth. “It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health."15 Abortion may not be prohibited during the second trimester, however.16

7. At the point at which the fetus becomes viable!? the interest in protecting it becomes compelling, 18 and therefore from that point on the state can prohibit abortions except-and this limitation is also apparently a constitutional command, though it receives no justification in the opinion-when they are necessary to protect maternal life or health.19

11. id. at 731.
12. Id. at 725. But cf. note 117 infra.
13. See pp. 925-26 infra.
14. See 93 S. Cí. at 732. But see note 117 infra.
15. 93 S. Ct. at 732. But see note 117 infra.
16. 93 S. Ct. at 732.

17. This, the Court tells us, is somewhere between the twenty-fourth and twenty-eighth weeks. Id. at 730. But cf. p. 924 infra.

18. See p. 924 infra.

19. 93 S. Ct. at 732. (Thus the statutes of most states must be unconstitutional even as applied to the final trimester, since they permit abortion only for the purpose of saving the mother's life. See id. at 709.) This holding-that even after viability the mother's life or health (which presumably is to be defined very broadly indeed, so as to include what many might regard as the mother's convenience, see 93 ś. Ct. at 755 (Burger, C. J., concurring)); United States v. Vuitch, 402 U.S. 62 (1971), must, as a matter of constitutional law, take precedence over what the Court seems prepared to grant at this point has become the fetus's life, see p. 924 infra-seems to me at least as controversial as its hold. ing respecting the period prior to viability. (Typically, of course, one is not privileged even statutorily, let alone constitutionally, to take another's life in order to save his own life, much less his health.) Since, however, the Court does not see fit to defend this aspect of its decision at all, there is not a great deal that can be said by way of criticism.

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