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The Yale Law Journal

Vol. 82: 920, 1973

I

A number of fairly standard criticisms can be made of Roe. A plausible narrower basis of decision, that of vagueness, is brushed aside in the rush toward broader ground.20 The opinion strikes the reader initially as a sort of guidebook, addressing questions not before the Court and drawing lines with an apparent precision one generally associates with a commissioner's regulations.21 On closer examination, however, the precision proves largely illusory. Confusing signals are emitted, particularly with respect to the nature of the doctor's responsibilities22 and the permissible scope of health regulations after the first trimester.23 The Court seems, moreover, to get carried away on the subject of remedies: Even assuming the case can be made for an unusually protected constitutional right to an abortion, it hardly seems necessary to have banned during the first trimester all state regulation of the conditions under which abortions can be performed.24

By terming such criticisms “standard," I do not mean to suggest they are unimportant, for they are not. But if they were all that was wrong with Roe, it would not merit special comment.25

20. The Court's theory seems to be that narrow grounds need not be considered when there is a broad one that will do the trick: “This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness.” 93 S. Ct. at 732. Compare id. at 710 n.3, 710-11; Doe v. Bolton, 93 S. Ct. at 747; Roe v. Wade, 314 F. Supp. 1217, 1223 (N.D. Tex. 1970); cases cited 93 S. Ct. at 727; and United States v. Vuitch, 402 U.S. 62 (1971), bearing in mind that the Supreme Court lacks jurisdiction to “construe" a state statute so as to save it from the vice of vagueness.

21. See also Doe v. Bolton, 93 S. Ct. 739 (1973).

22. Apparently doctors are expected, or at least can be required despite the decisions, to exercise their best “medical" or "clinical" judgment (and presumably can be prosecuted if they perform abortions conflicting with that judgment). 93 S. Ct. at 747, 751. But cf. United States v. Vuitch, 402 U.S. 62, 97 (Stewart, J., dissenting in part). But if it is unconstitutional to limit the justifications for an abortion to considerations of maternal life and health, what kind of “medical” judgment does the Court have in mind? See Stone, Abortion and the Supreme Court, MODERN MEDICINE (forthcoming 1973): “[T]here are no clear medical indications for abortion in the vast majority of cases. Where there are no indications, there is no room for clinical judgment.”.

23. Compare 93 S. Ct. at 732 with id. at 748-51. An additional element of confusion may have been injected by Justice Douglas's indication in his concurrence that “quickening" is the point at which the interest in protecting the fetus becomes compelling. Id. at 759. But see id. at 730, where the Court distinguishes quickening from viability and holds the latter to be the crucial point. See also id. at 732; p. 924 infra.

24. The state can require that the abortion be performed by a doctor, but that is all. But see note 117 infra. Even after the first trimester, the limits on state regulation of the conditions under which an abortion can be performed are extremely stringent. See Doe v. Bolton, 93 S. Ct. 739 (1973).

25. With respect to the capital punishment litigation too, the Court rejected a narrow ground of invalidation one term only to come back with a coup de main the next. Compare McGautha v. California, 402 U.S. 183 (1971) with Furman v. Georgia, 408 U.S. 238 (1972). Miranda v. Arizona, 384 U.S. 436 (1966), has something of a "guidebook" quality about it. See Dershowitz & Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 YALE L.J. 1198, 1210 (1971). United States v. Wade, 388 U.S. 218 (1967), to take but one example, has always struck

Roe v. Wade

II

Let us not underestimate what is at stake: Having an unwanted child can go a long way toward ruining a woman's life. 26 And at bottom Roe signals the Court's judgment that this result cannot be justified by any good that anti-abortion legislation accomplishes. This surely is an understandable conclusion-indeed it is one with which I agree27but ordinarily the Court claims no mandate to second-guess legislative balances, at least not when the Constitution has designated neither of the values in conflict as entitled to special protection.28 But even assuming it would be a good idea for the Court to assume this function, Roe seems a curious place to have begun. Laws prohibiting the use of "soft" drugs or, even more obviously, homosexual acts between consenting adults can stunt "the preferred life styles'29 of those against whom enforcement is threatened in very serious ways. It is clear such acts harm no one besides the participants, and indeed the case that the participants are harmed is a rather shaky one.30 Yet such laws sur

on the theory that there exists a societal consensus that the behavior involved is revolting or at any rate immoral.32 Of course the consensus is not universal but it is sufficient, and this is what is counted

vive, 81

me as a case where the Court, starting from the entirely valid realization that trials cannot be fair if lineups are not, went a bit far in limiting the appropriate remedies. And of course many opinions have emitted confusing signals respecting what is henceforth permissible. See, e.g., pp. 929-30 infra.

26. The child may not fare so well either. Of course the Court requires of the mother neither sort of showing, though it may be hoping the doctors will do so. But cf. note 22 supra.

It is also probably the case, although this is the sort of issue where reliable statistics and comparisons are largely unobtainable, that a number of women have died from illegal abortions who would have lived had they been able to secure legal abortions. It is a strange argument for the unconstitutionality of a law that those who evade it suffer, but it is one that must nevertheless be weighed in the balance as a cost of antiabortion legislation. The Court does not mention it, however; and given the severe restrictions it places on state regulation of the conditions under which an abortion can be performed, it apparently did not appreciably inform its judgment.

27. See pp. 926-27 infra.

28. See pp. 926-37 infra. Even where the Constitution does single out one of the values for special protection, the Court has shown an increasing tendency to avoid balancing, or at least to talk as though it were. See Brandenburg v. Ohio, 395 U.S. 444 (1969). See also United States v. Robel, 389 U.S. 258, 268 n.20 (1967); but see Note, Less Drastic Means and the First Amendment, 78 YALE L.J. 464, 467-68 (1969). See also United States v. O'Brien, 391 U.S. 367, 376-77 (1968); but cf. Ely, Legislative and Administrative Moti. vation in Constitutional Law, 79 Yale L.). 1205, 1340-41 (1970).

29. 93 S. Ct. at 759 (Douglas, J., concurring).

30. The claim that the participants are injuring their health seems at least as plausible respecting abortion. Cf. note 117 infra. To the extent that the use of soft drugs and homo. sexual activities interfere with the lives of those other than the participants, those interferences can be dealt with discretely.

31. Cf. Poe v. Ullman, 367 U.S. 497, 551-53 (1961), (Harlan, J., dissenting), quoted in part in Griswold v. Connecticut, 381 U.S. 479, 499 (1965) (Goldberg, J., concurring), distinguishing laws proscribing homosexual acts (even those performed in the home) as not involving the "right" at stake in those cases.

32. See, e.g., Poe v. Ullman, 367 U.S. 497, 545-46 (Harlan, J., dissenting).

The Yale Law Journal

Vol. 82: 920, 1973

crucial, to get the laws passed and keep them on the books. Whether anti-abortion legislation cramps the life style of an unwilling mother more significantly than anti-homosexuality legislation cramps the life style of a homosexual is a close question. But even granting that it does, the other side of the balance looks very different. For there is more than simple societal revulsion to support legislation restrictiog abortion:33 Abortion ends (or if it makes a difference, prevents) the life of a human being other than the one making the choice.

The Court's response here is simply not adequate. It agrees, indeed it holds, that after the point of viability (a concept it fails to note will become even less clear than it is now as the technology of birth continues to develop34) the interest in protecting the fetus is compelling. 35 Exactly why that is the magic moment is not made clear: Viability, as the Court defines it, 36 is achieved some six to twelve weeks after quickening:37 (Quickening is the point at which the fetus begins discernibly to move independently of the mother38 and the point that has historically been deemed crucial-to the extent any point between conception and birth has been focused on.39) But no, it is viability that is constitutionally critical: the Court's defense seems to mistake a definition for a syllogism.

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 capacity of meaningful life outside the mother's womb.40

With regard to why the state cannot consider this “important and legitimate interest” prior to viability, the opinion is even less satis

33. Nor is the Court's conclusion that early abortion does not present serious physical risk to the woman involved shared by all doctors. Cf. note 117 infra.

34. It defines viability so as not to exclude the possibility of artificial support, 93 S. Ct. at 730, and later indicates its awareness of the continuing development of artificial wombs. Id. at 731. It gives no sign of having considered the implications of that combination for the trimester program the Constitution is held to mandate, however.

35. Albeit not so compelling that a state is permitted to honor it at the expense of the mother's health. See note 19 supra.

36. Note 17 supra. 37. See 93 S. Ct. at 716. 38. ld. 39. Id. at 716-20. 40. Id. at 732. See also id. at 730: Physicians and their scientific colleagues have regarded (quickening] with less interest and have tended to focus either upon conception or upon live birth or upon the interim point at which the fetus becomes "viable,' The relevance of this observation is not explained. It is, moreover, of questionable validity:

This line is drawn beyond quickening, beyond the point where any religion has assumed that life begins, beyond the time when abortion is a simple procedure, and beyond the point when most physicians and nurses will feel the procedure is victimless. It is also beyond the point which would have satisfied many who, like myself,

were long term supporters of the right to abortion. Stone, supra note 22.

Roe v. Wade

factory. The discussion begins sensibly enough: The interest asserted is not necessarily tied to the question whether the fetus is "alive," for whether or not one calls it a living being, it is an entity with the potential for (and indeed the likelihood of) life.t1 But all of arguable relevance that follows2 are arguments that fetuses (a) are not recognized as "persons in the whole sense" by legal doctrine generally43 and (b) are not "persons” protected by the Fourteenth Amendment. 14

To the extent they are not entirely inconclusive, the bodies of doctrine to which the Court adverts respecting the protection of fetuses under general legal doctrine tend to undercut rather than support its conclusion. And the argument that fetuses (unlike, say, corporations) are not "persons" under the Fourteenth Amendment fares little better. The Court notes that most constitutional clauses using the word “persons”-such as the one outlining the qualifications for the Presidency-appear to have been drafted with postnatal beings in mind. (It might have added that most of them were plainly drafted with

41. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may as

sert interests beyond the protection of the pregnant woman alone. 93 S. Ct. at 725. See also id. at 730:

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 poini [sic] in the development of man's knowledge, is not in a position to speculate as to the answer.

The Texas statute, like those of many states, had declared fetuses to be living beings. See id. at 709 n.1, 710 n.3; cf. id. at 721, 723 n.40, 729 n.55.

42. The opinion does contain a lengthy survey of "historical attitudes" toward abor. tion, culminating in a discussion of the positions of the American Medical Association, the American Public Health Association, and the American Bar Association. Id. at 715-24. (The discussion's high point is probably reached where the Court explains away the Hippocratic Oath's prohibition of abortion on the grounds that Hippocrates was a Pythag. orean, and Pythagoreans were a minority. Id. at 715-16.) The Court does not seem en. tirely clear as to what this discussion has to do with the legal argument, id. at 709, 715, and the reader is left in much the same quandary. It surely does not seem to support the Court's position, unless a record of serious historical and contemporary dispute is somehow thought to generate a constitutional mandate.

43. Id. at 731. 44. Id. at 728-30. 45. [T]he traditional rule of tort law had denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the

whole sense. Id. at 731 (footnotes omitted). See also, e.g., W. PROSSER, HANDBOOK OF THE LAW OF TORTS 355 (3d ed. 1964).

The Yale Law Journal

Vol. 82: 920, 1973

adults in mind, but I suppose that wouldn't have helped.) In addition, "the appellee conceded on reargument that no case can be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment."'46 (The other legal contexts in which the question could have arisen are not enumerated.)

The canons of construction employed here are perhaps most intriguing when they are contrasted with those invoked to derive the constitutional right to an abortion.“7 But in any event, the argument that fetuses lack constitutional rights is simply irrelevant. For it has never been held or even asserted that the state interest needed to justify forcing a person to refrain from an activity, whether or not that activity is constitutionally protected, must implicate either the life or the constitutional rights of another person.48 Dogs are not “persons in the whole sense” nor have they constitutional rights, but that does not mean the state cannot prohibit killing them: It does not even mean the state cannot prohibit killing them in the exercise of the First Amendment right of political protest. Come to think of it, draft cards aren't persons either. 49

Thus even assuming the Court ought generally to get into the business of second-guessing legislative balances, it has picked a strange case with which to begin. Its purported evaluation of the balance that produced anti-abortion legislation simply does not meet the issue: That the life plans of the mother must, not simply may, prevail over the state's desire to protect the fetus simply does not follow from the judgment that the fetus is not a person. Beyond all that, however, the Court has no business getting into that business.

III

Were I a legislator I would vote for a statute very much like the one the Court ends up drafting. 5o I hope this reaction reflects more

46. Id. at 728-29 (footnote omitted). 47. See pp. 928-33 infra.

48. Indeed it is difficult to think of a single instance where the justification given for upholding a governmental limitation of a protected right has involved the constitutional rights of others. A "free press-fair trial” situation might provide the basis for such an order, but thus far the Court has refused to approve one. See Ely, Trial by Newspaper & Its Cures, ENCOUNTER, March 1967, at 80-92.

In the Court's defense it should be noted that it errs in the other direction as well, by suggesting that if a fetus were a person protected by the Fourteenth Amendment, it would necessarily follow that appellants would lose. 93 s. Ct. at 728. Yet in fact all that would thereby be established is that one right granted special protection by the Four. teenth Amendment was in conflict with what the Court felt was another; it would not tell us which must prevail.

49. See United States v. O'Brien, 391 U.S. 367, 376-77 (1968). And if you don't like that example, substitute post offices for draft cards.

50. I would, however, omit the serious restrictions the Court puts on state health regulation of the conditions under which an abortion can be performed, and give

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