July 2005

Abstract:
The Supreme Court went beyond its authority to legislate in an area where, admittedly, constitutional guidance was wanting.  Congress continues to fail to give such guidance.

In order to resolve this issue, the Court needed to answer several component questions:

1. Does a fetus have rights of a person under the Constitution or federal law, and if so, at what point in the development of the fetus do such rights commence?
2. Are any rights or obligations of a pregnant woman with respect to her fetus covered by the Constitution or federal law?
3. Does a father have any rights with respect to the fetus, which could restrict any rights of the mother?
4. Do any rights of the mother, father, or fetus come under the first clause of the 14th Amendment to the Constitution, which places limitations on a state's ability to restrict such rights?
5. If so, has the state of Texas, in adopting its legislation limiting abortion, restricted any constitutionally protected right of the plaintiff?
6. And if so, has the state of Texas, in adopting this legislation, satisfied the "due process" required by the 14th Amendment?  And, while we're at that, just what is this "due process" requirement?  Does it include "due substance"?

Status and rights of a fetus
Justice Blackmun, in his opinion for the majority, makes an historical survey of the question of when a fetus has been considered to become a living being, from ancient times to the present.  Predictably, he finds no consistency in such attitudes, though a common notion, historically reflected in both common law and English and earlier American statute law, has been that the fetus takes on human status when it is "viable", "animate", or "quick", that is, when it is observed to be living, as by movement in the womb.  Others, however (Stoics, the Jewish faith, some Protestant churches), have held the view that the fetus only becomes a human person upon birth.  Yet others, e.g., the Greek Pythagoreans, doctors following the Hippocratic oath, the present-day Roman Catholic Church, the then-current (1973) statutes of most American states (including Texas), as well as – though not mentioned in the Court's opinion – several Protestant denominations, human life with its full value and rights has been considered to begin at conception.

This question is, of course, of the greatest importance in determining the right of a pregnant woman to rid herself of her fetus.  It may be said to be the central question in the case, because when and if the fetus acquires rights and legal protection as a person, its rights  – such as a right to life –  may not be abridged without due process under the 14th Amendment.  If the fetus, on the other hand, is merely a body part, like an appendix, the owner can of course rid herself of it at will.

Justice Blackmun writes of the argument proffered by the state of Texas:

"Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception.  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 point in the development of man's knowledge, is not in a position to speculate as to the answer."

On this crucial question the Supreme Court's majority opinion is nearly silent, and heads directly, without discussing its reasoning, to the following conclusion:

"All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn."

"There apparently was no question concerning the validity of this provision [the Texas abortion statute] or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter. "

The majority opinion, in summary, discussed three different historical notions of when a fetus becomes a "person":  1.At conception,  2.At "quickening",  and 3.At birth.  Each of these notions has been and still is held by various groups of people.  The Court found that no medical or moral reason could be adduced to favor one of these notions over the others.  Nonetheless, it decided not only that a fetus becomes a person at birth (option 3), but also that the Constitution prohibits states from taking any different view of the matter.  One can search the record in vain to find evidence that supports this conclusion.

In the end, this case depended on the justices' assessment of public attitudes and practices, and the law they wrote in the process was new and detailed.  Although nothing in the Court's record of this case, neither in the plaintiff's complaint nor in the appellant's appeal, requested or supported rules for what a state may regulate at various times during a pregnancy, the majority opinion found that the Constitution does not permit a state to restrict abortion in the first trimester;  the Constitution permits states to regulate abortion to preserve the health of the mother during the second trimester;  and the Constitution further allows states to regulate abortion more restrictively, even prohibit it, during the last trimester of pregnancy.  All this even though the fetus is not considered a person with constitutional rights until the birth.  The majority opinion used the concept of "potential life", which evidently appears fairly suddenly at the end of six months of pregnancy, the protection of which may be used by states to justify restrictions on abortion during the last three months before birth.  The fetus appears here to gradually gain a right to constitutional protection, though this is not Justice Blackmun's reasoning.  His is rather that the state gradually gains grounds for regulation as the pregnancy progresses.  Again, as the dissenting opinion points out, no evidence supporting this idea is to be found in the record.

The Court, when discussing the mother's right to dispose of the fetus, neither asks nor answers the question of whether a father has any rights in connection with the fetus.  By deciding that the decision to abort is the mother's alone, the Court also decides by default that no-one else, e.g., a father, has any competing rights in the unborn child.  It decides this, but offers no argument as to why, or where in the Constitution this decision is based.  It is supposed that the father's rights in the child are invested at birth;  or is it perhaps during the third trimester, when the Court will allow that the state may have an interest in the child?  We don't know;  the majority justices presumably knew why they decided against any paternal rights in the child, but they didn't tell us.

This brief note is long enough, and we won't deal here with the several other questions that arise out of this tortured decision, such as the Court's determination that a state, in order to show that a rule is in compliance with the 14th Amendment's "due process" provision, must show that not only the process, but also the substance of the rule is "due", which is undefined but would mean that it pleases the justices.  This notion, which had been in operation earlier in the Court's history, but which was thought dead by the 1960s (see Justice Stewart's assenting opinion), places additional layers of extra-constitutional requirements on the states in their law- and rule-making.  The majority opinion made no effort to justify this reawakening of a buried doctrine.

And out of the Court's discussion of  "due substance"  (it actually uses the oxymoronic term "substantive due process") comes what is perhaps the most egregious example of inconsistency and irrationality in this decision.  The court has evaluated the Texas abortion law, and has laid down the rule that the state must demonstrate a "compelling interest" in order to restrict a citizen's liberties as Texas had done.  Finding that Texas failed to meet this test, the Court invalidates the Texas law.  But now something odd happens in the majority opinion.  The Court proceeds to specify what may be regulated by a state at each phase of pregnancy, regardless of any showing of "compelling interest" by the state.  The Court ignores its own prescribed test, and now proclaims that no state could possibly succeed in showing a "compelling interest" in regulating abortion beyond the terms laid out by Justice Blackmun.  (Ironically, the restrictions written by the Court in its model law for states would in no way meet its own "compelling interest" test, as the Court nowhere provides a rationale for these restrictions.)  Although we read at the beginning of the opinion that a state abortion law could stand if the state can show a "compelling interest" in its regulation, the states are told at the end not to bother.  The justices have thought of all possible reasons for regulating abortion, and claims of  "compelling interest" will no longer compel the interest of the Supreme Court.  This show of arrogance appears to be the Court's way of saying that they don't care to hear any more state abortion law cases.

In fine, if the role of the Supreme Court is to assess society's attitudes and to adapt its interpretation of the Constitution to those (but to which of the many conflicting contemporary attitudes – the majority, or as in Roe, a minority attitude?), we might do better to hire as justices not legal scholars with no special skills at evaluating social trends, but pollsters or politicians, whose daily bread depends on their ability to read the public.  But wait, we do hire those and place them in Congress.  And that's where legislation to suit the public's needs of the moment, with its tricky balancing of interests, belongs.  Supreme Court Justices who attempt this balancing act come off, as in Roe v. Wade, looking more like Court Jesters.