Monday, April 17, 2006


"Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.

The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest." Justice Sandra Day O'Connor,
Planned Parenthood v. Casey (1992).


This essay serves as a preface to The Scarlet Letter, a multi-part series of articles on abortion that will appear in the coming days and weeks on this Web site. The purpose of this modest introduction is to frame the context of the debate and to make sense of all that has happened legislatively and judicially since Roe v. Wade, the Supreme Court's landmark decision extending constitutional protection to abortion. I have attempted to be as concise as possible without omitting critical details that are necessary for an adequate understanding of the subject.

I. Roe v. Wade (1973)

Texas enacted a statute criminalizing abortion in 1854, revised it in 1857, and as of 1970 it remained on the books substantially unchanged since that first revision. The law made it a crime to "procure an abortion" unless the woman seeking the abortion literally was going to die without one. Article 1196 of the statute read: "Nothing in this chapter applies to an abortion procured . . . for the purpose of saving the life of the mother." This came to be known as the "life exception."

The Texas law provided for imprisonment of "not less than two nor more than five years" for anyone who performed an abortion, but no punishment was provided for a woman undergoing the procedure.

Norma McCorvey (under the pseudonym Jane Roe), a single pregnant woman living in Texas, sued her county district attorney (Henry Wade) in 1970 over the state's abortion laws. She alleged in her complaint that she desired to terminate her pregnancy "under safe, clinical conditions," and that she was unable to get an abortion in Texas because her life did not depend on it. She also alleged that she could not afford to travel to another state that allowed abortions. At the time of the lawsuit, 26 other states had laws criminalizing abortion.

It is worth noting that restrictive abortion laws are of relatively recent history. The legislation in many of the states criminalizing abortion in effect in 1970 was not enacted until the second half of the 19th century. This marked a dramatic shift from English common law, which allowed abortion prior to the first movement of the fetus in utero (usually the 16th to 18th week of pregnancy). Early American law followed common law until approximately the middle of the 19th century.

Part V of the Supreme Court's opinion in Roe summarizes the issue in the case: "The principal thrust of [Roe's] attack on the Texas statutes is that they improperly invade a right, said to be possessed by pregnant women, to choose to terminate her pregnancy."

After setting out a limited history of abortion, the Court turned to the question of whether the Texas abortion law improperly invaded a constitutional privacy right afforded to women under the Due Process Clause contained in the Fourteenth Amendment. The Court determined that the Due Process Clause did in fact protect a woman's decision to terminate her pregnancy, but not without limitation.

The Due Process Clause declares that no state shall "deprive any person of life, liberty, or property, without due process of law." According to Supreme Court decisions dating as far back as 1891, the "liberty" component extends beyond the enumerated freedoms of speech, press, and religion, the right to bear arms, and the right to be free of unreasonable searches and seizures.

Rather, "[t]he full scope of the liberty guaranteed by the Due Process Clause . . . is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement."

In other words, the Supreme Court has construed the Constitution - by mechanism of the Due Process Clause - to provide a penumbra of liberty rights, and therefore privacy rights, from which necessarily emanate attendant zones of privacy that must be free from government intrusion except when the State can demonstrate a truly compelling justification for limiting these rights.

Laws that encroach upon fundamental liberties are closely scrutinized by courts to ensure that the State's interest is sufficiently compelling to justify abridgement of the liberty rights, and that the laws are carefully tailored so as not encroach upon these rights more than necessary to acheive the State's asserted interest.

Prior to deciding Roe v. Wade, the Supreme Court found constitutional protection under the Due Process Clause for certain privacy concerns relating to marriage, procreation, and contraception, including:
  • a married couple's right to use contraceptives (Griswold v. Connecticut (1965))
  • the right to marry another person of a different race (Loving v. Virginia (1967))
  • an unmarried person's right to obtain and use contraceptives (Eisenstadt v. Baird (1972))
In Eisenstadt, William Baird, who was lecturing at Boston University, was charged with a felony after giving a student vaginal foam in violation of a Massachusetts law that only allowed married couples to obtain contraceptives. The law also provided that contraceptives could only be distributed by a licensed pharmacist.

Holding the Massachusetts law to be unconstitutional, the Supreme Court declared: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

Relying on the privacy rights established in Griswold, Eisenstadt, and Loving, the Supreme Court in Roe held that "[t]he right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

The Court noted, however, that this right of privacy is not absolute and must be considered against important State interests, such as protecting the mother's health, maintaining medical standards, and protecting potential life. The Court believed it was "reasonable and appropriate for a State to decide that at some point in time another interest, that of the health of the mother or that of potential human life, becomes significantly involved. The woman's right of privacy is no longer sole and any right of privacy she possesses must be measured accordingly." The critical "point in time" was fetal viability, the point at which the fetus could survive outside the uterus.

Stated another way, the Court's decision in Roe established a constitutional right to terminate a pregnancy (or not), but set limitations on that right, such that it was constitutionally permissible for the State to regulate or even proscribe abortion subsequent to fetal viability provided the State allowed an exception for abortions necessary to preserve the life or the health of the mother.

Roe also set up a trimester framework, such that different rules applied to each trimester of pregnancy, but a subsequent case, Planned Parenthood v. Casey, eliminated the trimester system while also re-establishing the fundmental right to abortion established in Roe.

II. Planned Parenthood v. Casey (1992)

"Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, that definition of liberty is still questioned." Justice Sandra Day O'Connor, Planned Parenthood v. Casey (1992).

At issue in Casey were certain provisions of the Pennsylvania Abortion Control Act of 1982. The Act required a woman seeking an abortion to give her "informed consent" prior to the procedure and mandated a 24-hour waiting period before the abortion could be performed. The law also required a married woman seeking an abortion to sign a statement indicating she had notified her husband that she was going to have an abortion. A plurality of justices of the Supreme Court took the opportunity to reaffirm the central holding of Roe v. Wade.

(Editor's note: The Supreme Court decisions in Roe and Casey were not, of course, unanimous. Indeed, the Court's numerous concurring and dissenting opinions in Casey indicate that the members of the Court were able to agree on very little. Nonetheless, a sufficient number of justices concurred that the basic holding of Roe v. Wade should be upheld. A future post will describe in more detail the critical importance of the Court's division on such issues and how this division is likely to play out as today's abortion cases reach the newly constituted Supreme Court.)

Unlike the Court in Roe, the authors of the plurality opinion in Casey did a remarkable job articulating a legal and logical basis for the extension of constitutional protection to a woman seeking an abortion.

Here are a few of the notable passages:
  • "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment."

  • "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."

  • "The mother who carries a child to full term is subject to anxieties, to physical restraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture."

  • "[T]he inability to provide for the nurture and care of the infant is a cruelty to the child and an aguish to the parent."

  • "The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."

  • "Compelled continuation of a pregnancy infringes upon a woman's right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm. During pregnancy, women experience dramatic physical changes and a wide range of health consequences. Labor and delivery pose additional health risks and physical demands. In short, restrictive abortion laws force women to endure physical invasions far more substantial than those this Court has held to violate the constitutional principle of bodily integrity in other contexts."

  • "By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course."

  • "Because motherhood has a dramatic impact on a woman's educational prospects, employment opportunities, and self-determination, restrictive abortion laws deprive her of basic control over her life."

  • "Serious questions arise . . . when a State attempts to persuade the woman to choose childbirth over abortion. Decisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own views of what is best. The State may promote its preferences by funding childbirth, by creating and maintaining alternatives to abortion, and by espousing the virtues of family; but it must respect the individual's freedom to make such judgments."
Attempting to balance the competing interests at stake, the Court reaffirmed Roe and held that prior to viability, a woman has the right to choose to terminate her pregnancy. Rejecting the trimester framework from Roe, and recognizing the State's interest in the mother's health and the potential life of the fetus, the Court articulated the following standard: "Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of liberty protected by the Due Process Clause."

The undue-burden standard was, according to the Court, "shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

The Court also held that the State may, to further its interest in potential life, pass laws to ensure that the woman's choice is "fully informed," and that the State may require abortion providers to give "truthful, nonmisleading information" about abortion to a woman seeking to terminate her pregnancy "even when in so doing the State expresses a preference for childbirth over abortion."

The Court employed the "undue burden" standard and the "fully informed" guidelines to assess the constitutionality of the Pennsylvania laws under consideration. The Court found the 24-hour pre-abortion waiting period mandated by Pennsylvania law not to constitute a "substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus," stating "[t]he idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable . . . ."

Thereafter, the Court determined that the spousal-notification provision did constitute a "substantial obstacle" due in large part to the Court's belief that this provision could frequently result in physical or psychological abuse against the woman or her children, thereby creating an undue burden for some women.

Sensibly, the Court stated: "In well-functioning marriages, spouses discuss important decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decisions to obtain an abortion."

Casey was the Supreme Court's last word on whether there exists a basic constitutional right to abortion, although there have been other cases addressing rights tangential to abortion rights that have reached the Court and the numerous federal courts, such as the cases involving "partial-birth abortion." Although the fundamental right to terminate one's pregnancy remains, the trend among many states and the federal government has been to chip away at this right by enacting laws that arguably do not constitute an "undue burden" on a woman seeking an abortion, but nonetheless create an increasingly unfavorable environment for doing so.

III. Additional Thoughts

What I have attempted to summarize herein - the central holdings of Roe and Casey - amount to gross simplifications that fail to truly capture the greatest part of the Court's analysis and the constitutional intricacies of each case. As a printed document on 8.5" x 11" paper, Roe is 29 pages in length, while Casey spans 79 pages. Each case references numerous prior cases of precedential value, each containing many relevant points of law, all of which must be read before an adequate understanding of the constitutional issues emerge in their full complexity.

Furthermore, the arguments set forth by the justices both for and against the extension of constitutional protection to abortion are, for the most part, thoughtful and intelligent, such that only multiple careful readings of these cases, along with a detailed understanding of constitutional law, will illuminate the arguments' full depth and meaning. One could no more read through these cases only once and truly grasp the profound messages and considerations therein than one could listen to a Chopin nocturne or ballade a single time and comprehend the depth of the musical fabric one has heard.

Additionally, it should be apparent to anyone who takes the time to read these opinions that each of the justices who contributed their thoughts to this great debate did so with no small amount of trepidation and anguish over having to decide such a fundamental question of life and liberty. Such is not an enviable task, and the justices took great care in writing these opinions.

If nothing else is certain, it is undeniable that the abortion question with respect to the application of the laws of this country and the states it comprises is profoundly complex and lies at the very core of the way we view and define ourselves and our understanding of life. Contrary arguments suggesting the issue is capable of a simple, black-and-white resolution are fallacious.

Those who claim that abortion is wrong in every instance are plainly foolish, for there are certainly instances in which not even the mother wishes to terminate her pregnancy, but an abortion is a medical necessity to save her life. And those who claim that abortion is murder face a logical dilemma when they make exceptions for abortions that are the product of rape or incest, because they suggest that there are certain considerations that can prevail over the sanctity of life.

Likewise, anyone who claims that a woman's right to terminate her pregnancy should be inviolable at any stage of the pregnancy also wrongly apprehend the value of a potential human life, something that undeniably has worth and should, in our marginally civilized society, be accorded some level of respect, as should all life, whether human or not.

Indeed, it seems inescapable that, in the absence of clear absolutes, a balancing must take place that necessarily sacrifices definite and immutable moral ideals for more practical ones. Such is the complexity of life.

However, this does not mean that all approaches to this problem are of equal merit. On the contrary, as in any dispute, arguments supported by logic and pragmatism should be rewarded and favored, whereas arguments based merely on vaguely defined moral imperatives that result in untenable inconsistencies should be disfavored. Yet, make no mistake: I am not advocating a complete abandonment of morality in favor of pure logic, although life would surely be more tolerable if that were the case. I merely recognize that, while morality is perhaps often articulated in aggregate (such as the tenet of a major religion, for example), it is entirely personal and need not be based upon historical religious texts to be valid, provide meaning to its holder, and improve society through its implementation.

It is on this basis that I intend to address the various issues, arguments, and controversies surrounding this terribly divisive issue - abortion - for the purpose of seeing into the heart of the logical and moral constructs that support the arguments, such that each, whether fallacious or sound, can be seen for what they truly are.


Anonymous said...

As always, I had to look up a couple words, but post is excellent. Good intro to the due process clause. Where were you when I was stuyding for the bar exam?!

Two thoughts: obviously the scope of this issue goes way beyond what the supreme court in the US has had to say about it - it is a global issue. I trust you are going to get there eventually.

Also, what I am most interested in is why so many states contniue to have abortion laws when women's rights groups say that a majority of US thinks abortion should be available. This obviously doesn't make much sense. How is there such a disconnect between how the majority population sees this issue and the laws of each state?

I'll take my answer off the air.

Anonymous said...

Perplexed asks a good question. Why the disconnect? My guess? Apathy. I think a lot of women, while they would call themselves "pro-choice," don't care enough about reproductive rights to do anything about it. The anti-choice movement is extremely organized and motivated. I just hope it doesn't take the overturning of Roe for women to get their heads out of their asses...

Anonymous said...

Why is it that the people trying to take away other people's rights always seem so much more organized and motivated than the people whose rights are being taken away? We all sit back and do nothing until we are in danger of losing everything.

Why is it that some people feel compelled to dictate their morals to everyone else? If a substantial percentage of people in this country believe that the right to terminate a pregnancy should be protected, what does that say about the others who want to extinguish the right?

Anonymous said...

Reading the brief excerpts from Sandra Day O'Conner's opinions in your post made me sad all over again that she has left the court.

The reason that states continue to limit access to abortion while the majority of Americans actually support a woman's right to choose is simple -- the marriage of the religious right and fiscal conservatives. Religious fundamentalists are an integral part of the Republican base in this country. They are incredibly organized and powerful and are able to influence voters and raise money quickly. Even more moderate Republican lawmakers who might privately support broader rights for women must rely on their conservative base to remain in office. And many fiscal conservatives who support women's reproductive freedom vote for Republicans (pro-life and otherwise) because they value money more than women's rights. No one really wants Roe vs. Wade to be overturned -- not mainstream Americans, who actually believe in self-determination for women, and not the religious right. How else could they continue to have so much political influence? Without the specter of dead babies, the rabid (oops, I meant religious) right will have more difficulty motivating people in churches around the country to vote and send money.

Anonymous said...

The blog was so long that by the time I got to the end of it, I had forgotten the beginning of it. Please try to remember that we're all at work trying to read these ghastly things.

Here is what is really interesting - there are lots and lots of women out there who for one reason or another feel compelled to say that they are in the right to life camp but who would have an abortion if they believed it was in their best interests. That, I believe, is the problem. Society has set up this issue so that to support the right to abortion almost makes one a pariah - even among other women who know the reality of it all. That is truly what I find interesting. You can have an abortion but still be against it.

Anonymous said...
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Anonymous said...

Your Blog is very logical and beautifully written. It effectively presents the dilemma faced by women and the courts. I am emotionally and morally opposed to abortion. However, if I were on a court required to decide the issue, I would probably uphold the decisions found in Roe v Wade and the Casey case. I know there are women who have a profound need not to have the child they have growing in their bodies. But I also know that there are parents out there who "pretend" their children are not going to engage in sex prior to spite of the fact that most of them did. This fantasy on their part needs to be clearly and effectively addressed. Their children need to have access to birth control without fear of disclosure to the parents and without cost. There are also women and men who have children without the desire to support them. Fortunately, there are more laws in place today then in the past that require men to support children they have fathered but not enough and they are certainly not sufficiently punitive to have a positive impact on the problem. Women who have children they can not support should be ostracized not funded.

In short, my position is two fold: one, abortion is a matter between the woman and God; two, the focus has been all along on the problem not the solution. If all parties in interest had spent as much time and energy on the solution as they have on the problem, the problem would be much reduced. But, that just is my opinion, I could be right.

H. Philip Aster said...

To anonymous: I agree with you that more time and energy should be spent trying to reduce the number of abortions by prevention (i.e., by increasing the availability of birth control and sex education). I believe that if the real first priority of the pro-life movement were protecting human fetal life, they would more often see the wisdom of prevention. Apparently the moral-turpitude component of sex, along with a desire to punish sinners who cannot control their base and lascivious desire to perform the ol' in-out in-out, overrides the desire to prevent abortion in many right-to-life groups. If everyone could have sex without worrying about pregnancy, it would greatly reduce the moral leverage of the church, wouldn't it?

Confusingly, though, you state: "Women who have children they can not support should be ostracized not funded." I'd like a clarification on this. This seems inconsistent with your otherwise mostly sensible comments.

I'd also like a little clarification on your "between the woman and God" comment. Does that mean that if God is cool with it, it is ok? Or does that mean if the woman's belief system allows her to have an abortion, then it is acceptable? Or are you implying that women who have abortions are going to be punished in the afterlife? You might be right, but you're going to have to explain yourself first. :-)

Anonymous said...

Women who have children they can not support go to DSS and get a check sent to them every month. When they have more, they get a larger check. Why is this? Answer: To do otherwise would be harmful to innocent children. No one wants to do that. What I am proposing, though, is that women who have a child they can not support be given one pass combined with an agreement to take "free" birth control pills. The father gets one free pass. Conceiving a second child is a misdemeanor---against both. They get to go to court and explain to a judge why they are behaving so recklessly with their childrens' lives and so recklessly with other people's money. When the legal system takes the fun out of having children you can not support, there will be fewer of them. Parents who do not provide their children with adequate information and birth control access or permit it to be done in the schools should have the same responsibility to support the resulting child as the mother and the father. Their religion be dammed. Too many children have had their lives ruined or grossly impaired by having unprotected sex producing children they were not prepared for. There should be a penalty attached to religious stupidity that results in damage to innocent persons. And, being so dumb as to think that young people are not going to have sex should carry a price.

Abortion is a moral and/or religious issue. Judges, in opinions as summarized by you, have established the legal parameters. The decisions made were based on legal theory... legal thinking...a weighing of privacy rights and the right of the State to punish certain behaviors. Just because jurists have established legal rights, it does not mean that they have made it all right in the eyes of God. A woman who has an abortion can satisfy legal requirements. Has she committed a sin? That is not up to me; I can only answer for my behavior. I have no duty to determine whether she has committed a sin. That is for God to decide. If her belief system permits her to believe she has done nothing wrong, is she right? Does she determine that or does God? If there is a God, he will decide. If there isn't, each woman has to decide whether what they are doing is the right thing to do to a fetus...a potential human being. I believe there are very good reasons for a woman to abort a woman should feel compelled legally or morally to bear a child conceived through woman's life should be sacrificed or endangered in order to bear a child...and I am sure there are other good examples...but I think you get my point.

H. Philip Aster said...

To anonymous: Isn't it punishment enough to have a child one can't support? You say: "When the legal system takes the fun out of having children you can not support ..." This rests on a false assumption, viz., that having children is ever fun under any circumstances.

I trust you're joking about charging those who make unwise pregnancy decisions with a misdemeanor. Apart from being entirely impractical and unconstitutional in the extreme, it would be damn difficult to develop criteria for this scheme.

Do women who have children they cannot support really get a check from DSS every month? I know that certain government programs that allow a parent in that position to get free peanut butter, cheese, milk, and cereal, but that is hardly enough to provide any sort of meaningful support for the child. You seem to imply that having more children is a profitable enterprise. Surely this is not the case.

Anonymous said...

This comment "Conceiving a second child is a misdemeanor---against both." made me audibly gasp when I read it. It's vaguely reminiscent of the Third Reich's forced sterilization of Jews. Did I just drop the H[itler]-Bomb into the conversation? Oh, snap.

But really, fining someone for being poor or uneducated seems harsh(?), unethical(?), inhumane(?). I was really just checking on the status of "The Scarlet Letter" (which I anxiously await) but thought I'd stir the pot a bit. ;-)


Anonymous said...

Yeah, this is worse than watching molasses dry, which doesn't make sense because I'm a dog. Ruff.