The Viability of Roe, Part 4: The Misinterpretation of Legal Personhood

Another aspect important to an historical analysis of abortion is that there was widespread disapproval and prohibition of abortion during early pregnancy before, in the view of the science of the time, human life had been infused. Our ancestors’ biologically incorrect notions of when human life begins led Blackmun to assert that, historically, “abortion was viewed with less disfavor than under most American statutes currently in effect” (in January, 1973) and “[p]hrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does … today.”[1]

Regarding this important question, scholarly research reveals that recognition of the unborn as “persons in the whole sense” was largely determined by the biological and medical knowledge of each historical era[2]. The ovum and the actual nature of fertilization were not discovered until the nineteenth century, and prior to this, scientists and contemporaneous jurists supposed that human life commenced at “formation,” “animation,” or “quickening.” Abortion was seen as unquestionably homicidal only after the gestational point at which, in light of the science of the time, human life was finally understood to be present. [3]

Many legal scholars have pointed out that other areas of law, such as torts property and criminal law, all recognize the unborn child as a person with legal protections under the law.

[M]edical authority has recognized long sense that the child is in existence from the moment of conception, and for many purposes. It existence is recognized by the law. The criminal law regards it as a separate entity, and the law of property considers it in being for all purposes which are to its benefit, such as taking by will or dissent… All writers who discuss the problem have joined in condemning the old rule, and maintaining that the unborn child out of an automobile is as much a person in the street as the mother. [4]

In reference to property law, in 1941, a New York Court stated: “it has been the uniform and unvarying decision of all common law courts in respect of the state matters for at least the past two hundred years that a child en ventre sa mère (in its mother’s womb) is ‘born’ and ‘alive’ for all purposes for his benefit.”[5]

The rules of property law have not changed, and pre-born children are still afforded their just legal protections. If property law recognizes the rights of a child in its mother’s womb, it makes no sense that the court would deny them, especially since property was not the only area of law in which those rights were recognized.

By 1971, twenty-nine states and the District of Columbia allowed suits for prenatal injuries based on tort law, and an additional nine rejected the viability distinction and allowing recovery[6]. In 1953, a New York State appellate court found that:

We ought to be safe in this respect. In saying that legal separability should begin where there is biological separability. We know something more of the actual process of conception and foetal development now than when some of the common-law cases were decided; and what we know makes it possible to demonstrate clearly that separability begins at conception.[7]

This rationale was also stated by the Pennsylvania Supreme Court in 1960:

As for the notion that the child must have been viable when the injuries were received, which is claimed the attention of several of the states, we regard it as having little to do with the basic right to recover, when the foetus is regarded as having existence as a separate creature from the moment of conception.[8]

Today, only three states do not provide tort claims for prenatal injuries, nearly 3 thirty states allow for recovery at any point in the pregnancy[9]. This is yet another example of the schizophrenic nature of the Supreme Court denying pre-born children recognition under the law, when the law of torts clearly recognized their rights.

In criminal law, the quickening distinction was dropped my most a legislatures by the 1860s as medical science progressed, and today thirty-eight states have abolished the born alive rule in the lower prosecution for fetal homicide at any time in the pregnancy.[10]him him

Justice Blackmun, writing for the court in Roe, stated that the court did not need to decide the “difficult” question of when life begins, but this is the most important question to be decided. Because it is not the courts job to decide what philosophy or religion is correct, it must be scientific fact which dictates who is covered by the Constitution.  There is no doubt that human life begins at conception (also called fertilization), and even the most cursory glance into the science of fetal development would confirm this fact.[11] The court gave no rationalization for why a human and a person were separate entities, that required separate legal protections under the law, and many have criticized this distinction as similar to the one the Court made in Dred v Scott.[12]


[1] Roe

[2] Roger Resler, Compelling Interest, page 19 – 30

[3] Compelling Interest, page 26

[4] Prof. William Prosser Law of Torts at 335.

[5] In re Holtenhausen’s Will, 175 Misc. 1022, 26 N.Y.S.2d  140 (NY Surr. Ct. 1941).

[6] Abuse of Discretion , page 275

[7] Kelly v. Gregory, 282 App.Div. 542, 125 NYS.2d 696, 697 (1953).

[8]Sinkler v Kneale, 401 Pa. 267, 164 A.2d 93, 96 (1960)

[9] Abuse  of Discretion, page 283 figure 7.

[10] Abuse of Discretion, page 284-5  figure 9.

[11] See e.g.  http://www.princeton.edu/~prolife/articles/embryoquotes2.html (a compilation of quotes from recognized medical textbooks and authorities,  on when human life begins)

[12] See e.g Compelling Interest, page 20;  Justice Scalia’s dissent in Planned Parenthood v. Casey at 998

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The Viability of Roe, Part 2: From Roe to Carhart

PartialBirth_Method

While Roe did not expressly declare abortion to be a “fundamental right,” in the wake of the decision many lower federal courts certainly interpreted abortion as such.[1] Indeed, many of the abortion cases that the Court heard between Roe and Planned Parenthood v. Casey dealt with overturning this presumption by the lower courts. A brief overview of some of the major pre-Casey abortion cases will be beneficial in illustrating how the Court got from Roe to Casey:

  • Connecticut v. Menillo (1975) – In a per curium decision, the Court upheld Connecticut’s criminal prohibition against non-physicians performing abortions, stating that “Roe did not go that far.”[2]
  • Planned Parenthood v. Danforth (1976) – The Court upheld part of a state statute requiring a woman to give written consent prior to undergoing an abortion, but struck down spousal and parental consent requirements.[3]
  • Bellotti v. Baird (1976) – The Court this time upheld the requirement that a minor seeking an abortion must obtain parental consent, provided that there is the option for a “judicial bypass” whereby the minor can obtain consent from a judge if necessary.[4]
  • Harris v. McRae (1980) – The Court upheld the Hyde Amendment, which forbade federal funding of abortions. The Court reasoned in this case that abortion was not a fundamental right.[5]
  • City of Akron v Akron Center for Reproductive Health, Inc. (1983) – The Court struck down a 24 hour waiting period between the time a woman seeking an abortion received counseling, and when she could undergo the abortion procedure.[6]
  • Thornburg v. American College of Obstetricians and Gynecologists (1986) – The Court struck down a number of state regulations, including informed consent requirements, reporting requirements for abortion clinics, and regulations on the medical aspects of the abortion procedure.[7] Though the majority referred to “a woman’s right to make that choice [abortion] freely [as] fundamental,” they did not apply strict scrutiny in their rationale.[8]
  • Rust v. Sullivan (1991) – The Court upheld federal finding regulations that restricted federal funding from be awarded to family planning clinics that counseled for, or performed abortions. The Court relied on Harris in its decision.[9]

As demonstrated by these sometimes contradictory rulings, the Court seemed unsure of how to apply its own rule from Roe. For example, while Thornburg called abortion a “fundamental right,” the Court chose not to apply a strict scrutiny standard of review in the case.[10] Likewise in Bellotti and Harris, the Court referred only to an “undue burden” or “unduly burdensome” analysis.[11]

A. Planned Parenthood v. Casey

The confusion over abortion law, as seen in the decisions listed above, intensified the national debate over the issue. In 1992, many believed that the Court was poised to overturn Roe, but instead, in Planned Parenthood v. Casey the Court decided to take a much narrower approach to redefining abortion jurisprudence.[12]

In taking a narrow approach, the three judge plurality purported to rely on the concept of stare decisis to reaffirm the central holding of Roe of “the right of the woman to choose to have an abortion before viability.”[13] In defense of this affirmation the plurality claimed Roe had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”[14] Furthering this argument, the plurality argued that overturning Roe would “seriously weaken the Court‘s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.”[15] The plurality also relied on their belief that:

[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.  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.[16]

 

In response to these claims, Justice Scalia and Chief Justice Rehnquist pulled no punches in their respective dissents. Answering the plurality’s argument that overturning Roe would weaken the Court, Justice Scalia had the following to say:

In my history book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford, an erroneous (and widely opposed) opinion that it did not abandon, rather than by West Coast Hotel Co. v. Parrish, which produced the famous “switch in time” from the Court’s erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal.[17]

 

 

Likewise, Chief Justice Rehnquist’s dissent responded to the plurality’s claim regarding women’s social and economic equality with similar skepticism:

The joint opinion’s assertion of this fact is undeveloped and totally conclusory. In fact, one cannot be sure to what economic and social developments the opinion is referring.  Surely it is dubious to suggest that women have reached their ‘places in society’ in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men… The “separate but equal” doctrine lasted 58 years after Plessy, and Lochner’s protection of contractual freedom lasted 32 years. However, the simple fact that a generation or more had grown used to these major decisions did not prevent the Court from correcting its errors in those cases, nor should it prevent us from correctly interpreting the Constitution here.[18]

 

Despite these harsh criticisms from their fellow justices, the plurality still chose to interpret stare decisis in a way that prevented them from overturning Roe. However, while the plurality claimed to be reaffirming the central holding of Roe they made significant changes to the Court’s existing abortion doctrine.

One of the biggest changes Casey made was expressly abandoning abortion as a fundamental privacy right, and the accompanying strict scrutiny standard of review. This shift from privacy to liberty is evidenced in what is sometimes mockingly referred to as Casey’s “Mystery of Life Passage”: “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.”[19]

In place of the previous standard, the plurality described abortion as a “protected liberty interest” that was measured according to an intermediate level standard of review called “undue burden.”[20] The plurality defined “undue burden” as a regulation that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus.”[21]

But what exactly is “undue”? Under this standard, the Casey Court upheld informed consent, a 24 hour waiting period, reporting requirements for abortion facilities, parental consent (with judicial bypass), and a definition of “medical emergency” related to abortion; the only Casey requirement struck down was spousal consent.[22] But it is only contextually through cases that we can truly determine which burdens the Court believes are “undue’, as the guideline is difficult to interpret in a vacuum.

Justice Scalia has long been a critic of the “undue burden” standard, arguing that it places the Court in the inappropriate position of making legislative decisions regarding abortion legislation that are not guided by the Constitution, but rather are guided by the personal opinions and feelings of the individual Justices.[23]

Another major change the plurality made to Roe was to abandon the trimester framework set down in Roe, and focus solely on viability as the “compelling point.” In their reasoning, the plurality claimed that “there is no line other than viability which is more workable” as a compelling point for state’s interest to take hold.[24] The plurality also justified viability by arguing that there is an “element of fairness” in choosing it, because “in some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.”[25] At this time the Court also recognized that medical technology had advanced to the point that viability was now generally accepted to be at approximately 21 weeks post-fertilization.[26] Finally, the plurality says that “the trimester framework… [did] not fulfill Roe’s own promise that the State has an interest in protecting fetal life or potential life.[27] Justice Kennedy, writing for the plurality, spends a considerable amount of time and space explaining the importance of the State’s “profound interest in potential human life.”[28] This is an argument Justice Kennedy would continue to defend eloquently in abortion subsequent cases.

In the opinion of the dissenters, Chief Justice Rehnquist, Justice White, Justice Scalia, and Justice Thomas, the state’s interest in protecting fetal life is profound enough to require that Roe be overturned in its entirety, so that states were free to ban abortion as they saw fit.[29]

B. Stenberg v. Carhart

The next major legal challenge to abortion came in 2000, when late term abortionist Leroy Carhart challenged Nebraska’s Partial-Birth Abortion Ban in Stenberg v. Carhart.[30] Nebraska’s ban sought to outlaw a specific method of abortion, which is described in gruesome detail in Justice Kennedy’s dissent:

[T]he abortionist initiates the woman’s natural delivery process by causing the cervix of the woman to be dilated, sometimes over a sequence of days. The fetus’ arms and legs are delivered outside the uterus while the fetus is alive; witnesses to the procedure report seeing the body of the fetus moving outside the woman’s body. At this point, the abortion procedure has the appearance of a live birth. As stated by one group of physicians, “as the physician manually performs breech extraction of the body of a live fetus, excepting the head, she continues in the apparent role of an obstetrician delivering a child.” With only the head of the fetus remaining in utero, the abortionist tears open the skull. According to Dr. Martin Haskell, a leading proponent of the procedure, the appropriate instrument to be used at this stage of the abortion is a pair of scissors. Witnesses report observing the portion of the fetus outside the woman, react to the skull penetration. The abortionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull. The process of making the size of the fetus’ head smaller is given the clinically neutral term “reduction procedure.” Brain death does not occur until after the skull invasion, and, according to Dr. Carhart, the heart of the fetus may continue to beat for minutes after the contents of the skull are vacuumed out. The abortionist next completes the delivery of a dead fetus, intact except for the damage to the head and the missing contents of the skull.[31]

 

Despite these grisly facts, the Court voted 5-4 that Nebraska’s Partial-Birth Abortion Ban was unconstitutionally vague because it did not adequately differentiate Partial-Birth Abortion from method, as well as finding that it violated the “undue burden” standard because it lacked a Roe style health exception.[32]

As the author of Casey, which he thought to be a grand compromise that would end the abortion debate once and for all, Justice Kennedy was furious and this can be seen in his scathing dissent. Justice Kennedy claims the majority in Stenberg has “a basic misunderstanding of Casey,”[33] and “contradict[ed] Casey’s premise that States have a vital constitutional position in the abortion debate.”[34] Additionally, Justice Kennedy accused the majority of “fail[ing] to acknowledge substantial authority allowing the State to take sides in a medical debate, even when fundamental liberty interests are at stake.”[35] To bolster this claim, Justice Kennedy cites the Court’s prior decision in Kansas v. Hendricks, where a man was convicted for refusing to receive the small pox vaccine.[36] In Hendricks, the Court ruled that disagreements among medical professionals “do not tie the State’s hands in setting the bounds of…laws. In fact, it is precisely where such a disagreement exists that the legislatures have been afforded the greatest latitude.”[37]

Justice Kennedy went on to argue that the Court was ignoring “substantial medical and ethical opinion[s]”[38] regarding this procedure, “which, in the State’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus.”[39]

Justice Scalia also wrote a scathing dissent in Stenberg, in which he expressed his hope that “one day, Stenberg will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott.”[40]

C. Gonzales v. Carhart

Fortunately for Justice Scalia, he did not have to wait very long. In response to Stenberg, Congress held fact finding hearings on Partial-Birth Abortion, and eventually passed the Partial-Birth Abortion Ban of 2003.[41] The factual findings Congress used to support this Act included, among others, that:

  • A moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion…is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.
  • [Partial-Birth Abortion is] unnecessary to preserve the health of the mother, [and] in fact poses serious risks to the long-term health of women and in some circumstances, their lives.
  • A prominent medical association has concluded that partial-birth abortion is ‘not an accepted medical practice’…The association has further noted that partial-birth abortion is broadly disfavored by both medical experts and the public, is ‘ethically wrong,’ and ‘is never the only appropriate procedure’.
  • It is a medical fact…that unborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli. Thus, during a partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain.
  • In light of this overwhelming evidence, Congress and the States have a compelling interest in prohibiting partial-birth abortions. In addition to promoting maternal health, such a prohibition will draw a bright line that clearly distinguishes abortion and infanticide, that preserves the integrity of the medical profession, and promotes respect for human life.[42]

 

Congress, hoping to avoid the impermissibly broad reading the Court used to strike down Nebraska’s Partial-Birth Abortion Ban, carefully crafted the descriptive language of the procedure. However, as seen in the Congressional findings listed above, Congress adamantly stuck by their belief that Partial-Birth Abortion was never medically necessary, and as such, did not include any language regarding a health exception to the ban.

Before it could even be signed into law by President George W. Bush, the Partial-Birth Abortion Ban of 2003 was challenged by abortionist Leroy Carhart, who had previously been the victor in Stenberg The resulting case, Gonzales v. Carhart, Court concluded that the legitimacy of the government’s interests in banning partial-birth abortions disproved the notion that the ban had the impermissible purpose of placing a “substantial obstacle in the path of a woman seeking an abortion.”[43]

Justice Kennedy once again wielded his pen in defense of State’s interests, composing the majority opinion of the Court. Justice Kennedy reasoned that the “central premise of [Casey]” was “that the government has a legitimate and substantial interest in preserving and promoting fetal life.”[44] In seeking to balance “the State’s interest in promoting respect for human life at all stages in the pregnancy,”[45] and a woman’s right to choose abortion, the Court ruled that the Partial-Birth Abortion Ban advanced a legitimate legislative purpose by “express[ing] respect for the dignity of human life,”[46] by promoting the state’s interest in “protecting the ethics and integrity of the medical profession,” and by preventing the “further coarsen[ing] [of] society to the humanity of…all vulnerable and innocent human life.”[47]

In finding that the Act’s lack of a health exception did not impose an “undue burden,” the Court considered the medical findings Congress relied upon to justify the Act.[48] This gave Justice Kennedy the chance to reiterate his arguments from his previous dissent in Stenberg, now held by the majority in Gonzales, regarding the right of a state to take sides in medical debates, ruling once and for that, “[m]edical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”[49]

The dissent in Gonzales harshly criticized the majority decision as, “blur[ring] the line, firmly drawn in Casey, between pre-viability and post-viability abortions.”[50]  Outside critics of the Court’s decision have gone even further, claiming that the fact that the ban applied both pre- and post-viability constituted “a direct violation of Roe’s bright line rule,” and that the Court’s decision to uphold it “demonstrated that the fixed point of viability can be bypassed.”[51]


[1] See e.g., Poe v. Gerstein, 517 F.2d 787, 789 (5th Cir. 1975); Friendship Medical Center v. Chicago Board of Health, 505 F.2d 1141, 1148 (7th Cir. 1974); Word v. Poelker, 495 F.2d 1349 (8th Cir. 1974).

[2] Connecticut v. Menillo, 423 U.S. 9, 10 (1975).

[3] Planned Parenthood v. Danforth, 428 U.S. 52 (1976).

[4] Bellotti v. Baird, 428 U.S. 132 (1976).

[5] Harris v. McRae, 448 U.S. 297 (1980).

[6] City of Akron v Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983).

[7]Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

[8] Id., at 772.

[9] Rust v. Sullivan, 500 U.S. 173 (1991).

[10] Thornburg, 476 U.S. at 772.

[11] Bellotti, 443 U.S. at 640; Harris, 448 U.S. at 235.

[12] Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[13] Id., at 846.

[14] Id., at 867.

[15] Id., at 865.

[16] Id., at 856.

[17] Id., at 998 (Scalia, J., dissenting).

[18] Id., at 956-7 (Rehnquist, C. J., dissenting).

[19] Id., at 851.

[20] Id., at 877.

[21] Id.

[22] See generally, Id.

[23] Supreme Court Justice Antonin Scalia, Remarks to Baton Rouge Federalist Society (October 11, 2013).

[24] Casey, 505 U.S. at 870.

[25] Id.

[26] Id., at 860 (23 weeks LMP).

[27] Id., at 876.

[28] Id.

[29] Id., at 944.

[30] Stenberg v. Carhart, 530 U.S. 914 (2000).

[31] Id., at 959-60.

[32] Stenberg, 530 U.S. 914.

[33] Id., at 964.

[34] Id., at 963.

[35] Id., at 970.

[36] Kansas v. Hendricks, 521 U.S. 346 (1997).

[37] Id., at 360.

[38] Stenberg, 530 U.S at 797.

[39] Id., at 961.

[40] Id., at 953; Korematsu v. United States, 323 U.S. 214 (1944) (Upholding the constitutionality of the military imprisonment of thousands of American citizens of Japanese descent , in internment camps during World War II); Dred Scott v. Sandford, 60 U.S. 393 (1857)(Holding  that an African American slave is not a “person” under the U.S. Constitution; and was therefore the property of the slave owner).

[41] Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531 (2004).

[42] See 18 U.S.C. § 1531 (note following) (congressional findings for Pub. L. No. 108-105, §2, Nov. 5, 2003, 117 Stat. 1201).

[43] Gonzales, 550 U.S. at 160.

[44] Id., at 157.

[45] Id., at 163 (emphasis added).

[46] Id., at 157.

[47] Id.

[48] Id., at 165.

[49] Id., at 164.

[50] Id. at 186.

[51] Katia Desrouleaux, Banning Partial-Birth Abortion at All CostsGonzales v. Carhart: Three Decades of Supreme Court Precedent “Down the Drain”, 35 S.U. L. Rev. 543, 553 (2008); Jason Pill, Constitutional Law: Drawing A New Critical Line Between the State’s Competing Interests in Abortion Regulation to Comport with Social Palpability Gonazales v. Carhart, 127 S. Ct. 1610 (2007), 19 U. Fla. J.L. & Pub. Pol’y 369, 378 (2008).

The Viability of Roe: Part 1, What Roe Really Says

“[A] State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.  At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.”[1]

A. Roe v. Wade and Doe v. Bolton

The Supreme Court’s decisions in Roe v Wade and Doe v Bolton are frequently included on lists of the most controversial cases the Court has ever decided, and critics on both sides of the abortion debate have expressed themselves as unhappy with the reasoning employed by the Court.[2] But what the Court actually decided in these two controversial cases is often overlooked in the larger debate.

Roe and Doe were decided on the same day, and were meant to be companion cases that were read together.[3] In Roe, the Court struck down a Texas Statute prohibiting abortion except when the mother’s life was in danger, ruling that the “right to privacy” in the penumbras of the Constitution included a woman’s right to decide “whether or not to terminate her pregnancy.”[4] However, the Court went on to hold that this “right is not unqualified and must be considered against important state interests.”[5] According to the Court, there were only two state interests in regards to regulating abortion: the state’s interest in preserving the health and safety of the mother, maintaining appropriate medical standards, and protecting the “potential life” of the fetus.[6] In an attempt to balance these state interests with the newly found right to choose abortion, the Court constructed an elaborate trimester framework that dictated when the state was allowed to regulate abortion. The Court recognized that while these interests existed from the outset of pregnancy, that at some point during the pregnancy these interests became “compelling” enough to sustain regulation of abortion.[7] The Court in Roe decided that this “compelling point” for the State’s interest in preserving fetal life was at viability (which the Court placed around 26 weeks post-fertilization[8]), the point at which the fetus has the capacity for “meaningful life outside the womb.”[9] After this point, States could justify their regulation and even prohibition of abortion based on their interest in preserving fetal life.

However, both Roe and Doe also imposed rigorous health exceptions to any regulations on abortion, listing as factors to consider:

“All factors-physical, emotional, psychological, familial, and the woman’s age-relevant to the well-being of the patient…”[10]

“Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases … the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.”[11]

Under these factors, the “definition of a woman’s health is so broad that there would never be a time when a woman could not find an abortionist willing to perform an abortion.”[12]

In his dissent, Justice White called the majority decisions in Roe and Doe “an exercise of raw judicial power,” and “an improvident and extravagant exercise of the power of [judicial review].”[13] Justice White argued forcefully that there is “nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women.”[14]

B. Myths about Roe v Wade

1. Abortion is a fundamental right

Many abortion supporters, including elected officials and leaders of pro-abortion organizations, will tell you that the Supreme Court declared abortion a fundamental right in Roe v Wade. But this simply isn’t true. In fact, no majority opinion by the Supreme Court has ever declared abortion a fundamental right.

In constitutional law, there are three levels of judicial scrutiny the Court will use when deciding cases, these levels are: (1) Strict Scrutiny, (2) Intermediate Scrutiny, and (3) Rational Basis. When a fundamental right is at issue in a case, the Court will use the highest level of scrutiny, Strict Scrutiny. Under Strict Scrutiny, the Court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.

While much of the language used in Roe tended to imply Strict Scrutiny, the Court did not actually declare the right fundamental, and subsequent cases prove this. Though other cases will be discussed in detail later in the series, it is necessary to point out that in Planned Parenthood v Casey, the Court proved that abortion is not a fundamental right by adopting an Intermediate Scrutiny approach known as “Undue Burden.” Instead of the government having to prove a “compelling interest”, the burden of proof is placed on the opponent of the law, to show that the law places an Undue Burden on a woman seeking an abortion. Clearly, this is not Strict Scrutiny; since that is the level used when looking at fundamental rights, this shows that abortion is NOT a fundamental right.

2. Roe legalized abortion only in the first three months.

This one was actually repeated by my Constitutional Law professor last semester, and is one of the most commonly repeated myths about Roe. This myth is so pervasive that the vast majority of Americans genuinely believe that this is the case. In fact, when polling is done regarding public opinions about Roe, many of the pollsters frame their question in these terms: “In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?”[1]

The actual ruling in Roe split the ability of governments to regulate abortion into three categories, based on the medical classification of trimesters. Under this trimester framework, the Court banned any regulations during the first trimester, allowed minimal regulations in the second, and allowed most regulations in the third.[2] The Court actually legalized all abortions prior to viability, which it placed at about 28 weeks, which is about 7 months.[3] As mentioned earlier however, both Roe and the companion case Doe, even AFTER viability has passed, there must be a “health exception” that allows the mother to abort for any of the reasons listed previously (fiscal, mental, familial, and personal health).[4] The person who decides whether a woman meets the health exception is the abortionist, creating the possibility that a woman can get an abortion at any point prior to birth (even the day before delivery) as long as she can find an abortionist willing to perform it.

3. Overturning Roe will put women in jail.

Another common myth is that women would be thrown in jail for getting an abortion if Roe was overturned. Roe’s core holding is that abortion cannot be banned by the state, so overturning it wouldn’t result in a nation-wide ban on abortion. In order for this to happen, the Court would have to go a step further and hold that the preborn are “persons” under the 14th Amendment, and therefore abortion is a violation of the Due Process Clause. Unless the Supreme Court did this in addition to overturning Roe, abortion would remain legal unless a state chose to expressly ban it. While it is true that some states, like Louisiana, have trigger laws that would automatically ban abortion if Roe is overturned, most of them do not. The reality of a post-Roe America would most likely mirror the level of regulations that exist in the present day- conservative states with many current regulations might chose to ban abortion, more liberal states would leave their regulations the same and still allow abortions to continue as before.

Even in those states that banned abortion, it would be very unlikely that women would be sent to jail for getting an abortion. Looking back pre-Roe, when most states banned abortion, there are only two known cases in which a woman was charged in any State with participating in her own abortion: Pennsylvania in 1911 and Texas in 1922. There is no documented case since 1922 in which a woman has been charged in an abortion in the United States. In reality, the woman was typically treated as a second victim of abortion, the real target of these laws was the abortionist. Prosecuting a woman as an accomplice to the abortionist raised serious evidentiary problems that made it counterproductive- the testimony of an accomplice alone is not enough to meet the burden of proof in a criminal case, and the accomplice’s testimony must be corroborated by another source. It was difficult to prosecute abortionists under this requirement, and in order to convince women to testify against the abortionist, prosecutors had to promise them that they wouldn’t be charged for admitting to an abortion.[5]

 


[1] Roe v. Wade, 410 U.S. 113, 154 (1973).

[2]  See, e.g., Laurence H. Tribe, The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1, 7 (1973); Benjamin Wittes, Letting Go of Roe, THE ATLANTIC MONTHLY, Jan/Feb 2005); John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 935-37 (1973).

[3] Roe, 410 U.S. at 116; Doe v. Bolton, 410 U.S. 189 (1973)

[4] Roe, 410 U.S. 152-3.

[5] Id., at 154.

[6] Id.

[7] Id.

[8] Id., at 160 (28 weeks LMP).

[9] Id., at 163.

[10] Doe, 410 U.S. at 180.

[11] Doe, 410 US at 192.

[12] Clarke Forsythe et al., Constitutional Law & Abortion Primer, 10 (William L. Saunders ed., Americans United for Life 2011) available at: http://www.aul.org/primer/.

[13] Doe, 410 US at 221.

[14] Id.

MYTHS 

[1] Harris Polling Question from The Wall Street Journal http://online.wsj.com/news/articles/SB114668092648642849

[2] Roe, 410 U.S. 154-6

[3] Id., at 160.

[4] Doe, 410 U.S. at 180; Roe, 410 U.S. at 149.

[5] Forsythe, Clark, Why the States Did Not Prosecute Women for Abortion Before Roe v. Wade. http://www.aul.org/2010/04/why-the-states-did-not-prosecute-women-for-abortion-before-roe-v-wade/

Dear Wendy Davis,

(this originally was published by Live Action News)

WendyDavis

Dear Wendy Davis,

I was pretty taken aback by your comments today in your interview with the Weekly Standard. Disturbing enough was the reiteration of Nancy Pelosi’s argument that “abortion is “sacred ground,” but I was completely floored that you claimed to know nothing about the horrific Gosnell case. Are you being willfully ignorant of this travesty, or are you so blinded by the abortion money being thrown into your possible governor’s race that you are willing to risk women’s lives instead of researching what is going on in abortion clinics across America?

But perhaps you’ve been too busy helping Planned Parenthood try to avoid clinic regulations that would make abortion safer for the women involved, and didn’t get to read any of Live Action’s extensive Gosnell coverage. Or maybe the lack of mainstream media coverage on the important issue of abortion is to blame for your ignorance. Either way, I’ve decided to help you out with this handy little list of facts from the Gosnell case:

  • Gosnell also hired a high school girl, who was responsible for administering dangerous drugs to patients (Grand Jury Report, pp. 2, 34-35).
  • Basic sanitation requirements were ignored, resulting in many sexually transmitted diseases being given to his patients (Grand Jury Report pp. 9, 48).
  • In addition to his disgusting abortion mill, Gosnell also operated an illegal prescription pain medicine mill, which is the only reason he was even investigated (Grand Jury Report, pp. 2, 19-22).
  • Gosnell performed illegal late-term abortions, after the point of viability (Grand Jury Report, pp. 3).
  • Gosnell was usually absent from the clinic during the day, which led to many patients giving birth to their children on the floor, and even in toilets, with no medical personnel to care for them (Grand Jury Report, p. 4).
  • When Gosnell was there when the women gave birth, he would cut into the infants’ necks with scissors, severing their spinal cords, to ensure “fetal demise” (Grand Jury Report, pp. 4, 99-116).
  • While he performed these murders, Gosnell would laugh and joke about the size of the infants – one time remarking that a child was “big enough to walk [him] to the bus stop” (Grand Jury Report, pg. 5).
  • Gosnell was a danger to the women who trusted their lives to him – botching many abortions, and leaving women with permanent injuries (Grand Jury Report, pp. 6, 71-72).
  • One of these women was Karnamaya Mongar, a 41-year-old refugee who had recently come to the United States from Nepal,
    who was killed by Gosnell (Grand Jury Report, pp. 7-8, 117-136).
  • Gosnell’s clinic wasn’t inspected for nearly 17 years, despite numerous complaints and reports of shoddy practices, allowing him to get away with these illegal and dangerous practices (Grand Jury Report, pp. 9-13, 137-218).
  • Gosnell failed to keep his clinic clean, and to make sure that his equipment was up to date and working properly (Grand Jury Report, pp. 44-49).
  • Gosnell implemented racist procedures when it came to patient care (Grand Jury Report, pp. 61-62).
  • Gosnell defrauded patients, insurance companies, and even nonprofit organizations out of millions of dollars (Grand Jury Report, pp. 88-90).
  • Gosnell took unauthorized photographs of patient’s vaginas (Grand Jury Report, pg. 73).
  • Gosnell cut the feet off some of the children and displayed them in glass jars (Grand Jury Report, pg. 74).

Now that you know the facts of the case, perhaps you can answer the reporter’s original question:

What is the difference between those two, between legal abortion at 23 weeks and what Gosnell did? Do you see a distinction between those two [acts]?

Thanks,

Deanna

CPAC 2013

I am so excited to be going to CPAC 2013 next week! It was a last minute decision but I’m glad I made it!

I’m a bit OCD, so I’ve been pouring over the agenda trying to determine what I want to go see, hear, and do the most- and all of it looks amazing! A few things that I’m really looking forward to are:

Palin, Gingrich, Perry, Jindal & Ryan’s speeches. Even if you aren’t a fan of them, you have to admit they know how to get people excited! As a former speech major, I love watching them perform- because that is what they do!!

The Faith and Family Coalition Prayer Breakfast.

AUL’s screening of “3801 Lancaster” which is a documentary about the horrific discoveries the FBI made in their 2012 raid of Kermit Gosnell’s abortion clinic. I’m sure this movie is going to be hard to watch, but I know it’s important that it gets seen!

Mike Huckabee’s pro-life movie “The Gift of Life.”

“The Making of America: The Substance and Meaning of the Constitution” lecture

The Honorable Mike Lee, “The Relevance of the US Constitution Today” lecture

A panel on the Benghazi cover-up.

Fight Club 2013, which is with Paul Belaga and Tucker Carlson

A panel on engaging youth in the conservative movement, obviously something near and dear to my heart!

Occupy Unmasked- the late Andrew Brietbart’s documentary on Occupy Wall Street

Meet and Greet with Paul Ryan!!!!!!!

“Hillary: The Movie” is the movie behind the Supreme Court’s Citizens United case! As a law student, I must go!

Gingrich’s documentary about my favorite president, Ronald Reagan.

A luncheon with Santorum

A panel on Abortion and Religious Liberty led by Marjorie Dannenfelser, President of the SBA List.

And there’s so much more!

I’ll do my best to keep ya’ll updated next week!

I AM THE 53%

My Dad worked nights so I could go to private school and get the best education possible.
I started working on the day it became legal for someone to hire me- my 16th birthday.
I’ve plunged toilets, cleaned up puke, and interned for free- because I believe hard work is how you achieve the American Dream, NOT government handouts.
I want a family but I realize that I cannot afford one right now, so I work hard so that one day I can.
I took out students loans, and will probably take out more- because I believe education is an important self-investment.
I have some credit card debt, but I don’t blame Wall Street or greedy corporations-I blame myself for buying too many shoes!
I don’t like the direction our country is going but instead of sitting around with a sign, I ran for office, I volunteer for candidates I believe in, and I WORK to affect change.
I AM THE 53%

iChooseLife

Her name is Joanne Schiebel. In 1954, she was a young unmarried college student who discovered that she was pregnant. In the 1950s, her options were limited. She could have had an abortion – but the procedure was both dangerous and illegal. She could have gotten married, but she wasn’t ready and didn’t want to interrupt her education. Joanne opted, instead, to give birth to the baby and put it up …for adoption.And so it was that in 1955, a California couple named Paul and Clara adopted a baby boy, born out-of-wedlock, that they named Steven.This adopted baby grew into a man who changed the world. We celebrate his life and his accomplishments and wish him the best in the afterlife. The baby’s name is Steve Jobs.

If you are thankful for the life of Steve Jobs; if you are thankful for the contributions he has made to the world and your life then today…thank his mother Joanne Schiebel for choosing life.

Imagine for a moment how many Steve Jobs have been aborted. Perhaps the baby that God gave us to cure Cancer? Perhaps the baby that would have grown up and invented an alternate fuel method that would decrease or completely nullify our dependency on gas?

I saw this on Facebook and I was shocked, I had no idea that Steve Jobs was adopted. As the world mourns the life of this visionary, we must remember that he was only able to do what he did because HIS MOTHER CHOSE LIFE.
Everyday there are 4,000 innocent children lost in the name of “choice”. That’s 4,000 potential Steve Jobs, Mother Theresas, Presidents, Writers, Doctors, Teachers, Pastors, Missionaries, Scientists, and Visionaries.
As someone who was adopted, I can speak to the idea of potential with authority. I’m not done with my life yet, and I believe that I can continue to affect change. I will continue to fight against abortion until all of my innocent brothers and sisters have the chance to do the same.