Beckwith #3: What Roe v. Wade Said and Did, Part One [SK]

Previous posts on Francis Beckwith's Defending Life:

#1: Overview of major themes
#2: The nature of moral reasoning

In chapter 2, Frank turns his attention to the most controversial Supreme Court ruling to date, Roe v. Wade (and its companion case, Doe v. Bolton). The chapter answers three key questions: 1) What did the Court actually conclude in Roe? 2) What was the Court's reasoning in the case? 3) How did the case shape future Court decisions, such as Casey vs. Planned Parenthood? The short answer is the Roe Court concluded that a woman has a right to abort for any reason or no reason through all nine months of pregnancy and it relied on a faulty history of abortion law to arrive at that extreme conclusion. Moreover, the premises put in place by Roe were later reinforced and made worse by the Casey decision.

(If you are still awaiting your copy of Defending Life, you can still follow the discussion: Frank provides a complete legal analysis of these three questions in the Liberty University Law Review.)

Regarding question #1, The Court in Roe struck down the abortion laws of all 50 states and concluded that a woman may obtain an abortion for any reason she deems fit through all nine months of pregnancy. That is, the Court mandated a policy of abortion-on-demand that no state anticipated prior to the ruling. True, Justice Blackmun did institute a trimester system which he claimed balanced the interests of the State, woman, and fetus, but a quick glance at Roe and Doe shows that alleged "balance" is a sham.

During the first three months of pregnancy (1st trimester), the abortion decision is the woman's alone. Under no circumstances may the state move to protect fetal life. The same is true for the second trimester, where abortion may only be regulated to safeguard the woman, not her unborn offspring. During the third trimester, the state has a compelling interest in fetal life (now that the offspring is viable) and may--if it so chooses--pass legislation protecting the unborn. However, there's a huge catch: The proposed legislation must not interfere with the woman's "health." In Doe, the Court 's definition of "health" is so broad you can drive a mack truck through it. Accordingly, "health" must be defined "in light of all factors--physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient. All these factors relate to health." (Doe v. Bolton, 410 at 179, 192) Given all pregnancies impact a woman's emotional and family situation, the court's "health" provision has the practical effect of legalizing abortion up until birth.

Indeed, a 1983 U.S. Senate Judiciary Committee concluded that "no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy." (Report, Committee on the Judiciary, U.S. Senate, on Senate Resolution 3, 98th Congress, 98-149, 7 June 1983, p. 6.)

As to how the Court arrived at its conclusion (question #2), the answer from legal scholars--including many who support legalized abortion at some level--is clear: Justice Blackmun relied on an extremely flawed history of U.S. abortion law written by an attorney for The National Abortion Rights Action League, Cyril Means. In short, Blackmun had to rewrite history to overcome the fact that by 1869, nearly every state and federal territory had laws restricting abortion. The stated purpose of those laws, which coincided with advances in medical science, was primarily to protect the unborn. These laws had not been seriously challenged prior to the late 1960s, so how was he now going to strike them as unconstitutional?

After reading Means, Blackmun concluded that 1) prior to the 1850s, the common law generally did not restrict abortion before quickening, and 2) when abortion restrictions were later passed in states and federal territories, their primary intent was to protect the mother from unsafe medical procedures, not affirm the right to life of her unborn offspring.

Both conclusions were false. True, common law in the early 1800s did allow for abortion before "quickening," but that's only because the primitive embryology in play at that time could not determine if life was present until the mother felt the child move. As John Warwick Montgomery points out, lawmakers were saying as soon as you have life, you must have laws protecting that life. In no way did the common law or individual state laws allow for abortion after life was present. Indeed, the most important burst of anti-abortion legislation took place in the late 1860s, just as the science of embryology established the humanity of the unborn from conception, not quickening.

Moreover, Blackmun was just flat wrong about the intent of these laws. Although the mother's safety was a secondary consideration, anti-abortion lawmakers, relying on the advice of physicians, made clear their primiary intent to stop the "unwarranted" destruction of human life.

In my next post, I'll deal with question #3--How Roe shaped subsequent court decisions--as well as why Blackmun's appeal to the 14th amendment fails.