Anthony L. Ives is an Instructional Assistant Professor in the Department of Political Science at Texas A&M University.
In his draft opinion from a pending Supreme Court decision, Justice Alito claims that Roe v. Wade is “egregiously wrong.” The draft accurately cites John Hart Ely, Lawrence Tribe, and the late Justice Ruth Bader Ginsburg as critics of the reasoning in Roe, suggesting that it was wrongly decided from the start. And these are not Roe’s only critics; liberal constitutional theorist Jack Balkin has said that Blackmun’s essential holding is “altogether too cursory” and Akhil Reed Amar calls Roe “textual gibberish.”
With due respect to these legal scholars, I disagree. Roe is simple and straightforward, requiring no new principles of constitutional law but rather only applying already accepted holdings from the common law and the Constitution. To summarize, there is a recognized constitutional right to privacy. One aspect of privacy protects doctor-patient relationships. Abortion is a medical procedure entitled to such privacy. It is difficult to find a weak link in this argument. Five decades later, Alito has made no real progress over the initial dissents which erroneously claimed that “history and tradition” defined the entire scope of unenumerated rights. Roe is also subject to willful misinterpretation that should be rejected: it is not a decision which defends or requires abortion on demand.
In this essay I will defend Roe as good law, proving that it does not belong in the anti-canon of Dred Scott, Plessy, and Korematsu, and show that its derided trimester system is a reasonable and viable judicial remedy to repeated and sustained violation of rights by state law.
While scholars like Balkin and Amar object to the fact that Roe does not spend much time citing clauses of the Constitution, opinions of the U.S. Supreme Court do not provide elaborate justifications for established constitutional rights. In legal writing one relies on precedent to provide the justifications for established rights. The right to privacy, though unenumerated, was settled law even in 1973. In 2022, it remains settled law, as even Justice Alito’s draft opinion fails to touch or dislodge that right.
Justice Blackmun, writing for the Court in Roe, famously concluded “that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against … important state interests in [promoting the health of pregnant women, life, and future life].” One should immediately note the compromise position that Roe stakes out in the conflict between state interests and personal freedom.
Since the abortion procedure differentially affects women’s lives and health at different points of the pregnancy, Blackmun found that the categorical bans found in states such as Texas were flagrantly out of alignment with any rational bounds of the state’s power and therefore unconstitutional. But he equally rejected the argument of Roe that her privacy was absolute, as he noted precedents such as Jacobson v. Massachusetts, recognizing that individual autonomy could never be absolutely protected in society. In Jacobson, the Supreme Court found that the state’s interest in promoting public health by creating a mandatory vaccination statute could overcome the fundamental bodily right to autonomy. So long as states have a role to play in public health (and they do so to this day as confirmed by the COVID-19 pandemic) there is no such thing as an absolute right to privacy; states can and will infringe even upon fundamental rights when doing so is the only means to satisfy a legitimate government interest.
That the right to privacy applies to abortion is contested, however, and was from the start. This is clear in Justice Rehnquist’s dissent in Roe. “A transaction resulting in an operation such as this,” said Rehnquist, “is not ‘private’ in the ordinary usage of that word.” There he applied the common, but by no means reputable method of placing words in scare quotes to suggest his lack of agreement with their usage. By placing privacy in quotes one can only wonder why he thought the abortion decision was not private. It would have been far better for the Justice to explain himself, rather than leaving the reader to guess. Potentially as opposed to Griswold v. Connecticut, which relates to personal sexual behavior in the bedroom with the door closed and the blinds drawn, he means to imply that abortion is not so self-evidently private.
The idea that constitutionally protected privacy obtains only in our most intimate relations is untenable. When Justice Rehnquist or I go to the urologist I am quite sure that our transactions are not public. It seems to me those medical procedures are private by nature (though emergency medical actions may be taken in public incidentally) and we have state and federal laws which protect medical privacy as a matter of course. The restriction of medical privacy by statute is inherently questionable, as implied by Justice Thurgood Marshall, who asked at oral arguments if any other medical procedures were prohibited by Texas and made felonies; the advocate of Texas told him there were none.
Given that I think Justice Blackmun has hit upon something especially important, medical privacy, it now becomes clear why so much of the Roe v. Wade decision focuses on doctors and their ethics. Abortion is obviously a medical procedure with an important moral dimension; it either terminates the potential development of life or ends a human life, depending on one’s philosophical, moral, or religious convictions. If it turns out that abortion is a procedure that is fundamentally unmedical, the taking of life which should instead be preserved, as is implied by the Hippocratic oath, then there can be no medical privacy involved in making such a decision, no more so than the privacy one can assert in buying poisons.
Thinking along these lines it is plausible to wonder if the abortion procedure is unique in medicine in terminating life or potential life. Simply put, abortion is not unique. All risky medical procedures have the possibility of ending a life. And many medical decisions that involve end-of-life care can involve death as a direct, foreseeable, and even intended result. To withdraw artificial life support, for instance, is just as much of a medical procedure as to start it in the first place. It is difficult to think any state would pass a law intruding between doctors and caregivers to prohibit the removal of patients from respirators after they lose a battle against COVID, or cancer. To imagine a state law making such conduct a felony on par with homicide is unthinkable. Such laws are out of alignment with any ordinary understanding of what it means to have a private sphere of conduct protected from unnecessary and irrational government interference.
Blackmun’s much maligned research discovers exactly these kinds of insights about medical ethics and the nature of medical care in the case of abortion. The most important outcome of this research is the accurate finding that medical professionals disagree amongst themselves about the ethical implications of abortion. The majority of doctors, however, were willing to state the view that abortion is a necessary medical procedure, as announced in resolutions of the American Medical Association in 1970. Because of lack of unanimity in this view, the association insisted that doctors cannot be compelled to perform an abortion if it violated their medical or moral principles. Indeed, Roe v. Wade did not and has not displaced the right of doctors to refuse to provide abortions. Roe v. Wade created no affirmative right to abortions, so pregnant women are not entitled to state resources in obtaining one, nor for coercion from the state to force doctors to offer them such a procedure, in another clear compromise of absolute bodily autonomy.
Roe v. Wade is a judicial opinion, judge-made law, not a statue written by our democratically accountable legislators. Surely, opponents of Roe say, the decision of how or whether to regulate this medical procedure should lay with the people and their democratically elected legislatures (or perhaps with the U.S. Congress). But when cases or controversies implicate constitutional rights, it is the job of the Supreme Court to decide what the Constitution means. The advocate for Texas at the Supreme Court in oral arguments did not disagree. He told the Justices that “[the people of Texas] don’t envy the Court for having to make this decision.” Nowhere in the arguments did either the Justices or the parties suggest that decision was not properly judicial.
Accordingly, the main argument Texas provided in the oral arguments was not about deference to state authority. Instead, Texas stated that it banned abortion because the fetus is a legally recognized person under the Constitution. Texas stated that it considered the single cell of human genetic material formed at conception to be “a human baby, a person.” Justice White asked Texas’s advocate, “You’ve lost your case if the fetus or the embryo is not a person, is that it?” To this the lawyer said: “Yes sir.”
In other words, the argument was not about whether a state could decide abortion policy, but about whether the fetus was a life protected by the Constitution. If a fetus is a person, it must have the all the protections of the U.S. Constitution. The Constitution says that persons cannot be deprived of their life without due process. Obviously on such a view, any laws allowing abortion would need to be declared unconstitutional in every state. In fact, Texas’s law, which allowed for abortion when the woman’s life was at risk, might have been too liberal on these grounds.
At oral arguments Justice White was taken aback by Texas’s claims; its argument was logically untenable and constitutionally unsound. Texas allowed abortion when the life of the mother was threatened, but surely did not offer a “life of the mother exception” if a mother or doctor was accused of infanticide. Justice Thurgood Marshall asked sarcastically whether a law could authorize a doctor to kill a husband if such an action would be in the interest of the wife’s health, referencing laws of other states which allowed abortion if the health of the pregnant woman was endangered. Texas, unsolicited, mentioned at oral arguments that Roe was not challenging a separate statute which prohibited destroying the “vitality or life” of a child immediately before birth. That law provided that the punishment for such crime could include a prison sentence of up to life in prison. The state considered such a killing the equivalent of a homicide. Before the Court Texas claimed that an embryo is a person from the moment of conception, but its law considered their intentional killing as homicide only in the immediate moments before birth.
Texas’s position in 1973 was riddled with inconsistencies and supported by no federal precedent. Justice Blackmun, a nominee of a Republican president and not previously known as a great innovator in the law, dispatched this argument in a brief but compelling fashion in his opinion for the Court. “No case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.” Blackmun further surveyed the Constitution and found both persons and birth referenced separately. But critically, in neither case was it plausible to imagine an unborn person or a citizen before birth. Texas was seeking an innovative argument at the Court, and this was rejected due to the absence of any text or precedent which supported the notion. Justice White does not reference fetal personhood in his dissent. Further, Alito’s leaked argument does not touch on fetal personhood at all.
Fair enough, one might say, but why not simply strike down this specific poorly defended law, and let the political process play out? In short, what legitimacy does a Court have to develop a system such as the trimester framework and enforce it judicially, rather than leaving the details of more rational codes to legislators to develop and elaborate? Justice Rehnquist decisively criticized the decision on these grounds and said the balancing of Roe was “far more appropriate to a legislative judgment than to a judicial one.”
The dissent again proves specious. The Court was forced to act by state legislatures which had fundamentally failed to protect the privacy right of pregnant patients to find a medical provider for abortion and receive this medical care from those willing to provide it. Thus, an equitable remedy needed to be provided to this violation of rights. To even hear the case in the first place the Court had to modify its doctrine of standing to allow a woman whose pregnancy had ended (through birth) to challenge the statute, as equitable relief compensating for the slowness of the justice system compared to relative rapidity of pregnancy. Likewise, the trimester system developed by Blackmun was a viable and reasonable remedy for the systematic violation of privacy rights. The trimester system of Roe corresponds to the fact that the fetus in the latter stages of pregnancy has about all the attributes of a born child but is simply still inside the mother’s womb. A categorical ban on abortions in the final trimester was constitutionally permissible under Roe, and indeed such restrictions are common in democratic nations.
Furthermore, the idea that Roe v. Wade’s central holding is legislative rather than judicial in character betrays little familiarity with what actual statues look like. The abortion “trigger law” in Texas that will go into effect if Roe is struck down contains multiple sections and subsections, filled out with specific definitions, exceptions, and provisions for severability (a technical legal term to allow parts of a law to remain in force if other parts of the law are found unconstitutional). As far as laws go, it is quite short, but it includes numerous details that will occupy the business of future courts in Texas for many years if it goes into effect. The law, being an ordinary statute, contains no substantial argument or rationale for its place in the legal code. Roe v. Wade includes none of these features and most certainly does justify its decision with voluminous text, history, and precedent. It is most certainly a legal opinion, and its holding provides a clear framework that identifies the meaning of the right to privacy as applied to the case of abortion.
The trimester system of Roe should also not be judged in a vacuum; it is far more coherent than attempting to legally render a zygote, which is a single cell, into a legal personhood designed for independently existing human beings with hearts, lungs, names, birth certificates, birthdays. This is the fetal personhood that Texas was contending for and could find no constitutional law to support. But the trimester system is also superior, in a country with a history of preserving innocent life, to the absolute privacy that Roe contended for. Blackmun stated straightforwardly that there was no constitutional precedent for abortion on demand either.
The Court is duty bound to provide not just its understanding of the law but also equitable relief to petitioners when it is necessary to vindicate a violation of rights. The AMA in 1973 and the Texas Association of Obstetricians and Gynecologists in 2022 are adamant that abortion is an essential medical procedure. The fundamental right of patients to choose healthful medical care is completely overthrown when states circumscribe access to that procedure in a way totally dissimilar from any other medical procedure. This restriction can be significant, as in the case of Texas’s pre-Roe law, which prohibited this procedure for patients who are not deathly ill. When you go to the doctor you expect to receive treatment that improves your health, not to have your doctor consider your circumstances, puzzle over state law, have them decide that your illness is not immediately fatal, and then be sent home. By fundamentally offending the right of medical privacy for pregnant women and their doctors, states have shown the clear need for judicial supervision in this area, just as states are supervised for their compliance with the 1st and 2nd Amendments by the Court after a long, sad history of unconstitutionally restricting these rights. An unenumerated right, like privacy, is protected just the same way as an enumerated right, at least in the current configuration of our legal system.
As a result of the profound violation of the Constitution nationwide, the Court needed to devise an equitable remedy to set things right. This is controversial but not unprecedented or unworkable. After the right to an equal education was shown to be violated by many states in the cases brought in the wake of Brown v. Board of Education, the Court eventually ordered mandatory desegregation and busing as a remedy. The Court in Roe had to provide a similar framework to ensure that the constitutionally protected right to privacy would be respected in every state. The trimester framework allows patients to have sovereignty over their bodies when the embryo and fetus are not viable outside the womb, defends the right of states to regulate abortion in the second trimester to further its legitimate interest in promoting the general welfare and health of its citizens. Even further, Roe defends the rights of states to protect fetal life with a complete ban on the procedure in the last trimester if the state so wishes. The idea that states have been left no sovereignty or autonomy in this area is flatly false, as the diversity of state policies regarding abortion rights and access in the United States will clearly attest.
Justice Blackmun, who denied he was for abortion, wrote for the Court and crafted a judicial compromise that has allowed individuals who deeply disagree to inhabit the same polity by ensuring that basic rights are respected in every state. In short, Roe is good law and in no need of revision or invalidation.