Truth Before Dishonor

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Roe v. Wade is Not Abortion-on-Demand

Posted by John Hitchcock on 2009/01/26


Hat Tip to Patterico’s Pontifications for indirectly causing me to research this.

Justice Blackmun’s opinion held that states are permitted to have more restrictive legislation as the pregnancy advances. He also stated the state “may go so far as to proscribe abortion during that period” after viability.

Three particular quotes of interest from Justice Blackmun’s opinion follow:

On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree… The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past.

Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute, and is subject to some limitations; and that, at some point, the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [p164] during that period, except when it is necessary to preserve the life or health of the mother.

Justice Stewart’s concurring opinion also held that states are permitted to enact laws prohibiting abortions “in the late stages of pregnancy.”

The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more stringently, or even to prohibit them in the late stages of pregnancy. But such legislation is not before us…

According to Justice Rehnquist in his dissenting opinion, the Supreme Court over-stepped its bounds in making its decision. Justice Rehnquist admonished the Supreme Court for, among other things, legislating from the bench. Despite this, Justice Rehnquist acknowledges the Supreme Court’s decision that states can prohibit abortions after a certain point in the pregnancy.

The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive constitutional law in the Court’s opinion were proper, the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that, at later periods of pregnancy Texas might impose these self-same statutory limitations on abortion. My understanding of past practice is that a statute found [p178] to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply “struck down” but is, instead, declared unconstitutional as applied to the fact situation before the Court.

I often hear that Roe v Wade allows abortions at all stages of pregnancy. As you can see, this is simply not the case. Roe v Wade allows states to prohibit abortions after a certain point.

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5 Responses to “Roe v. Wade is Not Abortion-on-Demand”

  1. Foxfier said

    If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [p164] during that period, except when it is necessary to preserve the life or health of the mother.

    This line was defined in Doe v. Bolton as “all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the wellbeing of the patient.”
    http://www.str.org/site/DocServer/3legal_for_9_months-v2.pdf?docID=145
    So technically, no, it’s not on demand– effectively, yes, it is.

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  2. John said

    It sure would be interesting to survey women 2 years after they had abortions. What emotional, psychological and familial impact has the abortion had on them? The fact many women who have had abortions are now active in the Pro-Life community should serve as a viable counter-point in that particular evaluation.

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  3. Foxfier said

    Logically, yes.

    Of course, logically, if you say that every human has a right to life, liberty and pursuit of happiness, then say “unless their mother decides they’re a hazard”….

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  4. John said

    … enfanticide on demand?

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  5. Foxfier said

    *points to the voting record of then-Senator Obama*
    We actually have to have debate about not killing fully born infants, and put someone who voted against saving them in charge of the executive branch.

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