ABORTION AND THE CONSTITUTION (Update 2b)

The usual rationales for abortion may be characterized as the "Blob Theory" and the "Limpet Theory." According to the Blob Theory, the unborn child is a blob of tissue, an excrescence on the body of a woman. Her decision to excise it is nobody's business but her own. According to the Limpet Theory, the unborn child is a human being, but one inexplicably parasitic on a woman, who should be able to shed the burden if she chooses. The state can appropriate people's resources for the sustenance of other people, but appropriating their bodies goes too far. The Limpet Theory, being less subject to empirical refutation, has gradually gained ground over the Blob Theory since the early 1990s.

The shift is hinted at in some of the language of Justices sandra day o'connor, anthony m. kennedy, and david h. souter in their joint opinion in planned parenthood v. casey (1992). They occasionally speak of "the life of the unborn" instead of mere "potential life," and at one point they say that the state may inform a woman of the "consequences to the fetus" if she has an abortion. In the end, though, like Justice harry a. blackmun in roe v. wade (1973), they fix "viability" (i.e., ability to survive outside the womb) as the point at which the state can allow the child's interest in remaining alive to outweigh the mother's interest in ending the pregnancy.

Although only three Justices adopted the joint opinion in its entirety, it has become the last word from the Supreme Court on abortion, because the other opinions cancel each other out. So the prevailing doctrine is that the state can require a woman to retain a child in her womb only if the life of the child does not depend on her doing so. Until viability the state can place no "undue burden" on a woman's exercise of her right to an abortion, whereas after viability any restraint is acceptable if it does not endanger the woman's life or health.

The devil, of course, is in the details. There is not space here to cover all the nuances of the subject—parental permission, waiting periods, informed consent, and so on—that Casey touched upon but mainly left loose to rattle around a judicial system where most judges think either that no burden on abortion is undue or that any burden is.

The most important decision since Casey is Women's Medical Professional Corporation v. Voinovich (1997), in which the U.S. Court of Appeals for the Sixth Circuit struck down Ohio's attempt to limit postviability abortions in general and "partial-birth" abortions in particular. The court found three major defects in the statute. (1) It defined the partial-birth procedure in such a way as to inhibit a number of previability abortions. (2) Its restrictions on postviability abortions failed to include an exception for mental, as distinct from bodily, health. (3) It inhibited medical decisions regarding viability and health risk by subjecting such decisions to a requirement of reasonableness, and therefore of peer review. Having made these determinations, the court used a tendentious expansion of the concept of facial invalidity and an equally tendentious contraction of the principle of severability to invalidate the whole statute. There was also a provision for using whenever possible a procedure that would spare the life of a viable child. By holding the provisions of the statute not to be severable, the court made this provision inoperative without ever passing on it.

It is this last provision, passed over in silence, that seems most in keeping with the logic of Casey, such as it is. If there is doubt as to whether an unborn child can survive outside the womb, the obvious thing to do is to bring her out alive and let her try. Only in very rare cases will doing so pose more danger to a woman's health than bringing the child out in pieces. This is especially the case when the danger is to mental health. Generally, that danger comes not from the trauma of delivery but from the responsibility of parenthood. It continues at least through the child's late adolescence, and it affects the father as well as the mother.

Judge Danny Boggs, dissenting in Voinovich, likened legislators trying to comply with Casey to the comic character Charlie Brown, trying in vain to kick a football held by his friend Lucy:

Charlie Brown keeps trying, but Lucy never fails to pull the football away at the last moment. Here, our court's judgment is that Ohio's legislators, like poor Charlie Brown, have fallen flat on their backs. I doubt that the lawyers and litigants will ever stop this game. Perhaps the Supreme Court will do so.

Judging by Casey, this hope in the Supreme Court is painfully misplaced. Note first that the two "prolife" opinions (by Chief Justice william h. rehnquist and Justice antonin scalia—each joining in the other's opinion, with Justices byron r. white and clarence thomas joining in both) do not reflect the moral claim of the life at stake. The Chief Justice says that a woman's interest in having an abortion is a liberty interest supported by the fourteenth amendment, but is not strong enough to outweigh the state's interest in protecting the unborn. Nothing is said of the interest of the unborn in being protected. Scalia says that if reasonable people can disagree on an issue the courts should butt out unless there is a text inviting them in. He is probably right that the ultimate solution to such a question as this must be political, but his opinion is disappointing in its lack of moral focus.

The one morally serious opinion is Blackmun's, and it is dead wrong. He rightly accuses the Chief Justice of construing "personal-liberty cases as establishing only a laundry list of particular rights rather than a principled account." But he totally ignores the humanity of the unborn and regards all limitations on abortion as reducing women to production agents for the state.

Justice john paul stevens goes along with much of the joint opinion, but objects to allowing the state "to inject into a woman's most personal deliberations its own view of what is best." (Contrast john stuart mill, On Liberty (1859): "Considerations to aid his judgment … may be offered to him, even obtruded on him, by others, but he himself is the final judge.")

The joint opinion is mainly notable for its innovative treatment of stare decisis. It creates a special category of cases, those in which the Court "calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." It says that only a substantial change in surrounding circumstances would warrant overruling such a case. It appeals to two examples from the twentieth century (by limiting itself to this particular century, it conveniently avoids the overruling of dred scott v. sandford (1857) at Appomattox): (1) the overruling of plessy v. ferguson (1896) allowing race segregation by brown v. board of education (1954), and (2) the overruling of adkins v. children ' shospital (1923) forbidding wage regulation by west coast hotel v. parrish (1937). In both cases, the joint opinion gets the history wrong. These cases were not overruled because of changed circumstances. They were overruled because they were morally bankrupt when they came down, and were finally recognized to be so. That segregation was a badge of inferiority for Blacks was known at the time of Plessy by the first Justice john marshall harlan in dissent, by every Black person in the United States, and by every segregationist in the South. The idea that it was first discovered in connection with Brown was characterized as a "dangerous myth" by Edmond Cahn, writing in 1955. The myth proved here how dangerous it was. Adkins and Parrish both dealt with whether the support of the working poor was a task of their employers or a task of the state. The economic conditions of the time had no effect whatever on the question. The four Justices from the Adkins majority who were still on the Court dissented in Parrish for the same reasons they voted with the majority in Adkins. Chief Justice charles evans hughes, for the majority in Parrish, uttered the same condemnation of "sweating" employers that Chief Justice William Howard Taft, dissenting, had uttered in Adkins. The moral status of these cases had not changed between decision and overruling; what had changed was the membership of the Court. Those who see Roe as another example of moral bankruptcy can only wait for a comparable change.

Robert E. Rodes, Jr.
(2000)