Roe v. Wade: A sound conservative ruling

The Supreme Court ruling in Roe v. Wade was a sound, conservative application of well-established law to a new set of facts, never before presented to the court.

I've said that many times, on many Catholic blogs, all of them conservative, and on a few other conservative blogs, which are not Catholic. The most coherent, thoughtful, response I've gotten is "Your description of Roe v. Wade is rejected by most liberal jurists nowadays. They think it's bad law."

The first and most obvious response I can offer is, that's what you get for asking liberal jurists. Like liberals in general, they are a spineless bunch of cretins for the most part. Perhaps that is why they are ducking the tomatoes instead of standing up with dignity and examining the law.

But it remains incumbent upon me to sustain my own argument, even if nobody has offered a significant challenge. So, after re-reading for the umpteenth time the actual content of Justice Harry Blackmun's opinion, delivered for a 7-2 majority, and therefore, the decision "of the court," here is my case that this was a sound, conservative application of well-established law.

I will not, at this time, address the issues of standing. These have not been at the heart of intellectual challenges to Justice Blackmun's reasoning.

Perhaps the first relevant point is "It is undisputed that, at common law, abortion performed before "quickening" -- the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy -- was not an indictable offense." This is sustained by a series of standard legal texts, listed in Footnote 21.

That is important, because the common law was already in effect in all thirteen British colonies at the time of independence, and is generally considered by all state and federal courts to have remained good law in the United States, except where a specific provision of federal or state constitutions said otherwise.

A review of American law found that until the mid-19th century, all but a few states followed pre-existing English common law. Connecticut was the first state to enact abortion legislation, in 1821, which applied only to a woman "quick with child." Abortion before quickening was made a crime only in 1860.

What really remains in controversy is the third reason for adopting criminal statutes examined by the court: "the State's interest -- some phrase it in terms of duty -- in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception."

It is worth reproducing at length the legal precedent on which the court began its disposition of the case:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U. S. 250, 141 U. S. 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U. S. 557, 394 U. S. 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U. S. 1, 392 U. S. 8-9 (1968), Katz v. United States, 389 U. S. 347, 389 U. S. 350 (1967), Boyd v. United States, 116 U. S. 616 (1886), see Olmstead v. United States, 277 U. S. 438, 277 U. S. 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. at 381 U. S. 484-485; in the Ninth Amendment, id. at 381 U. S. 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U. S. 1, 388 U. S. 12 (1967); procreation, Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 405 U. S. 453-454; id. at 405 U. S. 460, 405 U. S. 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); and childrearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 535 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

However, the court rejected the argument that the woman's right is absolute, that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.

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. Jacobson v. Massachusetts, 197 U. S. 11 (1905) (vaccination); Buck v. Bell, 274 U. S. 200 (1927) ( sterilization).

We, therefore, conclude 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 regulation.

The court reviewed a long series of recent lower federal court and state supreme court decisions - which is almost mandatory before the court takes it upon itself to resolve a question on which lower courts are divided.

The court then carefully considered the argument "that the fetus is a 'person within the language and meaning of the Fourteenth Amendment." Justice Blackmun's opinon explicitly acknowledged that "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."

But "Wade" and those arguing the "Wade" side of the argument "conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment." Accordingly, although Justice Blackmun did not say this in so many words, it would have been flagrant judicial activism to have made up a new and novel holding for which there was no precedent whatsoever.

The Constitution does not define "person" in so many words, and Blackmun said so. Section 1 of the Fourteenth Amendment uses the word three times. One defines citizens as "persons born of naturalized in the United States." In every place where the word appears, "the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application."

The court meticulously reviewed the few questions in which lower courts had considered whether the word "person" as used in the constitution applies to "the unborn." Each of these few cases were in accord with the view that it did and does not.

The court further conservatively refrained from entering into speculation about matters beyond its competence:

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

Having explicitly rejected the argument that the state had no power to interfere for the entire nine months of pregnancy, the court adopted the medical standard of "quickening" as the point at which "the State's important and legitimate interest in potential life," becomes compelling.

While advances in medical technology and knowledge between 1973 and 2011 may have superceded the understanding of "quickening" on which the court relied, that was a boundary with well established legal standing, rooted in centuries of common law, and even in many, although not all, of the early criminal abortion statutes adopted in the 19th century.

To say that the decision is a conservative application of well established law is not to say that abortion is a good choice, a wise choice, or that it is a morally right choice to make. But, given the language of the Constitution, which is the supreme law of the land, given the court's own precedents, and after carefully examining the prior decisions of lower courts, and the common law, there was little or no basis to make any other decision.

The court made a ruling on the constitutional boundary between the powers of the state, and the liberty of the individual. It made no ruling on the wisdom of seeking or performing an abortion. If "liberal jurists" can't figure that out, perhaps they need to take a Continuing Education in the Bar seminar to learn how to apply mandatory and persuasive law to arrive at a reasoned decision.