How Did the Roe vs Wade Decision Work?

Last December I posted an analysis of the Obergefell decision which changed the definition of “marriage” in the United States.  Today I thought I’d give the same treatment to another landmark decision:

Roe vs Wade

What was in that decision?  How was it decided?  Did it make any sense?

Let’s find out.

(The full text can be found [here] and all page number references will be to that PDF)

Standing Room Only:

The decision begins with the background of the law being challenged. In this case it was a Texas law banning abortion except to save the life of the mother.  But all abortion bans nationwide are brought in by implication.  On pages 5 and 6 it says:

“The Texas statutes that concern us here [] make it a crime to  "procure an  abortion," as therein defined, or to attempt one, except with respect to ‘an abortion procured or attempted  by  medical  advice  for the purpose of saving the life of the mother.’ Similar statutes are in  existence  in  a majority  of  the  States.”

Then the ruling spells out the details of the plaintiff’s case.  On page 8 it says: 

“Roe  alleged  that  she  was  unmarried  and  pregnant;  that she wished to terminate her pregnancy by an abortion ‘performed by a competent, licensed physician, under safe,  clinical  conditions’;  that  she  was  unable to get a ‘legal’ abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal  abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy.”

Then the text begins a long dive into the legal issue of “standing”.  Legal “standing” describes who has the right to bring what causes to court.  A person found to lack “standing” for his/her case will be dismissed from court.  We’ll skip over this part.

The relevant sections begin again on page 17, where the court summarizes Roe’s case:  

“The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal ‘liberty’ embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.”

The word “penumbras” might be unfamiliar to the average person.  In this context it is the court’s way of referring to ideas which aren’t explicitly in the constitution, but which they believe are implied by the Constitution.  Or that they are logically entailed by other things which are explicitly in there.  

This is important because the court previously determined (in Griswold vs Connecticut) that one of these “penumbras” is the right to privacy.  And this right to privacy meant the government couldn’t ban contraception… for some reason.   

Ancient History:

In the second part of the decision, beginning on page 17, the court says it would be profitable to review historical opinions about abortion.  It’s not immediately clear why this is relevant or necessary, but either way – for the next 18 pages the justices put on their amateur historian hats and take us on a whirlwind tour.  They visit 8 groups and purport to tell us their attitudes toward abortion.

They are as follows:

Ancient Persians (18): Not cool with abortion.

Ancient Greeks and Romans (18):  Pretty OK with it.

Hippocratic Oath (18):  The most commonly received translation bans abortion.

"Common Law" (20): Prior to the point where the baby's motion could be sensed (known as "quickening"), abortion was allowed.  Afterward, scholars are mixed in their understanding of what the law held.

English Statutory Law (24): Before "quickening", it abortion was a misdemeanor.  After "quickening", it was punishable by death - unless it was done to save the mother's life.

American Law (26):  Prior to 20th century, abortions after "quickening" were banned.  Starting in the 20th century, most states banned it entirely - unless it was to save the mother's life.  The court notes that around 1/3 of the states had begun adopting less stringent laws.

The American Medical Association (29):  In 1857, the AMA adopted a position of complete opposition to abortion. This remained the case until 1967, when the AMA adopted a less absolute stance which allowed abortion in the case of rape and to avoid threats to the mother's "health".

The American Public Health Association (32):  Would make the ancient Romans blush with their enthusiasm for abortion.

The American Bar Association (34): I'm really not sure what the court was trying to say here.

As I said before, this is the longest section of the ruling.  Most of it is entirely irrelevant to the question before the court.  Namely;

"Does the Constitution permit the state of Texas to ban abortion?"

But there is one concept contained in this section which is worth your attention.  That is, the legal distinction in English and American law between killing a "quickened" and "non-quickened" fetus.  As I mentioned above, as soon as they could sense movement in the kid, killing him/her became severely punished.

If you had to guess why those laws punished killing a "quickened" fetus so severely, what'd be your guess? 

The obvious answer is that in the days before ultrasound, that's when you knew the baby was alive and kicken'.  So they considered killing a "quickened" fetus a form of homicide.

We'll return to that soon.


Questionable Motives:

At long last, on page 35 of 55, the court starts getting to the point.  It notes that there are three historical explanations for why anti-abortion laws exist:

1) To discourage sexual immorality:  The court notes that nobody is trying to defend the laws from this perspective.

2) For the safety of the woman: The court notes that prior to modern medical advances, abortion was a dangerous procedure.  So one explanation for banning abortion was to protect women from a harmful situation.  The court notes that this explanation is harder to maintain with abortion becoming safer.

3) To Protect Prenatal Life:  This would seem to be the most obvious one, but the court lists it last.  The court acknowledges that the state has a valid interest in this area... but then things start to go wrong.

The court calls attention to arguments which seen to diminish this motivation as a primary goal of anti-abortion laws.  And it shows some sympathy to this view by saying:

"There is some scholarly support for this view of original purpose."[page 38]

"But wait," I immediately thought, "If the purpose of those laws wasn't to preserve prenatal life, why was there so much emphasis on banning abortions done on 'quickened' fetuses?  What else could that mean?"

Then, as if to answer my question, the Court notes that the plaintiffs argued those distinctions only existed because aborting "quickened" babies was more dangerous for the mother. It had nothing to do with the life of the kid.

That argument should have been persuasive to no one.  It should have been laughed out of court.  And yet there it is, in the Roe v Wade decision on pages 38-39.


An Abrupt Finding:

Now we've arrive at the decision itself... and it comes quick.

• First, the court admits that the "right to privacy" isn't explicitly in the Constitution.  But it reminds us that it is in the "penumbras" - (the logical extensions) - of the Bill of Rights.  

• Then it says this right protects activities relating to marriage, procreation, and contraception.  

• Then it concludes the "penumbra" includes the right to abortion.  The end.

It happens that quick.  They reached that conclusion after just one paragraph of thought on page 40.  Here's the fateful words:  (page 41)

"This right of privacy []  is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.  

The detriment  that  the State would impose upon the pregnant woman by denying this choice altogether is  apparent.  Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future.  Psychological harm may be imminent.  Mental and physical health may be taxed by child care.   There is also the distress,  for  all  concerned,  associated  with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional  difficulties  and  continuing  stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily  will  consider  in  consultation."

Now, one thing to take note of here.  The court spells out a number of "health" issues which are put at risk in an environment where abortion is banned.  They include:

• Medical harm
• Psychological distress
• Misgivings associated with an unwanted child
• Family instability
• Stigma of unwanted motherhood

Keep that in mind for later.


Sudden Literalism:

Now the court begins shooting down objections to its finding.

The state of Texas attempted - based on modern biology - to argue that prenatal humans qualify as "persons" under the 14th Amendment.  The court admitted that the success of such an argument would scuttle Roe's cause: (page 44)

"The appellee and certain amici argue that the fetus is a 'person' within  the language and meaning of the Fourteenth Amendment. In support of this, they outline at length  and  in  detail  the  well-known  facts of fetal development.  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 in response, they suddenly shift gears.  A few pages earlier, they were willing to find new rights contained in the unwritten "penumbras" of the Constitution.  But now, faced with the question of whether a prenatal life counts as a legal "person", the members of the court become strict, literal constructionists: (Page 45-46)

"The Constitution does not define 'person' in so many words. [] But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.  

All this, together with our observation, supra, that throughout the major portion of the  19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn."

Alright.  There is so much wrong with this that one hardly knows where to begin.

First, is it reasonable to expect that the Constitution would make explicit mention of the pre-born?  Most of the Constitution concerns who can run for offices, whether titles of honor can be given, and the extradition of criminals.  That is to say, it's a document almost entirely about the duties of adults.  It doesn't make any specific mention of 1 year-olds either.

Second, for lack of any explicit data on whether the pre-born count... why does the court default to a negative answer?  Why not assume a neutral stance?  Then, faced with the data from natural biology, could they not see how the right to life, liberty, and property might be applied to humans at all stages of life?  Were there no further "penumbras" for them to search?

Third, they cite (as support for their conclusion) how the 19th century laws were less stringent than 20th century laws.  But as we saw, the 19th century laws weren't exactly lax.  Those laws banned abortion after "quickening", which was the beginning of human life to the best of their medical understanding.  The evidence from the 19th century points directly to recognition of the rights of the preborn.

Then again.... perhaps this is why they included the absurd argument about how banning abortion after "quickening" had nothing to do with protecting pre-natal life?


A Critical Footnote:  

There is a footnote on page 43-44 which I want to call attention to.  It's another argument the court uses against Texas' insistence that the Constitution should protect the preborn.  It accuses Texas' own law of being inconsistent with the arguments they were advancing.

It does so in three ways:

First, they ask why an exception should exist for the life of the mother:

"The  exception  contained for an abortion for the purpose of saving the life of the mother, is typical.  But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?"

Second, they point out that the woman who procures the abortion isn't charged as an accessory to murder:

"There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out that in Texas the woman is not a principal or an accomplice  with  respect  to  an  abortion  upon  her.   If the  fetus is a person, why is the woman not a principal or an accomplice?" 

Lastly, they point out the inconsistency of having a lesser penalty for abortion than murder:

"Further, the  penalty  for  criminal  abortion  specified  is significantly less than the maximum penalty for murder prescribed by the Texas Penal Code. If the fetus is a person, may the penalties be different?"

This footnote was very fascinating.

Normally people who are Pro-Life have little desire to see women punished when they seek an abortion.  But as we see in Roe vs. Wade, that humane impulse was actually used against the Pro-Life laws in Texas.

Does that mean if abortion bans are ever reinstated... that they'll have to treat women as accessories to murder in order to pass judicial review?  Will we have to go there?

Deliberate Ignorance:

Having failed in their attempt to convince the court that preborn children should be protected by the Constitution, Texas now uses a different tactic.  They note that whether they qualify as Constitutional "persons", these children are still human lives and States have the prerogative to protect them.

At this point the court throws up its hands and pleads ignorance.  It says: (pages 48-49)

"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.  It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question."

Then they list off groups of people with different views on when life begins.  They include: Ancient stoics, Jews, Protestants, Common Law, Catholics, and modern medical professionals.  All of these groups have different ideas about when life begins, so the court says, "Who the heck knows?"

Again, let's list the problems with this.


They Decide Either Way:

They acknowledge how a standard on the beginning of life would have implications for abortion.  What they don’t seem to appreciate is how that road goes in both directions.  Setting an abortion policy sets a standard for when the State acknowledges the presence (and value) of human life.

So if they didn't feel capable of making a pronouncement on the start of human life... they should have refused the case.  They should have said the court doesn't have enough data to decide the important question of the humanity of the preborn, and refused to rule.


Who Cares What the Religions Say?:

Who the heck cares what the Stoics, Jews, and Christians think about the genesis of human life?  This is a [scientific question].  According to the ruling, they didn't talk to any biologists on this question.

The only people they consulted who have anything of value to add to the question were the physicians.  Funny thing; apparently they supported the idea of life beginning at conception.  From page 49:

"As one brief amicus discloses, this is a view strongly held by many non Catholics as well, and by many physicians. 

But now check out their objection to the physicians' recommendations:

"Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a 'process' over time, rather than an event, and by new medical techniques such as menstrual extraction, the 'morning-after' pill, implantation of embryos, artificial insemination, and even artificial  wombs."

This is a staggering display of scientific illiteracy.  What on earth does emergency contraception, artificial insemination, or artificial wombs have to do with the start of human life?

And even if conception is a process, that is irrelevant to the abortion debate. By the time a woman seeks an abortion, conception has already completed.  Who cares if it takes 2 hours or 2 days?

Life Defining Decisions:

Having said previously that the origin of human life is too unclear to be known, they thus rule that the state of Texas (or any state) shouldn’t be permitted to adopt a standard for their territory: (page 50)

"In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake."

But I have to reiterate:  There is no way to answer the question on the legality of abortion which does not implicitly adopt a theory of life.  We'll see that soon.

Anyway, seeking to make a limiting principle in their decision, the court says it doesn't support unlimited abortion without any possible State-imposed inhibitions. On pages 43 and 51, they say:

"The right [to abortion], 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."

"With respect to the State's important  and legitimate interest in the health of the mother, the 'compelling' point, in the light of present medical knowledge, is at approximately the end of the first trimester."

So for the sake of the safety of the mother, the States can restrict abortion after 12 weeks.  But what about restricting abortion for the sake of the baby?  From page 51:

"With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb."

And there is your standard on the beginning of human life.  Or a "meaningful life" (whatever that means).

I can’t stress enough how hypocritical and contradictory this is.  Three pages prior, they said they were not competent to sort out these thorny issues on when a fetus counts as a life.  Then they said this ambiguity is why States can't impose a standard.  But then they established their own standard on the whole country anyway.  Namely, viability outside the womb.

OK, so does that mean states can ban abortion after viability?  Yes and no.  The court says the States can, but only if their ban includes exceptions to protect the mother’s “health”.  Not “life”, but “health”: (Pages 51-52)

"State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health  of  the mother."

But as we’ve seen above, “health” can include things as trivial as fearing social stigma.  So even if the court recognizes the viable fetus as a human life, that life is regarded as so cheap that it can be ended for the sake of avoiding embarrassment.

Hence, Roe vs Wade effectively legalized abortion for all 9 months of pregnancy.


To Recap:

In short, here's how the decision worked:

And that... is why for the first 9 months of my life it was legal to kill me.