Monday, October 15, 2007

Roe Unplugged.

I had an interesting experience in Constitutional Law last week, discussing Roe v. Wade, 410 U.S. 113 (1973). In the court's opinion, Justice Blackmun side-steps the question of when life begins by referring to the fetus as "the potentiality of life". My professor engaged me on this particular point. He asked, "when does that potential of life begin". I said, "I think it might begin when my buddy goes to a bar and buys a girl a drink." Meaning, of course, that the potential existed at that point for him to eventually impregnate his fellow drinker.

By reducing the meaning of "potentiality" to my absurd statement, I find a deep and shameful flaw in the Roe opinion. The judges know they are not the appropriate body to make the value judgment of when life begins (Justice Blackmun said as much), so they had to discuss a fetus as mere potential. "Potentiality" is implausibly open-ended and implicitly its own value judgment.

Sadly, I think the profundity of my point was lost in the humor. The professor's own point, that there is a "potentiality of life" when a man masturbates, was also lost on a classroom of apparently bright people enamored with a court claiming to be able to distinguish life from not-yet-life in spite of the particular democratic wills of particular democratic states.

I get the palpable sense from my professor and generally pro-choice classmates that Roe, as legal reasoning, is categorically disliked. At best, the advocates of abortion rights seem as fond of Roe as perhaps an average peaceable Iraqi is of a U.S. soldier patrolling his neighborhood these days -- they don't like the form of the protector, but they wouldn't give up the protection. The pro-choice affinity for Roe as law reminds me of Jack Nicholson in A Few Good Men: "You don't want the truth because deep down in places you don't talk about at parties, you want me on that wall, you need me on that wall... I would rather you just said thank you, and went on your way..." 'Never mind that the court is making an impermissible moral judgment contrary to the popular will of the people. We need to ensure unwanted children do not enter into this world.'

I am coming to believe that I have been wrong to place my hope in the very institution that gave us abortion rights to protect unborn children. The cartoon above is obtuse. Planned Parenthood v. Casey, 505 U.S. 833 sustained and reinforced Roe in 1992 on these lines: O'Connor, Kennedy, Souter, Stevens and Blackmun joining or concurring, and Rehnquist, White, Scalia, and Thomas dissenting. While Alito's vote will most likely be the opposite of O'Connor's, Ginsburg's appointment to replace White has been perhaps the most significant seat shift on this issue since 1973. Without Justice Kennedy experiencing a change of heart, today's Casey decision would still be 5-4 at best. As long as our elected officials only stop sitting on their hands for the length of time necessary to point their shameful fingers at the Supreme Court, we are culpable as a society for failing to protect the most innocent of victims with our laws.


Jim said...

"The judges know they are not the appropriate body to make the value judgment of when life begins (Justice Blackmun said as much), so they had to discuss a fetus as mere potential."

Yeah, the "potential life" language is awkward, but all the majority means is that "We don't know when life begins."

Given that they've imposed strict scrutiny, then the benefit of doubt goes to "liberty" rather than to "law."

But in doing so the Court did choose, knowing full well that "strict scrutiny" is strict in theory but fatal in fact.

If they actually didn't know, and recognized that they were not the appropriate institution to resolve the matter, then, as Rehnquist points out in the dissent, the law should have been reviewed under the rationality standard rather than under strict scrutiny.

"Roe" has been savaged even by liberal law professors. Everyone knows that its a preeminent case of judicial legislation.

Jonathan said...

There are few cases in constitutional history that deserve to have been dismissed as political questions more than Roe v. Wade. When Blackmun sidestepped the question of when life began, he also wrote that the individuals recognized as 'experts' on such decisions--ministers, rabbis, philosophers, and so on--could not agree among themselves about when life began.

It seems to me, then, that the task of the court, upon recognizing (1) that there is disagreement among the 'experts' on such questions and (2) that the court is also not the proper body to render a decision upon the question, ought to have demurred on the question and allowed it to be decided legislatively.

Instead, an activist court issued an opinion characterized by morally repugnant legal reasoning.

Thos said...

Prof. Jim,

Judicial legislation indeed - and then the legislation was changed by O'Connor in Casey when she dumped the trimester framework...

I wonder what you think of Jonathan's comments -- would rational basis have been the right approach, or instead finding the case non-justiciable under the political-question doctrine? I think I can grasp that you're both right. The court did improperly decide that the fetus is not a person (otherwise it would be one person's rights vs. another person's rights). Blackmun's weak efforts at textualism aside, this is where it seems that they answered the political question.

But then, once they made that offensive power-grab, Rehnquist's plea for a rational basis analysis seems to have merit. It's hard to imagine the myopia necessary to view Roe as liberty vs. law (or, legislative imposition on liberty). I guess I need to bear in mind how alluring is the view that all these "problems" for society and mothers and fathers, and mother's fathers can be solved by abortion. I'm so stuck in my view that the fetus has a liberty interest.

And finally, how would Blackmun's rationale work in a segregation case? What if Congress (go back a few decades for this hypo) had passed a law requiring whites to treat blacks equally, and the whites sued, claiming that their liberty interests were at stake when they had to treat blacks as "persons" and not as less-than-persons? It seems that he could say under his Roe rationale, "we don't have to decide if blacks are really "persons", but certainly under the original language of the Bill of Rights they weren't "persons", since slave ownership was explicitly allowed, so we'll apply strict scrutiny to this law requiring whites to treat blacks equally, and conclude it should be struck down because it is overbroad and creates a clear hardship to whites who now have to share society (buses, drinking fountains and the like) with blacks." Well, I'm not saying Blackmun was a racist, but it's hard to see the difference. If the court can decide that one group is non-person instead of a "discrete and insular minority", it seems they could do it to another (and then crucify the law under strict scrutiny). [Let me be clear to all that I hate racism, and use that example because of its obvious absurdity.]

I appreciate your and Jonathan's comments. Thank you for taking the time to contribute!

Peace in Christ Jesus,

Jim said...


The "political questions" doctrine narrowly applies to interbranch conflicts at the federal level.

The Court has been adament about that since the reapportionment cases in the early 60s. E.g., in Baker v. Carr the Court wrote: "[I]t is the relationship between the judiciary and the coordriante branches of the Federal Government, and not the federal judiciary's relationship to the States, which gives rise to the 'political question.'"

So the fact that a judge makes a political judgment in a case does not mean that the case within the political-questions doctrine.

I'd agree, though, with what I take to be Jonathan's larger point: that deciding which tier of review a case falls within is almost always requires a political judgment on the part of judges.

Under most traditional theories of judicial review, judges are called to defer to the political judgments of the legislature, rather than impose their own judgments through their judicial veto. So rationality review would be the appropriate standard.

That being said, I think that the use of strict scrutiny in Roe is a fairly straight-forward application of the holding in Griswold v. Conn, so if the justices were in doubt about whether the fetus is human life, then the benefit of the doubt goes to liberty rather than to the law.

(Of course, if, as I believe, the proposition that "a fetus is human life" is tautologically true, then there is no doubt to resolve in favor of liberty, even under strict scrutiny.)

So the political judgment that judges have to make is which tier of review to apply in the different cases. And answering that question in a "principled" fashion is a question that's tied the Court (and many scholars) up in knots for at least 70 years.

Jim said...

By the bye, "Jim" is just fine.

Thos said...


(I'll leave off the honorific title, but I am honored to have a real live Constitutional Law Professor who is also a Christian contribute his thoughts here.)

Thank you for clarifying the PQD point. I suppose if I dusted off my Con Law I notes and thought hard about it, that would have occurred to me.

I just read Scalia's dissent in Casey, in which he zinged the plurality for fabricating their "undue burden" test - in it he says something like 'at least in Roe, their use of strict scrutiny followed some precedent [e.g., Griswold]'.

It's hard for me to follow with any fervor the line of logic used past the point where Blackmun decides, by deciding not to decide, that the fetus is not a human, so not entitled to personhood. That that was the default position to which a judge using strict scrutiny to review a law escapes me.

It's hard to harbor love in my heart for these now-mostly-deceased justices. It's hard for me to walk past Thurgood Marshall's statue every day and not feel resentful at how he forsook the discrete and insular minority of preborn children. I suppose I need to work on having charity.

Peace in Christ,