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Roe v. Wade:Its Logic and Its Legacy

Francis J. Beckwith

Francis J. Beckwith is Associate

Professor of Church-State Studies, and

Associate Director of the J. M. Dawson

Institute for Church-State Studies, Baylor

University. Dr. Beckwith is a graduate of

Fordham Universit y (Ph.D.) and the

Washington University School of Law,

St. Louis (M.J.S.). His most recent book

is Law, Darwinism & Public Education:

The Establishment Clause and the Chal-

lenge of Intelligent Design (Rowman &

Littlefield, 2003).

“The care of human life and happiness, and not

their destruction, is the first and only legitimate

object of good government.”

(Thomas Jefferson)

“Anyone in America who writes these days

about abortion must take account of the land-

mark decision of the Supreme Court in Roe v.

Wade; and in estimating the ‘quality of mind’

manifested by the Court, he would have to

regard that profundity which stands near the

beginning of Justice Blackmun’s opinion for the

majority: ‘Pregnancy often comes more than

once to the same woman, and ... if man is to

survive, [pregnancy] will always be with us.’

One becomes aware instantly that one is in the

presence of no ordinary mind.”

(Hadley Arkes, 1986)

It is no exaggeration to say that no U. S.Supreme Court opinion has been moremisunderstood and its arguments moremisrepresented in the public square thanRoe v. Wade (1973).1 There seems to be awidespread perception that Roe was amoderate opinion that does not supportabortion on demand, i.e., unrestricted abor-tion for all nine months for virtually anyreason. Even a philosopher of such erudi-tion as Mortimer Adler did not seem tounderstand fully the legal implications ofRoe: “Mr. Justice Blackmun’s decision in thecase of Roe v. Wade invokes the right of pri-vacy, which is nothing but the freedom of an

adult woman to do as she pleases with her own

body in the first trimester of pregnancy.”2

This is not merely a theoretical issue. Ithas practical implications that bear on the

case pro-lifers may make in the publicsquare in attempting to sway their fellowcitizens. For example, in the 1990 pro-lifecampaign in Nevada to defeat an abortion-choice referendum, KLAS-TV (channel 8),a CBS affiliate, refused to air a commercialthat featured former University of Nevada,Las Vegas basketball star (and son of itsformer coach, Jerry Tarkanian), DannyTarkanian. In the commercial, Danny, alicensed attorney, claimed that currentNevada law permitted abortions for allnine months of pregnancy for reasons astrivial as sex-selection (i.e., a woman hasan abortion because the child is the“wrong” gender).3 KLAS managementclaimed that Tarkanian’s comments were“inflammatory” and “untrue,” despite thefact that his claims are well-documentedand supported by the scholarly literature4

(see, for example, the pre-1990 works citedin note 3). The station did air, however, anabortion-choice commercial in which a“typical” housewife says she supportsabortion-rights so that the abortion deci-sion is kept between “the woman, her phy-sician, and her family.” It never occurredto KLAS that this commercial may beinflammatory and untrue, especially inlight of two well-known legal facts aboutwhich anyone involved in the abortiondebate is more than remotely familiar: awoman may have an abortion performedon her by a physician she has known forfewer than thirty seconds, and her familyhas no legal right to forbid, permit, or beinformed about her abortion.5

In order to grasp fully the reasoning of

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Roe, its paucity as a piece of constitutionaljurisprudence, and the current state ofabortion law, we will look at three differ-ent but interrelated topics: (1) what theCourt actually concluded in Roe; (2) theCourt’s reasoning in Roe; and (3) how sub-sequent Court opinions, including Casey v.

Planned Parenthood (1992), have shaped thejurisprudence of abortion law.

What the Court ActuallyConcluded in Roe

The case of Roe v. Wade (1973) concernedJane Roe (a.k.a. Norma McCorvey), a resi-dent of Texas, who claimed to have becomepregnant as a result of a gang rape (whichwas found later to be a false charge yearsafter the Court had issued its opinion).6

According to the Texas law at the time(essentially unchanged since 1856), awoman can have an abortion only if it isnecessary to save her life. Because Roe’spregnancy was not life-threatening, shesued the state of Texas. In 1970, the unmar-ried Roe filed a class action suit in federaldistrict court in Dallas. The federal courtruled that the Texas law was unconsti-tutionally vague and overbroad andinfringed on a woman’s right to reproduc-tive freedom. The state of Texas appealedto the U.S. Supreme Court. After the casewas argued twice before the Court, itissued Roe v. Wade on January 22, 1973,holding that the Texas law was unconsti-tutional, and that not only must all statesincluding Texas permit abortions in casesof rape but in all other cases as well.

The public does not fully understand thescope of what the Court declared as a con-stitutional right on that fateful day in 1973.The current law in every state except Mis-souri and Pennsylvania (where very mod-est restrictions were allowed due to theCourt’s rulings in Webster v. Reproductive

Health Services [1989]7 and Casey v. Planned

Parenthood [1992]8) does not restrict awoman from procuring an abortion forpractically any reason she deems fit dur-ing the entire nine months of pregnancy.That may come as quite a shock to manyreaders, but that is in fact the state of thecurrent law.

In Roe Justice Harry Blackmun, whoauthored the Court’s opinion, dividedpregnancy into trimesters. He ruled thataside from procedural guidelines to ensurematernal health, a state has no right to re-strict abortion in the first six months ofpregnancy. Writes Blackmun:

A state criminal abortion statute ofthe current Texas type, that exceptsfrom criminality only a life-savingprocedure on behalf of the motherwithout regard to pregnancy stageand without recognition of the otherinterests involved, is violative of theDue Process Clause of the Four-teenth Amendment.(a) For the stage prior to approxi-mately the end of the first trimester,the abortion decision and its effec-tuation must be left to the medicaljudgment of the pregnant woman’sattending physician.(b) For the stage subsequent toapproximately the end of the first tri-mester, the State, in promoting itsinterest in the health of the mother,may, if it chooses, regulate the abor-tion procedure in ways that are rea-sonably related to maternal health.(c) For the stage subsequent toviability the State, in promoting itsinterest in the potentiality of humanlife, may, if it chooses, regulate, andeven proscribe, abortion exceptwhere necessary, in appropriatemedical judgment, for the preserva-tion of the life or health of themother.9

Thus a woman could have an abortionduring the first six months of pregnancyfor any reason she deems fit, e.g., un-planned pregnancy, gender-selection,convenience, or rape. Restrictions in the

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second trimester should be merely regula-tory in order to protect the pregnantwoman’s health. In the last trimester (afterfetal viability, the time at which the unborncan live outside the womb) the state has aright, although not an obligation, to restrictabortions to only those cases in which themother’s life or health is jeopardized,because after viability, according toBlackmun, the state’s interest in prenatallife becomes compelling. Roe, therefore,does not prevent a state from having unre-stricted abortion for the entire nine monthsof pregnancy if it so chooses.

Nevertheless, the Court explains that itwould be a mistake to think of the right toabortion as absolute.10 For the Court main-tained that it took into consideration thelegitimate state interests of both the healthof the pregnant woman and the prenatallife she carries. Thus, reproductive liberty,according to this reading of Roe, should beseen as a limited freedom establishedwithin the nexus of three parties: the preg-nant woman, the unborn, and the state. Thewoman’s liberty trumps both the value ofthe unborn and the interests of the stateexcept when the unborn reaches viability(and an abortion is unnecessary to preservethe life or health of the pregnant woman)and/or when the state has a compellingstate interest in regulating abortion beforeand after viability in order to make surethat the procedure is performed in accor-dance with accepted medical standards.Even though this is a fair reading of Roe’sreasoning, it seems to me that the premiseput in place by Justice Blackmun have notresulted in the sensible balance of interestshe claimed his opinion had reached. Rather,it has, in practice, resulted in abortion ondemand.

Because Justice Blackmun claimed thata state only has a compelling interest in

protecting prenatal life after that life isviable (which in 1973 was between 24 and28 weeks of gestation), and because theviability line is being pushed back in preg-nancy (now it is between 20 and 24 weeks)as a result of the increased technologicalsophistication of incubators and otherdevices and techniques, Justice Sandra DayO’Connor made the comment in her dis-sent in Akron v. Akron Center for Reproductive

Health, Inc. (1983) that Roe is on a “collisioncourse with itself.”11 In other words, ifviability is pushed back far enough, theright to abortion will vanish for all practi-cal purposes. That is, in principle a state’s“interest” in a viable fetus can extend backto conception. Furthermore, Blackmun’schoice of viability as the point at which thestate has a compelling interest in protect-ing prenatal life is based on a fallaciousargument, which I will assess below in mypresentation and critique of Planned Par-

enthood v. Casey.But there is a loophole to which abor-

tion-choice supporters may appeal in orderto avoid O’Connor’s “collision course.”Consider one state law written within theframework of Roe. Nevada restricts abor-tions after viability by permitting such afterthe 24th week of pregnancy only if “thereis a substantial risk that the continuance ofthe pregnancy would endanger the life ofthe patient or would gravely impair thephysical or mental health of the patient.”12

But this restriction is a restriction in nameonly. For the Supreme Court so broadlydefined health in Roe’s companion deci-sion, Doe v. Bolton (1973), that for all intentsand purposes Roe allows for abortion ondemand. In Bolton the court ruled thathealth must be taken in its broadest pos-sible medical context, and must be defined“in light of all factors—physical, emotional,psychological, familial, and the woman’s

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age—relevant to the well being of thepatient. All these factors relate to health.”13

Because all pregnancies have consequencesfor a woman’s emotional and family situ-ation, the court’s health provision has thepractical effect of legalizing abortion upuntil the time of birth if a woman can con-vince a physician that she needs the abor-tion to preserve her “emotional health.”This is why in 1983 the U.S. Senate Judi-ciary Committee, after much critical evalu-ation of the current law in light of theCourt’s opinions, confirmed this interpre-tation when it concluded that “no signifi-cant legal barriers of any kind whatsoeverexist today in the United States for awoman to obtain an abortion for any rea-son during any stage of her pregnancy.”14

Even former Chief Justice WarrenBurger, who originally sided with themajority in Roe because he was under theimpression that abortion after viabilitywould only occur if the mother’s physicallife and health were in imminent peril, con-cluded in his dissent in Thornburg v. Ameri-

can College of Obstetricians and Gynecologists

(1986) that Roe did, contrary to his ownearlier interpretation of the decision, sup-port abortion on demand: “We have appar-ently already passed the point at whichabortion is available merely on demand....The point at which these [State] interestsbecome ‘compelling’ under Roe is at viabil-ity of the fetus.... Today, however, the Courtabandons that standard and renders thesolemnly stated concerns of the 1973 Roe

opinion for the interests of the State’s mereshallow rhetoric.”15 Others had come to thesame conclusion much earlier than JusticeBurger.16

Moreover, it is not clear that when theCourt refers to viability as the time whenthe state has a compelling interest in pre-natal life that it is referring only to the

physical survival of the unborn apart fromher mother. Rather, it may be suggesting alargely philosophical notion of “meaning-ful life,”17 a determination that is exclu-sively in the hands of the pregnant woman.Although in Roe “meaningful life” seemedto mean a life that is physically indepen-dent of its mother (for more on this, seemy analysis of Casey below), the Courtmade the point in a later opinion, “[T]heremust be a potentiality of ‘meaningful life,’... not merely momentary survival.”18

The Court’s Reasoning in Roe:How It Found a Right to Abortion

Because the Court had already estab-lished a right to contraceptive use by mar-ried couples19 and then by single people20

based on the right of privacy,21 it wouldseem that abortion, because it is a meansof birth control, would be protectableunder this right of privacy. However, inorder to make this move, there were atleast two legal impediments that JusticeBlackmun had to eliminate: (1) Starting in

the 19th-century anti-abortion laws had been

on the books in virtually every U.S. state and

territory for the primary reason of protecting

the unborn from unjust killing. If, as JusticeDouglas asserts in Griswold, the “right ofprivacy [is] older than the Bill of Rights—older than our political parties, older thanour school system,”22 then the Court mustaccount for the proliferation of anti-abor-tion laws, whose constitutionality was notseriously challenged until the late 1960s,in a legal regime whose legislators and citi-zens passed these laws with apparently noinclination to believe that they were incon-sistent with a right of privacy “older thanthe Bill of Rights.” (2) The unborn is consti-

tutionally a person protectable under the

Fourteenth Amendment. After all, unlikecontraception, in which all the adult par-

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ticipants in the sexual act consent to its use,a successful abortion entails the killing ofa third party, a living organism, the unborn,who has already come into being.23 So, inorder to justify abortion the Court had toshow that the unborn is not a person underthe Fourteenth Amendment. If the Courthad good reasons to reject these two juris-prudential challenges, then it could estab-lish a right to abortion as a species of theright of privacy.

Justice Blackmun agreed with oppo-nents of abortion rights that anti-abortionlaws have been on the books in the U.S.for quite some time. However, accordingto Blackmun, the purpose of these laws,almost all of which were passed in the 19th-century, was not to protect prenatal life, butrather, to protect the pregnant woman froma dangerous medical procedure.24 Black-mun also argues that prior to the passageof these statutes, under the common law,abortion was permissible prior to quicken-ing and was at most a misdemeanor afterquickening.25 (Quickening refers to the“first recognizable movement of the fetusin utero, appearing usually from the 16thto the 18th week of pregnancy.”26). So,because abortion is now a relatively safeprocedure, then there is no longer a reasonfor prohibiting abortion.27 Consequently,given the right of privacy, and given theabortion liberty at common law, there is aconstitutional right to abortion.

The history of abortion figures promi-nently in the Court’s opinion in Roe.28 Jus-tice Blackmun, in 23 pages, takes the readeron a historical excursion through ancientattitudes (including the Greeks andRomans), the Hippocratic Oath, the com-mon law, the English statutory law, theAmerican law, and the positions of theAmerican Medical Association (AMA), theAmerican Public Health Association

(APHA), and the American Bar Associa-tion (ABA). The purpose for this history isclear: if abortion’s prohibition is onlyrecent, and primarily for the purpose ofprotecting the pregnant woman from dan-gerous surgery, then the Court would notbe creating a new right out of whole clothif it affirms a right to abortion. However,only the history of common law is relevantto assessing the constitutionality of thisright, because, as Blackmun himselfadmits, “it was not until after the WarBetween the States that legislation begangenerally to replace the common law,”29

even though, as Joseph W. Dellapennapoints out, Justice Blackmun’s historicalchronology is “simply wrong,” for twenty-six of thirty-six states had already bannedabortion by the time the Civil War hadended.30 Nevertheless, when statutes didnot address a criminal wrong, common lawwas the authoritative resource from whichjuries, judges, and justices, found the prin-ciples from which, and by which, theyissued judgments.

However, since 1973 the overwhelmingconsensus of scholarship has shown thatthe Court’s history, especially its interpre-tation of common law, is almost entirelymistaken. Justice Blackmun’s history(excluding his discussion of contemporaryprofessional groups: AMA, APHA, andABA) is so flawed that it has inspired theproduction of scores of scholarly works,over the last quarter of the 20th-century,that are nearly unanimous in concludingthat Justice Blackmun’s “history” isuntrustworthy and essentially worthless.31

However, for our modest purposes here,we will assess the two aspects of theCourt’s history that are the most central,and to which I alluded above: (1) the pur-pose of 19th-century anti-abortion statutes,and (2) the unborn’s status as a Fourteenth

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Amendment person.

Were Anti-Abortion Laws Meant toProtect the Unborn?

Blackmun was wrong about the pri-mary purpose of the anti-abortion laws.Although protecting the pregnant womanwas an important though secondary pur-pose of these statutes,32 there is no doubtthat their primary purpose was to protectthe unborn from harm. In what is perhapsthe most definitive scholarly article on thissubject, law professor James S. Wither-spoon conclusively shows that this was infact the case.33 After an extensive analysisof the 19th-century statutes, their legisla-tive histories, and the political climate inwhich they were passed, Witherspoon con-cludes:

That the primary purpose of thenineteenth-century anti-abortionstatutes was to protect the lives ofunborn children is clearly shown bythe terms of the statutes themselves.This primary purpose, or legislativerecognition of the personhood of theunborn child, or both, are mani-fested, in the following elements ofthese statutes, taken individuallyand collectively: (1) the provision ofan increased range of punishmentfor abortion if it were proven that theattempt caused the death of thechild; (2) the provision of the samerange of punishment for attemptedabortions killing the unborn childas for attempted abortions killingthe mother; (3) the designation ofattempted abortion and other actskilling the unborn child as “man-slaughter”; (4) the prohibition of allabortions except those necessary tosave the life of the mother; (5) thereference to the fetus as a “child”; (6)the use of the term “person” in ref-erence to the unborn child; (7) thecategorization of abortion withhomicide and related offenses andoffenses against born children;(8) the severity of punishmentsassessed for abortions; (9) the pro-vision that attempted abortion

killing the mother is only man-slaughter or a felony rather thanmurder as at common law; (10) therequirement that the woman onwhom the abortion is attempted bepregnant; (11) the requirement thatabortion be attempted with intent toproduce abortion or to “destroy thechild”; and (12) the incrimination ofthe woman’s participation in herown abortion. Legislative recogni-tion of the personhood of the unbornchild is also shown by the legislativehistory of these statutes.

In short, the Supreme Court’sanalysis in Roe v. Wade of thedevelopment, purposes, and theunderstandings underlying thenineteenth-century anti-abortionstatutes, was fundamentally errone-ous. That analysis can provide nosupport whatsoever for the Court’sconclusions that the unborn childrenare not “persons” within the mean-ing of the fourteenth amendment,and that states do not otherwisehave a “compelling interest” in pro-tecting their lives by prohibitingabortion.34

The primary reason for Justice Black-mun’s historical mistake, according tomany scholars, is his almost total relianceon two articles by Professor Cyril Means,who was an attorney for the NationalAssociation for the Repeal of AbortionLaws (NARAL).35 Since 1973, however,Means’s work has come under devastat-ing criticism, and for that reason is nolonger considered an authoritative render-ing of abortion law,36 though once in awhile it is cited positively by authors whoought to know better.37

It is interesting to note that as biologicalknowledge of both human developmentand the unborn’s nature began to increase,the laws prohibiting abortion became morerestrictive. Justice Blackmun was correctwhen he pointed out that at common lawpre-quickening abortion “was not anindictable offense,”38 for it was thought thatprior to quickening the unborn was not

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animated or infused with a soul.39 But thisis an erroneous belief based on primitiveembryology and outdated biology. Peopleindeed believed that prior to quickeningthere was no life and thus no soul, but theywere mistaken, just as they were mistakenabout Ptolemaic astronomy, the divineright of kings, and white supremacy, noneof which seems to be an acceptable belieftoday even though each is of more ancientorigin than its widely-accepted counter-parts of heliocentricity, constitutionaldemocracy, and human equality.40 As biol-ogy acquired more facts about humandevelopment, quickening began to bedismissed as an arbitrary, and irrelevant,criterion by which to distinguish betweenprotectable and unprotectable human life.“When better knowledge was acquired inthe nineteenth century,” writes StephenKrason, “laws began to be enacted prohib-iting abortion at every stage of preg-nancy.”41 Legal scholar Victor Rosenblumexplains:

Only in the second quarter of thenineteenth century did biologicalresearch advance to the extent ofunderstanding the actual mecha-nism of development. The nine-teenth century saw a gradual butprofoundly influential revolution inthe scientific understanding of thebeginning of individual mammalianlife. Although sperm had been dis-covered in 1677, the mammalian eggwas not identified until 1827. Thecell was first recognized as the struc-tural unit of organisms in 1839, andthe egg and sperm were recognizedas cells in the next two decades.These developments were broughtto the attention of the American statelegislatures and public by those pro-fessionals most familiar with theirunfolding import—physicians. Itwas the new research finding whichpersuaded doctors that the old“quickening” distinction embodiedin the common and some statutorylaw was unscientific and indefen-sible.42

Legal scholar and theologian JohnWarwick Montgomery points out thatwhen the common law and Americanstatutory law employed the quickeningcriterion “they were just identifying thefirst evidence of life they could conclu-sively detect.... They were saying that assoon as you had life, there must be protec-tion. Now we know that life starts at themoment of conception with nothingsuperadded.”43 Witherspoon writes:

Clearly, the quickening doctrine wasnot based on an absurd belief that aliving fetus is worthy of protectionby virtue of its capacity for move-ment or its mother’s perception ofsuch movement. The occurrence ofquickening was deemed significantonly because it showed that the fetuswas alive, and because it was aliveand human, it was protected by thecriminal law. This solution wasdeemed acceptable as long as thebelief persisted that the fetus was notalive until it began to move, a beliefthat would be refuted in the earlynineteenth century.44

One could say, therefore, that the quick-ening criterion, prior to the discoveries ofmodern biology, was employed as an evi-dential criterion so that the law may know

that a human life existed, for one could notbe prosecuted for performing an abortionif the being violently removed from thewomb was not alive to begin with.

Is the Unborn a Person under theFourteenth Amendment?

The Fourteenth Amendment becamepart of the U.S. Constitution in 1868. It waspassed for the purpose of protecting U. S.citizens, including recently freed slaves,from having their rights violated by localand state governments. The portion of theamendment germane to our study reads:

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All persons born or naturalized inthe United States, and subject to thejurisdiction thereof, are citizens ofthe United States and of the statewherein they reside. No State shallmake or enforce any law which shallabridge the privileges or immunitiesof citizens of the United States; norshall any State deprive any personof life, liberty, or property, withoutdue process of law; nor deny anyperson within its jurisdiction theequal protection of the laws.

There are two concerns for which Jus-tice Blackmun conscripts the FourteenthAmendment to make his argument. First,he argues that the right of privacy is a fun-damental liberty protected by the amend-ment, and that the right to abortion is aspecies of the right of privacy.45 Second, heargues that the unborn is not a personunder the Fourteenth Amendment.Because the first depends on the second,and Blackmun admits as much,46 my cri-tique will focus exclusively on the latter useof the Fourteenth Amendment in Black-mun’s analysis.

Justice Blackmun offers three reasons incombination for his conclusion that theunborn are not Fourteenth Amendmentpersons. (1) He maintains that “the Con-stitution does not define ‘person’ in somany words,” and goes on to list all theplaces in the Constitution in which theword “person” is mentioned includingthe Fourteenth Amendment (sections 1, 2,and 3), “the listing of qualifications forRepresentatives and Senators,... the Appor-tionment Clause, ... the Migration andImportation provision, ... the EmolumentClause, ... the Electors provision, ... thesuperseded cl. 3, ... the provision outliningqualifications for President, ... the Extradi-tion provisions, ... the superseded FugitiveSlave Clause 3[,] ... and ... the Fifth, Twelfth,and Twenty-second Amendments.”47

According to Blackmun, “in nearly all these

instances, the use of the word is such thatit has application postnatally” with no“possible prenatal application.”48 (2) Texascould not cite one case in which a courtheld that an unborn human being is a per-son under the Fourteenth Amendment.49

(3) Throughout most of the 19th-centuryabortion was practiced with fewer legalrestrictions than in 1972. Based on thesethree reasons the Court was persuaded that“the word ‘person,’ as used in the Four-teenth Amendment does not include theunborn.”50 Each reason is seriously flawed.

(1) In citing the constitutional provisionsthat apply to postnatal human beings, Jus-tice Blackmun begs the question. For noneof the provisions define the meaning of“person,” and thus do not exclude the un-born. Rather, with the exceptions of theFugitive Slave Clause (Art. IV, Sec. 2, Cl. 3)and the Migration and Importation provi-sion (Art. I, Sec. 9, Cl. 1), both of which wereeliminated by the Thirteenth and Four-teenth Amendments, the constitutionalprovisions Justice Blackmun cites concernmatters that apply to already existing persons.For example, the Fourteenth Amendmentdefines citizens as “all persons born or natu-ralized in the United States, and subject tothe jurisdiction thereof,” but it does notdefine persons (though it seems to be say-ing that birth is a state that persons undergorather than an event that makes them per-sons, and thus the unborn are persons whoshift from prenatal to postnatal when theyundergo birth).51 The reference to the quali-fications of Congressmen (Art. I, Sec. 2, Cl.2; Art. I, Sec. 3, Cl. 3) tells us that a senatormust be at least thirty years old and a rep-resentative at least twenty-five, but clearlythe court cannot be saying that because thefetus cannot hold these offices that he orshe is not a person (for this would meanthat twenty-year olds are not persons

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either). To cite one more example, theApportionment Clause (Art. I, Sec. 2, Cl.3) instructs the government on who tocount in the census to determine every tenyears the reapportionment to states of seatsin the House of Representatives. Althoughthe clause excludes the unborn from thecensus, it also excludes non-taxed Indiansand declares black slaves as three-fifth’s aperson, even though Indians and blackslaves are in fact persons. There were, ofcourse, important practical reasons why agovernment may exclude the unborn fromthe census: it is extremely difficult andhighly inefficient to count unborn personsbecause we cannot see them and some ofthem die before birth without the motherever being aware that she was pregnant.Also, as Krason notes, at the time of theAmerican Founding, “because of the highmortality rate then, it was very uncertainif a child would even be born alive.” More-over, “it was not yet known that the childfrom conception is a separate, distincthuman organism.”52

(2) Although it is true that Texas did notcite a case that held that the unborn is aFourteenth Amendment person, there wasat least one federal court case that did issuesuch a holding. That case, Steinberg v. Brown

(1970),53 ironically, was cited by the Courtin Roe,54 but for some reason JusticeBlackmun failed to mention that the fed-eral court in Steinberg provided the follow-ing analysis:

... [C]ontraception, which is dealtwith in Griswold, is concerned withpreventing the creation of a new andindependent life. The right andpower of a man or a woman todetermine whether or not to partici-pate in this process of creation isclearly a private and personal onewith which the law cannot andshould not interfere.

It seems clear, however, that the

legal conclusion in Griswold as to therights of individuals to determinewithout governmental interferencewhether or not to enter into theprocess of procreation cannot beextended to cover those situationswherein, voluntarily or involuntarily,the preliminaries have ended, and anew life has begun. Once human lifehas commenced, the constitutionalprotections found in the Fifth andFourteenth Amendments imposeupon the state the duty of safeguard-ing it.55

What the Court in Steinberg is suggest-ing should be uncontroversial: a legalprinciple has universal application. So, forexample, if a statute that forbids burglarybecame law at a time when no computersexisted, it would not follow that the prohi-bition against burglary does not apply tocomputers, that one is free to burgle com-puters from the homes of one’s neighborssince the “original intent” of the statute’sframers did not include computers. Whatmatters is whether the entity stolen is prop-

erty, that it is a thing that can be owned,not whether it is a particular thing (in thiscase, a computer) that the authors of theanti-burglary statute knew or did not knowto be property at the time of its passage. Toemploy another analogy, the religionclauses of the First Amendment apply toreligious believers whose faiths came to beafter the Constitution was ratified: a Baha’iis protected by the First Amendment eventhough the Baha’i Faith did not exist in1789.56 Therefore, if the unborn is a person,the Fourteenth Amendment is meant toprotect him or her even if the authors ofthe Fourteenth Amendment did not havethe unborn in mind.57 As we shall seebelow, Texas presented this premise as partof its case for the unborn’s humanity. TheCourt, ironically, accepted this premise, butrefused to fairly assess the argumentoffered by Texas, settling instead for tak-

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ing “no position” on the status of theunborn.

(3) Blackmun’s third reason is mislead-ing. For, as we saw in our analysis of the19th-century anti-abortion laws, state gov-ernments grasped the inadequacy of thecommon law’s quickening criterion whenthey became aware of the knowledge thatscience had acquired about the nature ofprenatal human life. Consequently, by theend of the 19th-century abortion was pro-hibited throughout pregnancy. And, as wesaw, the primary purpose of these statuteswas to protect prenatal human life. More-over, some scholars have offered compel-ling reasons to think that at the times ofthe passage of the Constitution (1789) andthe Fourteenth Amendment (1868) com-mon understanding held that the unbornis a person (at least after quickening), and/or at least that a state or the federal gov-ernment may legislate in such a way so asto place the unborn (even before quicken-ing) under the protections of the law with-out violating the Constitution.58

The state of Texas suggested, as theSteinberg court held, that the unborn isprotected by the Fourteenth Amendmentbecause it is in fact a person. That is, evenif Justice Blackmun was correct that theunborn has never been considered a fullperson under the law, Texas argued thatthe evidence for the unborn’s humanityrequires that the Court in the present treatthe unborn as a Fourteenth Amendmentperson. For example, if the Earth were vis-ited by members of an alien race, such asthe Vulcans of Star Trek lore, it would seemcorrect to say that these aliens would haveFourteenth Amendment rights, eventhough they are not homo sapiens. Theywould have these rights because theywould be beings whose natures have prop-erties (e.g., the capacity for moral choice)

identically possessed by the sorts of beingsthe Fourteenth Amendment was intendedto protect.

Confronting, though not disputing,Texas’s evidence for the unborn’s human-ity, Justice Blackmun replied: “We need notresolve the difficult question of when lifebegins. When those trained in the respec-tive disciplines of medicine, philosophy,and theology are unable to arrive at anyconsensus, the judiciary, at this point in thedevelopment of man’s knowledge, is notin a position to speculate”59 Hence, the stateshould not take one theory of life and forcethose who do not agree with that theory tosubscribe to it, which is the reason whyBlackmun writes in Roe, “In view of all this,we do not agree that, by adopting onetheory of life, Texas may override the rightsof the pregnant woman that are at stake.”60

Thus for the pro-life advocate to proposethat non-pro-life women should be forbid-den from having abortions, on the basisthat individual humanity begins at concep-tion or at least sometime before birth, isclearly a violation of the right of privacy ofnon-pro-life women.

But the problem with this reasoning isthat it simply cannot deliver on what itpromises. For to claim, as Justice Blackmundoes, that the Court should not proposeone theory of life over another, and that thedecision to abort should be left exclusivelyto the discretion of each pregnant woman,is to propose a theory of life that hardlyhas a clear consensus. For it has all theearmarks of a theory of life that morallysegregates the unborn from full-fledgedmembership in the human community, forit in practice excludes the unborn from con-stitutional protection. Although verballythe Court denied taking sides on the issueof when life begins, part of the theoreticalgrounding of its legal opinion, whether it

14

admits to it or not, is that the unborn inthis society is not a human person worthyof protection. Thus, the Court actually didtake sides on the question of when lifebegins. It concluded that the unborn is nota human person, because the procedurepermitted in Roe, abortion, is somethingthat the Court itself admits it would nothave ruled a fundamental right if it wereconclusively proven that the unborn is ahuman person: “If the suggestion ofpersonhood [of the unborn] is established,the appellant’s case, of course, collapses,for the fetus’ right to life is then guaran-teed specifically by the [FourteenthAmendment].”61

But if we are to accept the SupremeCourt’s holding in Roe, and agree with Jus-tice Blackmun that the right to abortion iscontingent upon the status of the unborn,then the allegedly disputed fact about life’sbeginning means that the right to abortionis disputed as well. For a conclusion’s sup-port—in this case, “abortion is a fundamen-tal right”— is only as good as the veracityof its most important premise—in this case,“the unborn is not fully human.” So, theCourt’s admission that abortion-choice isbased on a widely disputed fact, far fromestablishing a right to abortion, entails thatit not only does not know when life begins,but it does not know when if ever the rightto abortion begins. Consequently, theCourt’s admitted ignorance of when lifebegins undermines the right to abortion.

Justice Blackmun’s argument is flawedin another peculiar way, a way that actu-ally provides a compelling reason to pro-

hibit abortion, for, according to the logic ofBlackmun’s argument, an abortion may

result in the death of a human entity whohas a full right to life. When claiming thatexperts disagree on when life begins, Jus-tice Blackmun seems to be implying that

the different positions on life’s beginningall have able defenders, persuasive argu-ments, and passionate advocates, but nonereally wins the day. To put it another way,the issue of the unborn’s full humanity isup for grabs; all positions are in some senseequal, none is better than any other. But ifthis is the case, then it is safe to say that theodds of the unborn being fully human are50/50. Given these odds, it would seemthat society has a moral obligation to erron the side of life, and therefore, to legallyprohibit virtually all abortions. After all, ifone kills another being without knowingwhether that being is a human being witha full right to life, and if one has reason-able, though disputed, grounds (asBlackmun admits) to believe that the beingin question is fully human, such an actionwould constitute a willful and reckless dis-regard for others, even if one later discov-ered that the being was not fully human.

Consider this illustration. Imagine thepolice are able to identify someone as amurderer with only one piece of evidence:his DNA matches the DNA of the geneticmaterial found on the victim. The policesubsequently arrest him, and he is con-victed and sentenced to death. Suppose,however, that it is discovered severalmonths later that the murderer has anidentical twin brother, who obviously hasthe same DNA. This means that there is a50/50 chance that the man on death row isthe murderer. Would the state be justifiedin executing this man? Surely not, for thereis a 50/50 chance of executing an innocentperson. Consequently, if it is wrong to killthe man on death row, it is then wrong tokill the unborn when the arguments for itsfull humanity are just as reasonable as thearguments against it.

15

After RoeFrom 1973 to 1989 the Supreme Court

struck down every state attempt to restrictan adult woman’s access to abortion.62 TheU. S. Congress tried, and failed, to pass aHuman Life Bill (1981) in order to protectthe unborn by means of ordinary legisla-tion, and later it failed to pass a HumanLife Amendment (1983) to the U. S. Con-stitution. Although the Court upheld Con-gress’ ban on federal funding of abortionexcept to save the life of the mother,63 itnever wavered on Roe. Given these politi-cal and legal realities, prolifers put theirhopes in the Supreme Court appointees oftwo prolife presidents, Ronald Reagan(1981-1989) and George H. W. Bush (1989-1993), to help overturn Roe. BetweenReagan and Bush, they would appoint fivejustices to the Court (Sandra Day O’Con-nor, Antonin Scalia, Anthony Kennedy,Clarence Thomas, and David Souter) who,prolifers mistakenly thought, all shared thejudicial philosophies of the presidents whoappointed them. Ironically, it would bethree of those justices—O’Connor, Ken-nedy, and Souter—who would author theCourt’s opinion in Casey v. Planned Parent-

hood (1992) and uphold Roe. And two ofthem—O’Connor and Souter—would goeven further, joining three of their breth-ren in Stenberg v. Carhart (2000) in impart-ing the blessings of our Constitution onthat gruesome procedure, partial-birthabortion.

Nevertheless, three years before Casey,the Court seemed to be moving toward arejection of Roe. Many prolifers readWebster v. Reproductive Health Services

(1989)64 as a sign that the Court was pre-paring to dismantle the regime of Roe. InWebster the Court reversed a lower-courtdecision and upheld several provisions ofa Missouri statute that would not have sur-

vived constitutional muster in earlier days.First, the Court upheld the statute’s pre-amble, which states that “‘[t]he life of eachhuman being begins at conception,’ andthat ‘[u]nborn children have protectableinterest in life, health, and well-being.’”65

Furthermore, it requires that underMissouri’s laws the unborn should betreated as full persons who possess “allrights, privileges, immunities available toother persons, citizens, and residents of thestate,”66 contingent upon the U. S. Consti-tution and prior Supreme Court opinions.Because these precedents would includeRoe, the statute poses no threat to theabortion liberty.

Second, the Webster Court upheld theportion of the Missouri statute that forbadethe use of government facilities, funds, andemployees in performing and counselingfor abortions except if the procedure is nec-essary to save the life of the mother.

Third, the Court upheld the statute’sprovision that mandates that

[b]efore a physician performs anabortion on a woman he has reasonto believe is carrying an unbornchild of twenty or more weeks ges-tational age, the physician shall firstdetermine if the unborn child isviable by using and exercising thatdegree of care, skill, and proficiencycommonly exercised by the ordi-narily skillful, careful, and prudentphysician engaged in similar prac-tice under the same or similar con-ditions.67

In order to assess properly the unborn’sviability, the statute requires that the phy-sician employ procedures as are necessaryand enter the findings of these proceduresin the mother’s medical record.68 In pass-ing this statute, Missouri’s legislature tookseriously Roe’s viability marker—that at thetime of viability the state has a compellinginterest in protecting unborn life. This is

16

why the Court, in Webster, correctly con-cluded that “[t]he Missouri testing require-ment here is reasonably designed to ensurethat abortions are not performed where thefetus is viable—an end which all concedeis legitimate—and that is sufficient to sus-tain its constitutionality.”69

Webster, however, modified Roe in atleast two significant ways: it rejected bothRoe’s trimester breakdown and as well asits claim that the state’s interest in prenatallife becomes compelling only at viability:“[T]he rigid Roe framework is hardly con-sistent with the notion of a Constitutioncast in general terms, as ours is, and usu-ally speaking in general principles, as oursdoes. The key elements of the Roe frame-work—trimesters and viability—are notfound in the text of the Constitution or inany place else one would expect to find aconstitutional principle.”70 According to theCourt, “we do not see why the State’sinterest in protecting potential human lifeshould come into existence only at thepoint of viability, and that there shouldtherefore be a rigid line allowing stateregulation after viability but prohibiting itbefore viability.”71 Although Webster

chipped away at Roe, it did not overturn it.In Planned Parenthood v. Casey (1992) the

Court was asked to consider the constitu-tionality of five provisions of the Pennsyl-vania Abortion Control Act of 1982, whichthe state amended in 1988 and 1989.72 TheCourt upheld as constitutional four of thefive provisions, rejecting the third one(which required spousal notification for anabortion) based on what it calls the undue

burden standard, which the Court definedin the following way: “A finding of anundue burden is a shorthand for the con-clusion that a state regulation has the pur-pose or effect of placing a substantialobstacle in the path of a woman seeking

an abortion of a nonviable fetus.”73 Theundue burden standard is, according tomost observers, a departure from Roe andits progeny, which required that any staterestrictions on abortion be subject to strictscrutiny. That is, in order to be valid, anyrestrictions on access to abortion must beessential to meeting a compelling stateinterest. For example, laws that forbid yell-ing “fire” in a crowded theater pass strictscrutiny and thus do not violate the FirstAmendment right to freedom of expres-sion. The Casey Court, nevertheless,claimed to be more consistent with thespirit and letter of Roe than the interpreta-tions and applications of Roe’s principlesin subsequent Court opinions.74 But theCasey Court, by subscribing to the undueburden standard, held that a state mayrestrict abortion by passing laws that maynot withstand strict scrutiny but neverthe-less do not result in an undue burden forthe pregnant woman. For example, theCourt upheld as constitutional two pro-visions in the Pennsylvania statute—a24-hour waiting-period requirement andan informed-consent requirement (i.e., thewoman must be provided the facts of fetaldevelopment, risks of abortion and child-birth, and information about abortionalternatives)—that would have most likelynot survived constitutional muster with theCourt’s pre-Webster composition.75

Although the Casey Court upheld Roe

as a precedent, the plurality opinion,authored by three Reagan-Bush appoin-tees, O’Connor, Kennedy, and Souter,rejected two aspects of Roe: (1) its require-ment that restrictions be subject to strictscrutiny; and (2) its trimester framework(which Webster had already discarded). Thetrimester framework, according to theCourt, was too rigid as well as unneces-sary to protect a woman’s right to abor-

17

tion.76 However, the Casey Court reaffirmedviability as the time at which the state hasa compelling interest in protecting prena-tal life, though it seemed to provide a moreobjective definition than did the Roe Court(which, as we saw above, included thenebulous notion of “meaningful life”),despite the fact that it claimed to derive itsdefinition from Roe: “[V]iability, as wenoted in Roe, is the time at which there is arealistic possibility of maintaining andnourishing a life outside the womb.”77

At this point I want to look critically atthe Court’s viability criterion and thearguments it has presented for it in bothRoe and Casey. In Roe Justice Blackmunwrote: “With respect to the State’s impor-tant and legitimate interest in potential life,the ‘compelling’ point is at viability. Thisis so because the fetus presumably has thecapability of meaningful life outside themother’s womb. State regulation protec-tive of fetal life after viability thus has bothlogical and biological justification.”78

Assuming that Justice Blackmun isusing “meaningful life” to mean “indepen-dent life,”79 he commits either one of twofallacies, depending on how he definesindependent life. If he means by indepen-dent life a being that does not require thephysical resources of another particularbeing in order for it to survive, e.g., a viablefetus, then Blackmun’s argument amountsto a vicious circle, for in that case he isarguing that viability is justified as the timeat which the state’s interest in prenatal lifebecomes compelling because at that timethe fetus is an independent life, i.e., viable.However, if Blackmun means by indepen-dent life a being that is a separate anddistinct being even if it does require thephysical resources of another particularbeing in order for it to survive, e.g., one oftwo conjoined twins who share vital

organs, then the unborn has independentlife from the moment of conception andviability is merely the time at which it neednot physically depend on its mother inorder for it to survive. That is, undergoingan accidental change from dependent toindependent does not change the identityof the being undergoing the change. Chris-topher Reeves did not become less of abeing, or cease to be Christopher Reeves,merely because a tragic accident left himdependent on others for his very survival.The “he” that underwent that changeremained the same “he.” Consequently,changing from non-viable to viable or vice-versa does not impart to, or remove from,a being any property or properties thatwould change that being’s identity. In fact,when Blackmun claims that the unbornundergoes change—goes from non-viableto viable—he is implying that the unbornis in fact a being distinct from, thoughchanging its dependence in relation to, itsmother. Blackmun seems to be confusingphysical independence with ontological

independence; he mistakenly argues fromthe fact of the pre-viable unborn’s lack ofindependence from its mother that it is notan independent being, a “meaningfullife.”80 “The Court discovered,” writesHadley Arkes, “that novel doctrines couldbe wrought by reinventing old fallacies.”81

The Casey Court’s defense of the viabil-ity criterion offers two reasons. First, theCourt appeals to stare decisis, the judicialpractice of giving great deference to prece-dents. But because the precedent to whichthe Court appealed, Roe, relies on fallaciousreasoning to ground the viability criterionand is thus a precedent that is not justified,this first reason has no merit. But that doesnot stop the Court from offering as a secondreason the reasoning employed by JusticeBlackmun in Roe to defend the viability

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criterion. This is a peculiar strategy ofargument, for if precedent, stare decisis, issufficient, why also appeal to the reasoning

for that precedent? Could the reasoningfor the precedent be flawed and the prece-dent itself still be employed to “justify” asubsequent legal opinion? Or could a pre-cedent be justifiably rejected in an appli-cable case even though the precedent isgrounded in impeccable reasoning? In anyevent, the Court’s second reason is anargument that contains, along with a con-clusion, its definition of viability (which Ihave already quoted above) as the argu-ment’s premise: “[V]iability, as we notedin Roe, is the time at which there is a realis-tic possibility of maintaining and nourish-ing a life outside the womb, so that theindependent existence of the second lifecan in reason and fairness be the object ofstate protection that now overrides therights of the woman.”82 This argument isas fallacious in Casey as it was in Roe. TheCourt first defines viability and then fromthat premise of biological fact draws thenormative conclusion that it is only fair andreasonable that after viability the State hasa right to protect the unborn. If you didnot know that this was from a SupremeCourt opinion, you might have attributedit to a Monty Python skit (“that’s not anargument; it’s mere contradiction”) or abad freshman paper in Critical Thinkingor even Susan Sarandon. But, it is, sadly, aproduct of judicial “reasoning,” though itis neither judicious nor reasoned. Thepremise—the biological fact of fetalnonviability through roughly the first sixmonths pregnancy—can not possibly pro-vide sufficient warrant for the conclusionthat the Court is trying to draw: it is fairand just, and required by our Constitution,for the government to permit, with virtu-ally no restrictions, the unborn’s mother to

kill it before it is viable. In order for theCourt to make its argument valid, it wouldhave to add to its factual premise the nor-mative premise: whenever a human beingcannot live on its own because it uniquelydepends on another human being for itsphysical existence, it is permissible for thesecond human being to kill the first in orderto rid the second of this burden. But if itwere to add that premise, the argument,though now valid, would contain a prem-ise even more controversial than the abor-tion right it is attempting to justify, and forthat reason would require a premise orpremises to justify it.

The Casey Court also ignored the schol-arly criticisms of Roe’s justification of theabortion right. To review some of what wecovered above: (1) The key premises of Jus-tice Blackmun’s case—e.g., abortion was acommon law liberty, the primary purposeof 19th-century abortion law was to pro-tect women from dangerous operations—have been soundly refuted in the scholarlyliterature; (2) His case against the unborn’sstatus as a Fourteenth Amendment personis questionable; and (3) His argument fromexpert disagreement over the unborn’s fullhumanity—that the unborn is not a Four-teenth Amendment person because expertsdisagree on its status—undermines theright to abortion as well as provides a rea-son to prohibit abortion. Instead of restat-ing these bad arguments, the Casey Courtinvented new ones. It upheld Roe on thebasis of stare decisis for which the Courtprovided two reasons: the reliance inter-est, and the Court’s legitimacy and thepublic’s respect for it. Concerning the first,the Court argued that because women andmen have planned and arranged their liveswith the abortion right in mind, that is,because they have relied on this right, itwould be wrong for the Court to jettison

19

it.83 And secondly, if the Court were to over-turn Roe, it would suffer a loss of respectin the public’s eye and perhaps chip awayat its own legitimacy, even if rejecting Roe

would in fact correct an error in constitu-tional jurisprudence.84 The Court, never-theless, in its opening comments in Casey

speaks of abortion as a liberty groundedin the due process clause of the FourteenthAmendment, an extension of the right ofprivacy cases we covered earlier.85 Yet, eventhe Roe Court understood that abortion hadbeen banned nearly everywhere in the U.S.for quite some time, and thus it could noteasily be construed as a fundamental lib-erty found in our Nation’s Traditions andHistory unless the reason for banningabortion was now obsolete and the fetuswas not protected under the FourteenthAmendment. The Roe Court, as we saw,made the argument, one that we now knowwas largely based on a distortion of his-tory that virtually all scholars concede wasfalse and misleading. So, nothing of anysubstance was left for the Casey Court tohang its hat except for an appeal to stare

decisis based on the reliance interest and thepublic’s perception of the Court’s legiti-macy.86 After all, if the Casey Court reallybelieved that Roe’s reasoning was sound,that abortion was really a fundamental lib-erty found in our nation’s tradition andhistory, it would have made that argumentrather than relying on these counterfeit rea-sons. But the implications of this deal withthe devil are daunting. By putting in placethe premises of jurisprudence that it did,the Court gave cover to future courts to“justify” any perversity it wants to upholdor “discover.” For example, given the pre-mises of Casey, the Court could knowingly,and “justifiably,” deprive a citizen of hisor her fundamental rights if the Courtbelieves that a vast majority of other citi-

zens have relied on that deprivation, andto declare it unjust would make the Courtlook bad in the eyes of the beneficiaries ofthis injustice. Here’s the lesson: if a baddecision cannot be overturned because itis bad, then we cannot rely on the Court toprotect a good opinion when it is good, ifwhat is doing all the work is narcissus stare

decisis, upholding precedent if it helps yourimage.

It seems to me that Chief Justice Rehn-quist, the author of the Court’s Webster

opinion, got it right when he made thecomment in his dissenting opinion in Casey:“Roe v. Wade stands as a sort of judicialPotemkin Village, which may be pointedto passers-by as a monument to the impor-tance of adhering to precedent. But behindthe facade, an entirely new method ofanalysis, without any roots in constitu-tional law, is imported to decide theconstitutionality of state laws regulatingabortion. Neither stare decisis nor ‘legiti-macy’ are truly served by such an effort.”87

Beginning in 1996 then-President BillClinton vetoed several bills passed by theU.S. Congress to prohibit what prolifeactivists call “partial-birth abortion.”88 Alsoknown as D & X (for dilation and extrac-tion) abortion, this procedure is performedin some late-term abortions. Using ultra-sound, the doctor grips the fetus’s legs withforceps. The fetus is then pulled outthrough the birth canal and delivered withthe exception of its head. While the head isin the womb the doctor penetrates the livefetus’s skull with scissors, opens the scis-sors to enlarge the hole, and then inserts acatheter. The fetus’s brain is vacuumed out,resulting in the skull’s collapse. The doc-tor then completes the womb’s evacuationby removing a dead fetus.

Although none of the congressional billsbecame law, 30 states, including Nebraska,

20

passed similar laws that prohibited D & Xabortions. However, in Stenberg v. Carhart

(2000),89 the Supreme Court, in a 5-4 deci-sion, struck down Nebraska’s ban onpartial-birth abortions, on two grounds:(1) The law lacked an exception for thepreservation of the mother’s health, whichCasey required of any restrictions onabortion, (2) Nebraska’s ban imposed anundue burden on a woman’s fundamen-tal right to have an abortion.

Although Nebraska’s statute had a “lifeof the mother” exception, the Courtpointed out that Casey requires an excep-tion for both the life and health of the motherif a state wants to prohibit post-viabilityabortions.90 But Nebraska did not limit itsban to only D & X abortions performedafter viability. Its ban applied throughoutpregnancy. So, according to the Court,unless Nebraska can show that its ban doesnot increase a woman’s health risk, it isunconstitutional: “The State fails to dem-onstrate that banning D & X without ahealth exception may not create significanthealth risks for women, because the recordshows that significant medical authoritysupports the proposition that in somecircumstances, D & X, would be, the safestprocedure.”91 But, as Justice Kennedypoints out in his dissent, “The most to besaid for the D & X is it may present anunquantified lower risk of complication fora particular patient but that other provensafe procedures remain available even forthis patient.”92 But the relative risk betweenprocedures, if in fact D & X is in some casesrelatively safer,93 cannot justify overturn-ing the law if the increased risk is statisti-cally negligible and if the State, as the Courtasserted in Casey94 and Webster,95 has aninterest in prenatal life throughout preg-nancy which becomes compelling enoughafter viability to prohibit abortion except

in cases when the life or the health ofthe mother are in danger. After all, if “therelative physical safety of these procedures,with the slight possible difference”96

requires that the Court invalidateNebraska’s ban on partial-birth abortion,then the Court proves too much. For withsuch premises in hand one may concludethat a ban on infanticide is unconstitutionalas well, for a parent who kills her handi-capped newborn eliminates the possibil-ity that this child from infancy to adulthoodwill drain her resources, tax her emo-tions, and require physical activity notdemanded by non-handicapped children.Consequently, to conscript Justice StephenBreyer’s language, the State that bansinfanticide fails to demonstrate that thisprohibition without a health exception maynot create significant health risks forwomen, because the record shows thatsignificant medical authority supportsthe proposition that in some circumstances,infanticide, would best advance themother’s health.

The Court’s second reason for rejectingNebraska’s law is that the ban on D & Ximposed an undue burden on a woman’sfundamental right to have an abortion. Forthe type of abortion performed in 95% ofthe cases between the 12th and 20th weeksof pregnancy, D & E abortion (dilation andevacuation), is similar to D & X abortion.97

So, the Court reasoned, if a ban on D & Xabortions is legally permissible, then so isa ban on D & E abortions. But that wouldimperil the right to abortion. HenceNebraska’s ban imposes an undue burdenon the pregnant woman, and thus violatesthe standard laid down in Casey. But, asboth Justice Thomas and Justice Kennedypoint out in their separate dissents,98 byreading Nebraska’s law in this way, theCourt abandoned its long standing doc-

21

trine of statutory construction, that statutesshould be read in a way that is consistentwith the Constitution if such a reading isplausible. What the Court did in Stenberg

is to read Nebraska’s statute in the leastcharitable way one could read it. Moreover,Justice Thomas, in a blistering dissent,shows, in meticulous and graphic detail,99

that D & X and D & E procedures are dis-similar enough that it is “highly doubtfulthat” Nebraska’s D & X ban “could beapplied to ordinary D & E.”100

It remains to be seen whether Congressand/or state legislatures will try to enactnew laws that include both a health excep-tion as well as a more narrow definition ofD & X abortion. However, it is unclear thatif such laws were enacted they would passconstitutional muster, for it seemed tomany (including Justice Kennedy whoco-authored the plurality opinion in Casey

and authored a dissent in Stenberg) thatNebraska’s law did not violate the require-ments of Casey.

In 2002, the U. S. Congress with the sig-nature of President George W. Bush, passedthe “Born-Alive Infants Protection Act,” thebrainchild of the inestimable HadleyArkes.101 The Act requires that any childwho survives an abortion be immediatelyaccorded all the protections of the law thatare accorded all other postnatal humanbeings. Although it is, in the words ofArkes, a “modest first step,”102 it is not aninsignificant first step. For it affirms thatan abortion entails the expulsion of a beingwho, if she survives, should receive all theprotections of our laws. But this, of course,raises an awkward question for abortion-choice supporters: What is it, then, aboutthat vaginal passageway that changes thechild’s nature in such a significant fashionthat it may be killed without justificationbefore exit but only with justification post-

exit? The Act put in place a premise thatelicits questions that lead one back to themost important question in this debate:Who and what are we?

ConclusionThe Supreme Court currently affirms a

woman’s right to abortion virtually unre-stricted prior to fetal viability, allowingstates to only make restrictions prior toviability that do not entail an undue bur-den. However, given the wideness of theSupreme Court’s “health exception,” astate’s ability to restrict post-viability abor-tions is questionable, especially given theCourt’s Stenberg opinion and Roe’s pre-

Casey progeny. Thus, according to the cur-rent legal regime in the United States, theunborn is not protected by the U.S. Con-stitution from death-by-abortion at anystage in her nine-month gestation.

ENDNOTES1Roe v. Wade, 410 U.S. 113 (1973).2Mortimer J. Adler, Haves Without Have-

Nots: Essays on the 21st Century on Democ-

racy and Socialism (New York: Macmillan,1991) 210 (emphasis added).

3See Dorothy C. Wertz and John C.Fletcher, “Fatal Knowledge?: PrenatalDiagnosis and Sex Selection,” Hastings

Center Report, May/June 1989; Joyce Price,“Prenatal Test of Sex Sometimes TriggersAbortion Decisions,” Washington Times,13 February 1987; Christopher Farley,“The Debate Over Uses of Prenatal Test-ing,” USA Today, 2 February 1989; GinaKolata, “Fetal Sex Test Used as Step toAbortion,” The New York Times, 25 Decem-ber 1988; Jo McGowan, “In India, TheyAbort Females,” Newsweek, 30 January1989; Anne Koeing, “Abortion for Gen-der is Debated,” Lancaster Pennsylvania

News, 22 January 1989; Naryung Kim,

22

“Breaking Free From Patriarchy: AComparative Study of Sex SelectionAbortions in Korea and the UnitedStates,” UCLA Pacific Basin Law Jour-

nal 17 (Fall 1999/Spring 2000) 301-325; David Stoller, “Prenatal GeneticScreening: The Enigma of SelectiveAbortion,” Journal of Law and Health

12 (1998) 121-140; Susan M. Faust,“Baby Girl or Baby Boy? Now YouCan Choose: A Look at New Biologyand No Law,” Albany Law Journal of

Science and Technology 10 (2000) 281-303; Lynne Marie Kohm, “Sex Selec-tion Abortion and the BoomerangEffect Of a Woman’s Right to Choose:A Paradox of the Skeptics,” William

& Mary Journal of Women and the Law

4 (Winter 1997) 91-128; and AprilL. Cherry, “A Feminist Understand-ing of Sex-Selective Abortion:Solely a Matter of Choice,” Wiscon-

sin Women’s Law Journal 10 (1995)161-223.

4See, for example, the pre-1990 workscited in note 3.

5The Supreme Court has consistentlystruck down state statutes that haverequired involvement by other fam-ily members in the abortion decisionof an adult female. See, for example,Planned Parenthood of Missouri v.

Danforth, 428 U.S. 52 (1976).6Abortion-choice advocate and Har-vard law professor, Laurence Tribewrites: “A decade and a half after theCourt handed down its decision inRoe v. Wade McCorvey explained,with embarrassment, that she hadnot been raped after all; she made upthe story to hide the fact she had got-ten ‘in trouble’ in the more usualway” (Laurence Tribe, Abortion: The

Clash of Absolutes [New York: W. W.

Norton, 1990] 10).7Webster v. Reproductive Health Services,492 U.S. 490 (1989).

8Planned Parenthood v. Casey, 505 U.S.833 (1992).

9Roe, 410 U.S. 164-165.10“[A]ppellant and some amici argue

that the woman’s right is absoluteand that she is entitled to terminateher pregnancy at whatever time shealone chooses. With this we do notagree” (ibid.). The Court writes else-where in Roe: “The privacy rightinvolved, therefore, cannot be saidto be absolute. In fact, it is not clearto us that the claim asserted by someamici that one has an unlimited rightto do with one’s body as one pleasesbears a close relationship to the rightof privacy previously articulated inthe Court’s decisions. The Court hasrefused to recognize an unlimitedright of this kind in the past. Jacobson

v. Massachusetts, 197 U.S. 11 (1905)(vaccination); Buck v. Bell, 274 U.S.200 (1927) (sterilization)” (ibid., 154).

11Akron v. Akron Center for Reproductive

Health, Inc., 462 U.S. 416 (1983)(O’Connor, J., dissenting) at 459.

12Nevada Revised Statute, 442.250,subsection 3.

13Doe v. Bolton, 410 U.S. 179 (1973) at192.

14Report, Committee on the Judiciary,U.S. Senate, on Senate Resolution 3,98th Congress, 98-149, 7 June 1983,6. In another report, the JudiciaryCommittee concludes: “The appar-ently restrictive standard for thethird trimester has in fact proved nodifferent from the standard of abor-tion on demand expressly allowedduring the first six months of theunborn child’s life. The exception for

maternal health has been so broadin practice as to swallow the rule. TheSupreme Court has defined ‘health’in this context to include ‘all fac-tors—physical, emotional, familial,and the woman’s age—relevant tothe well-being of the patient.’ Doe v.

Bolton, 410 U.S. 179, 192 (1973). Sincethere is nothing to stop an abortion-ist from certifying that a third-trimes-ter abortion is beneficial to the healthof the mother—in this broad sense—the Supreme Court’s decision hasin fact made abortion available ondemand throughout the pre-natallife of the child, from conception tobirth” (Report on the Human LifeBill—S. 158; Committee on the Judi-ciary, United States Senate, Decem-ber 1981, p. 5).

15Thornburg v. American College of

Obstetricians and Gynecologists, 476U.S. 747 (1986) (Burger, J., dissent-ing).

16See, for example, Victor G. Rosen-blum and Thomas J. Marzen, “Strat-egies for Reversing Roe v. Wade

through the Courts,” in Abortion and

the Constitution, eds. Dennis Horan,Edward R. Grant, and Paige C.Cunningham (Washington, D.C.:Georgetown University Press, 1987)199-200; Thomas O’Meara, “Abor-tion: The Court Decides a Non-Case,” The Supreme Court Review

(1974) 344; Stanely M. Harrison, “TheSupreme Court and AbortionalReform: Means to an End,” New York

Law Forum 19 (1974) 690; Robert A.Destro, “Abortion and the Constitu-tion: The Need for a Life-ProtectiveAmendment,” California Law Review

63 (1975) 1250; Jacqueline NolanHaley, “Haunting Shadows from the

23

Rubble of Roe’s Right to Privacy,”Suffolk University Law Review 9 (1974)152-153; John Hart Ely, “The Wagesof Crying Wolf: A Comment on Roe

v. Wade,” Yale Law Journal 82 (1973)921; John T. Noonan, Jr., “Raw Judi-cial Power,” in The Zero People, ed.Jeff Lane Hensley (Ann Arbor, MI:Servant, 1983) 18; Charles E. Rice,“Overruling Roe v. Wade: An Analy-sis of the Proposed ConstitutionalAmendments,” Boston College Indus-

trial and Commercial Law Review 15(December 1973) 309; Lynn D.Wardle and Mary Anne Q. Wood, ALawyer Looks at Abortion (Provo, UT:Brigham Young University Press,1982) 12; William R. Hopkin, Jr., “Roe

v. Wade and the Traditional LegalStandards Concerning Pregnancy,”Temple Law Quarterly 47 (1974) 729-730; John Warwick Montgomery,“The Rights of Unborn Children,”Simon Greenleaf Law Review 5 (1985-86) 40; Stephen M. Krason, Abortion:

Politics, Morality, and the Constitution

(Lanham, MD: University Press ofAmerica, 1984) 103-104; and RogerWertheimer, “Understanding Black-mun’s Argument: The Reasoning ofRoe v. Wade,” in Abortion: Moral and

Legal Perspectives (Amherst: Univer-sity of Massachusetts Press, 1984)120-121.

17Roe, 410 U.S. 163.18Colautti v. Franklin, 439 U.S. 379

(1979) at 387, quoting from ibid.However, given the Court’s analysisin Casey (see below) and that opin-ion’s understanding of Roe, it mayreject Colautti’s definition of “mean-ingful life,” though one may neverreally know for sure.

19Griswold v. Connecticut, 381 U.S. 479

(1965).20Eisenstadt v. Baird, 405 U.S. 438 (1972).

In the words of Justice Brennan,author of the majority opinion: “Ifunder Griswold the distribution ofcontraceptives to married personscannot be prohibited, a ban on dis-tribution to unmarried personswould be equally impermissible. Itis true that in Griswold the right ofprivacy in question inhered in themarital relationship. Yet the maritalcouple is not an independent entitywith a mind and heart of its own, butan association of two individualseach with a separate intellectual andemotional makeup. If the right ofprivacy means anything, it is theright of the individual, married orsingle, to be free from unwarrantedgovernmental intrusion into mattersso fundamentally affecting a personas the decision to bear and beget achild.”

21This is not to say that one may notraise objections to the “right of pri-vacy.” For its proponents admit thatthis right has no connection to theactual language of the Constitution’stext. According to Justice William O.Douglas, who penned the pluralityopinion in Griswold, this right ofprivacy can be gleaned, not from aliteral reading of the words found inthe Bill of Rights, but from “penum-bras” that stand behind these words,and these penumbras are “formed byemanations from those guaranteesthat help give them life and sub-stance”(Griswold, 381 U.S. 484 [Dou-glas, J.]). Douglas goes on to say: “Wedeal with a right of privacy olderthan the Bill of Rights—older thanour political parties, older than our

school system. Marriage is a comingtogether for better or for worse,hopefully enduring, and intimate tothe degree of being sacred. It is anassociation that promotes a way oflife, not causes; a harmony in living,not political faiths; a bilateral loyalty,not commercial or social projects. Yetit is an association for a noble pur-pose as any involved in our priordecisions” (ibid., 486).

22Ibid.23As Justice Blackmun writes in Roe:

“The pregnant woman cannot be iso-lated in her privacy. She carries anembryo and, later, a fetus, if oneaccepts the medical definitions of thedeveloping young in the uterus....The situation therefore is inherentlydifferent from marital intimacy, orbedroom possession of obscene ma-terial, or marriage, or procreation, oreducation.... As we have intimatedabove, it is reasonable and appropri-ate for a State to decide that at somepoint in time another interest, that ofhealth of the mother or that ofpotential human life, become signifi-cantly involved. The woman’s pri-vacy is no longer sole and any rightof privacy she possesses must bemeasured accordingly” (Roe, 410 U.S.159) (citations omitted).

24Justice Blackmun writes: “[I]t hasbeen argued that a State’s real con-cern in enacting a criminal abortionlaw was to protect the pregnantwoman, that is, to restrain her fromsubmitting to a procedure that placesher life in serious jeopardy” (ibid.,149).

25Ibid., 132-136. Justice Blackmunwrites: “It is thus apparent that atcommon law, at the time of the

24

adoption of the Constitution, andthroughout the major portion of the19th century, abortion was viewedwith less disfavor than under mostAmerican statutes currently in effect.Phrasing it another way, a womanenjoyed a substantially broader rightto terminate a pregnancy than shedoes in most States today. At leastwith respect to the early stage ofpregnancy, and very possibly with-out such a limitation, the opportu-nity to make this choice was presentin this country well into the 19th cen-tury” (ibid., 140-141).

26Ibid., 132.27“Mortality rates for women under-

going early abortions, where the pro-cedure is legal, appear to be as lowas or lower than the rates of normalchildbirth. Consequently, any inter-est of the State in protecting thewoman from an inherently danger-ous procedure, except when it wouldbe equally dangerous for her to forgoit, has largely disappeared” (Roe, 410U.S. 149).

28Roe, 410 U.S. 129-151.29Ibid., 139 (emphasis added).30Joseph W. Dellapenna, “The History

of Abortion: Technology, Moralityand Law,” University of Pittsburgh

Law Review 40 (1979) 389.31Among these many works are the

following: James S. Witherspoon,“Re-examing Roe: Nineteenth-Cen-tury Abortion Statutes and the Four-teenth Amendment,” St. Mary’s Law

Journal 17 (1985) 29-77; Krason, 134-157; Dennis J. Horan and Thomas J.Balch, “Roe v. Wade: No Justificationin History, Law, or Logic,” The Abor-

tion Controversy 25 Years After Roe v.

Wade: A Reader, 2nd ed., ed. Louis P.

Pojman and Francis J. Beckwith(Belmont, CA: Wadsworth) 73-94;Joseph W. Dellapenna, “Abortionand the Law: Blackman’s Distortionof the Historical Record,” in Abortion

and the Constitution, 137-158; andJoseph W. Dellapenna, “The Historyof Abortion, 359-428; Martin Arbagi,“Roe and the Hippocratic Oath,” inAbortion and the Constitution, 159-181; Harold O. J. Brown, “Whatthe Supreme Court Didn’t Know:Ancient and Early Christian Viewson Abortion,” Human Life Review

1.2 (Spring 1975) 5-21; Robert M.Byrn, “An American Tragedy: TheSupreme Court on Abortion,”Fordham Law Review 41 (1973) 807-862; John R. Connery, S. J., “TheAncients and the Medievels on Abor-tion: The Consensus the CourtIgnored,” in Abortion and the Consti-

tution, 123-136; John Keown, Abor-

tion, Doctors, and the Law: Some

Aspects of the Legal Regulation of Abor-

tion in England from 1803 to 1982

(New York: Cambridge UniversityPress, 1988) 3-25; Janet LaRue,“Abortion: Justice Harry A. Black-mun and the Roe v. Wade Decision,”Simon Greenleaf Law Review: A Schol-

arly Forum of Opinion Interrelating

Law, Theology & Human Rights 2(1982-83) 122-145; Marvin Olasky,Abortion Rites: A Social History of

Abortion in America (Wheaton, IL:Crossway, 1992); and Robert Sauer,“Attitudes to Abortion in America,1800-1973,” Population Studies 28(1974) 53-67.

32See, generally, Witherspoon,“Re-examing Roe.”

33Ibid.34Ibid., 70.

35Cyril Means, “The Phoenix ofAbortional Freedom: Is a Penumbralor Ninth Amendment Right Aboutto Rise from the Nineteenth-CenturyLegislative Ashes of a Fourteenth-Amendment Common Law Lib-erty?” New York Law Forum 17 (1971)335-410; and “The Law of New Yorkconcerning Abortion and the Statusof the Foetus: 1664-1968,” New York

Law Forum 14 (1968) 411-515.36In addition to Witherspoon’s article,

see Byrn, “An American Tragedy”;Krason, 134-157; Horan and Balch,“Roe v. Wade: No Justification in His-tory, Law, or Logic”; Dellapenna,“Abortion and the Law”; and idem,“The History of Abortion.”

37See, for example, Tribe, 27-41, 119-220; and Susan Estrich, “AbortionPolitics: Writing for an Audience ofOne,” University of Pennsylvania Law

Review 138 (1989) 152-154.38Roe, 410 U.S. 132.39Ibid., 133.40Obviously, false beliefs may be

widely held. The point here is thatan ancient belief may be abandonedbecause it is false. That is, a belief’sage has no bearing on its truthful-ness.

41Krason, 148.42The Human Life Bill: Hearings on S.

158 before the Subcommittee onSeparation of Powers of the SenateCommittee on the Judiciary, 97thCongress, 1st Session (statement ofVictor Rosenblum, Professor of Law,Northwestern University) 474 .

43John Warwick Montgomery, Slaugh-

ter of the Innocents (Westchester, IL:Crossway, 1981) 37.

44Witherspoon, 32.45“The right of privacy, whether it be

25

founded in the Fourteenth Amend-ment’s concept of personal libertyand restrictions upon State action, aswe feel it is, or, as the District Courtdetermined, in the Ninth Amend-ment’s reservation of rights to thepeople, is broad enough to encom-pass a woman’s decision whether ornot to terminate her pregnancy”(Roe, 410 U.S, 153).

46“The appellee and certain amici arguethat the fetus is a ‘person’ within thelanguage and meaning of the Four-teenth Amendment. In support ofthis, they outline at length and indetail the well-known facts of fetaldevelopment. If this suggestion ofpersonhood is established, theappellant’s case, of course, collapses,for the fetus’ right to life would thenbe guaranteed specifically by theAmendment. The appellant con-ceded as much on reargument. Onthe other hand, the appellee con-ceded on reargument that no casecould be cited that holds that a fetusis a person within the meaning ofthe Fourteenth Amendment” (ibid.,157-158).

47Ibid., 157.48Ibid. In a note that followed this

quote, the Court writes: “WhenTexas urges that a fetus is entitled toFourteenth Amendment protectionas a person, it faces a dilemma. Nei-ther in Texas nor in any other Stateare all abortions prohibited. Despitebroad proscription, an exceptionalways exists. The exception con-tained in Art. 1196, for an abortionprocured or attempted by medicaladvice for the purpose of saving thelife of the mother, is typical. But ifthe fetus is a person who is not to be

deprived of life without due processof law, and if the mother’s conditionis the sole determinant, does notTexas’s exception appear to be outof line with the Amendment’s com-mand?” (ibid., 157-58 n. 54). Giventhe sui generis nature of pregnancy,the life of the mother exception isperfectly consistent with, and incor-porates the principle that groundsthe common law notion of justifiedhomicide for self-defense. Because acontinued pregnancy that imperils awoman’s life will likely result in thedeath of both mother and child, thelaw, by permitting this exception,allowed physicians and patients thefreedom to make a medical judg-ment that would result in at least onelife being saved. Thus, if JusticeBlackmun had chosen to exercise hisimagination, the apparent inconsis-tency he thought he had found in theTexas law would have disappeared.In addition, the Court presentsanother argument: “There are otherinconsistencies between FourteenthAmendment status and the typicalabortion statute. It has already beenpointed out...that in Texas thewoman is not a principal or anaccomplice with respect to an abor-tion upon her. If the fetus is a person,why is the woman not a principal oran accomplice? Further, the penaltyfor criminal abortion specified byArt. 1195 is significantly less than themaximum penalty for murder pre-scribed by Art. 1257 of the TexasPenal Code. If the fetus is a person,may the penalties be different?”(ibid., 158 n. 54). Since I address thisand a similar argument in greaterdetail in Politically Correct Death:

Answering the Arguments for Abortion

Rights (Grand Rapids: Baker, 1993)72-74, a few brief comments will suf-fice here. First, if Blackmun is correctthat Texas’s laws are inconsistentwith its claim that the unborn is aFourteenth Amendment person-hood, it does not prove that theunborn are not human persons orthat abortion is not a great moral evil.It simply proves that Texas wasunwilling to “bite the bullet” andconsistently apply its position. Theunborn may still be a FourteenthAmendment person, even if the lawsof Texas do not adequately reflectthat. Texas’s inconsistency, if therereally is one, proves nothing, for ifthe unborn is a Fourteenth Amend-ment person, then Texas’s laws vio-late the unborn’s equal protection;but if the unborn is not a FourteenthAmendment person, then Texas’slaws violate the pregnant woman’sfundamental liberty. How a statutetreats the unborn’s assailants has nobearing on what the unborn in factis. Second, as I point out in Politically

Correct Death, the Roe Court did nottake into consideration the possiblereasons why Texas’s statutes and thoseof other states granted womenimmunity or light sentences andspecified penalties for abortionistsnot as severe in comparison to pen-alties for non-abortion homicides.These reasons, I will argue, werethought by legislators to justify pen-alties they believed had the bestchance of limiting the most abortion-homicides as possible. Thus, Texas’spenalties as well as those of otherstates were consistent with affirmingthe unborn as a Fourteenth Amend-

26

ment person.49Ibid., 157.50Ibid.51My 12-year-old nephew, Dean James

Beckwith, made this same pointwhen I read the relevant portion ofthe Fourteenth Amendment to himand his father, my brother, Dr. JamesA. Beckwith.

52Krason, 168.53Steinberg v. Brown, 321 F. Supp. 741

(ND Ohio 1970).54Roe , 410 U.S. 155 (citing Steinberg, 321

F. Supp. as well as other cases inwhich courts have sustained anti-abortion statutes).

55Steinberg , 321 F. Supp., 746-747.56See Francis J. Beckwith, “Baha’ism,”

in Dictionary of Contemporary Religion

in the Western World, ed. ChristopherPartridge, et. al. (Downers Grove:InterVarsity Press, 2002) 168-171.

57This is why some conservative legalscholars, such as Robert Bork, aremistaken when they say that theFourteenth Amendment cannot inprinciple be applied to the unborn.See Nathan Schlueter and Robert H.Bork, “Constitutional Persons: AnExchange on Abortion,” First Things

129 (January 2003). Thank you to JimStoner for bringing this essay to myattention.

58See Krason’s historical analysis andcitations of the relevant literature inKrason, 164-173.

59Roe, 410 U.S. 160.60Ibid., 163.61Ibid., 157-158.62See, for example, Danforth, 428 U.S.

52 (held as unconstitutional paren-tal and spousal consent requirementsas well as state ban on saline [or saltpoisoning] abortions, a procedure

that literally burns the skin of theunborn); Colautti, 439 U.S. 379 (statemay not define viability or enjoinphysicians to prove the fetus is viablein order to require that they have aduty to preserve the life of the fetusif a pregnancy termination is per-formed ; “viability” is whatever thephysician judges it is in a particularpregnancy); Akron, 462 U.S. 416 (heldas unconstitutional: informed con-sent requirement, 24-hour waitingperiod, parental consent require-ment, compulsory hospitalizationfor second trimester abortions, andhumane and sanitary disposal offetal remains); Thornburg , 476 U.S.747 (struck down as unconstitutionalPennsylvania statute that requiredinformed consent of abortion’s pos-sible risks to a woman, that requiredthat the pregnant woman beinformed of agencies that wouldhelp her if she brought a child toterm, that the abortion providerreport certain statistics about theirpatients to the state, and that a sec-ond physician be present at abortionwhen fetal viability is possible).

63See Harris v. McRae, 448 U.S. 297(1980).

64Webster v. Reproductive Health Services,492 U.S. 490 (1989).

65Ibid., 504 , quoting from Mo. Rev.Stat. § 1.205.1(1), (2) (1986) (paren-thetical insertions are the Court’s).

66Ibid., 504, quoting from Mo. Rev.Stat. § 1.205.2 (1986).

67Ibid., 513, quoting from Mo. Rev. Stat.§ 188.029 (1986).

68Mo. Rev. Stat. § 188.029 (1986), asfound in ibid.

69Webster, 492 U.S. 520. “No abortionof a viable unborn child shall be per-

formed unless necessary to preservethe life or health of the woman” (Mo.Rev. Stat. § 188.030 [1986]).

70Webster , 492 U.S. 519.71Ibid.72Casey, 505 U.S. 844.73Ibid., 877.74“Yet it must be remembered that Roe

v. Wade speaks with clarity in estab-lishing not only the woman’s libertybut also the States ‘important andlegitimate interest in potential life.’... That portion of the decision in Roe

has been given too little acknowledg-ment and implementation by theCourt in its subsequent cases. Thosecases decided that any regulationtouching upon the abortion decisionmust survive strict scrutiny, to besustained only if drawn in narrowterms to further a compelling stateinterest.... Not all of the cases decidedunder that formulation can be rec-onciled with the holding in Roe itselfthat the State has legitimate interestsin the health of the woman and inprotecting the potential life withinher. In resolving this tension, wechoose to rely upon Roe, as againstthe later cases” (ibid., 871).

75The Court in fact explicitly overrulesAkron, 462 U.S. and Thornburgh, 476U.S.: “To the extent Akron I andThornburgh find a constitutionalviolation when the governmentrequires, as it does here, the givingof truthful, nonmisleading informa-tion about the nature of the proce-dure, the attendant health risks andthose of childbirth, and the ‘probablegestational age’ of the fetus, thosecases go too far, are inconsistent withRoe’s acknowledgment of an impor-tant interest in potential life, and are

27

overruled” (Casey, 505 U.S. 882).76Ibid., 872.77Ibid., 870.78Roe, 410 U.S. 163.79Justice Blackmun’s dissenting opin-

ion in Webster (492 U.S. 553) seemsto bear this out: “For my part, Iremain convinced, as six other Mem-bers of this court 16 years ago wereconvinced, that the Roe framework,and the viability standard in particu-lar, fairly, sensibly, and effectivelyfunctions to safeguard the constitu-tional liberties of pregnant womenwhile recognizing and accommodat-ing the State’s interest in potentialhuman life. The viability line reflectsthe biological facts and truths of fetaldevelopment; it marks the thres-hold moment prior to which a fetuscannot survive separate from thewoman and cannot reasonably andobjectively be regarded as a subjectof rights or interests distinct from, orparamount to, those of the pregnantwoman. At the same time, the viabil-ity standard takes account of theundeniable fact that as the fetusevolves into its postnatal form, andas it loses its dependence on the uter-ine environment, the State’s interestin the fetus’ potential human life, andin fostering a regard for human lifein general, becomes compelling.”

80Blackmun reveals this confusion inhis dissent in Webster (492 U.S. 553):“[T]he viability standard takesaccount of the undeniable fact thatas the fetus evolves into its postna-tal form, and as it loses its depen-dence on the uterine environment,the State’s interest in the fetus’potential human life, and in foster-ing a regard for human life in gen-

eral, becomes compelling.81Hadley Arkes, First Things: An

Inquiry into the Principles of Morals and

Justice (Princeton: Princeton Univer-sity Press, 1986) 379.

82Ibid., 870.83“[F]or two decades of economic and

social developments, people haveorganized intimate relationships andmade choices that define their viewsof themselves and their places insociety, in reliance on the availabil-ity of abortion in the event that con-traception should fail”(Casey, 505U.S. 869).

84“A decision to overrule Roe’s essen-tial holding under the existing cir-cumstances would address error, ifthere was error, at the cost of bothprofound and unnecessary damageto the Court’s legitimacy, and to theNation’s commitment to the rule oflaw” (Casey, 505 U.S. 869).

85Casey, 505 U.S. 844-853.86Oddly enough, the Court does claim

it will not reexamine Roe “becauseneither the factual underpinnings ofRoe’s central holding nor our under-standing of it has changed (andbecause no other indication of weak-ened precedent has been shown)”(ibid., 864). This is a curious argu-ment, for it is unlikely that the Courtand its clerks did not know that thereexists a massive volume of scholarlyliterature that shows that the Roe

opinion is significantly flawed in itshistory and its logic. Unless theCourt means something else by theterm “factual underpinnings,” noth-ing but willful ignorance can accountfor the Court not taking this scholar-ship into serious consideration whenassessing the merits of this case and

crafting an opinion for it.87 Ibid., 966 (Rehnquist J., dissenting).88See “Partial Birth Abortion,” Center

for Reproductive Rights Home Page,available at http://www.crlp.org/hill_pba.html (January 22, 2003).

89Stenberg v. Carhart, 120 S. Ct. 2597(2000).

90Ibid., citing Casey 505 U.S. 879.91Ibid., 2610.92Ibid., 2628 (Kennedy, J., dissenting).93As Justice Kennedy points out in his

dissent, there is impressive medicalopinion that D & X abortion is notany less risky and may in some casesincrease the risk to a woman’s health.See ibid., 2626-2631 (Kennedy, J.,dissenting).

94Casey, 505 U.S. 871. The Court writes:“Even in the earliest stages of preg-nancy, the State may enact rules andregulations designed to encourage [awoman] to know that there are philo-sophic and social arguments of greatweight that can be brought to bearin favor of continuing the pregnancyto full term and there are proceduresand institutions to allow adoption ofunwanted children as well as a cer-tain degree of state assistance if themother chooses to raise the childherself” (ibid., 872) (insertion mine).

95Webster, 492 U.S. 519.96Stenberg, 120 S. Ct. 2628 (Kennedy, J.,

dissenting).97Ibid., 2606.98“Were there any doubt remaining the

statute could apply to a D & E pro-cedure, that doubt is no ground forinvalidating the statute. Rather, weare bound to first consider whethera construction of that statute is fairlypossible that would avoid the con-stitutional question” (ibid., 2644, cit-

28

ing Erznoznick v. Jacksonville, 422 U.S.205 [1975] at 216 and Frisby v. Schultz,487 U.S. 474 [1988] at 482 [Thomas,J., dissenting]). See also ibid., 2631(Kennedy, J., dissenting).

99Ibid., 2640-2643 (Thomas, J., dissent-ing).

100Ibid., 2640.101Although published before the Act

became law, one should read Arkes’selegant account of the Act’s historyas well as his public encounters withcertain members of Congress: Had-ley Arkes, Natural Rights and the Right

to Choose (New York: CambridgeUniversity Press, 2002) 234-294.

102 Ibid., 89.