These are notes I took from a speech yesterday, “Abortion jurisprudence from Roe to Carhart II,” by Clarke Forsythe, president of Americans United for Life, at its legal institute:
America abided by English law from 1600 to the 1800s.
Around 1600 homicide law began to deal with only born human beings. Abortion law dealt with unborn human beings. The notion of “quickening” was the best knowledge anyone had of knowing a woman was pregnant. The law couldn’t do anything if it didn’t know the unborn child was alive.
The American colonies adopted these laws, called “common law,” in the 1800s.
The first state passing an abortion law was CT in 1821. Between 1821 and the end of the 19th Century, other state legislatures did, too. Most states prohibited abortion except to save life of mother.
That was the status of abortion law until the 1960s. In 1967 states began adopting exceptions….
By 1970, 14 states allowed broader or narrower exceptions. On the eve of Roe v. Wade, however, 30 states still prohibited abortion.
It’s interesting to note no states repealed or removed abortion law in the 1971-72 legislative sessions. The abortion reform movement was kind of spent.
Nevertheless, the Supremes thought they were riding a wave, and in January 1973 they eliminated all abortion laws in all 50 states. No state abortion law was broad enough.
Roe v. Wade said there was a right to abortion. There could be no prohibition of abortion at viability and up to birth.
The Doe v. Bolton decision, handed down the same day, established a broad definition of “health.”
The full implications of Roe and Doe only slowly came to be known.
The decisions of Roe and Doe were vague. Aside from being clear abortion could not be prohibited in the first trimester, the Supremes left all other questions unanswered.
After eliminating state abortion laws, the Supremes said states could pass undefined regulations. This ambiguity formed the basis for the 28-29 abortion cases that have gone before the Supremes since.
In the Roe decision, there are the two holdings, and the rest of the 75+ pages were reasons for the decision. Most of those pages were history.
Why did the Supremes go into history? Because Blackmun was trying to create the argument that abortion laws in 18th and 19th Centuries only did so to protect women from unsafe procedures. He maintained we knew now they were safe and didn’t need them. He said the laws weren’t intended to protect the unborn.
Lawyers call that historical rationale “substantive due process,” or the historical argument for traditional laws against abortion.
The second holding of the Court in Roe was the unborn were not protected by the Constitution.
To overturn Roe, both holdings must be overturned.
In the 1992 Casey decision, the Supremes threw out history, because they knew there was no historical rationale for the right to abortion.
Since 1992 no Supreme Court justice has tried to argue the abortion right has any foundation in American history.
They even threw out the “right to privacy” in 1992, and the Court hasn’t talked about privacy since.
The court replaced that rationale with a sociological rationale. Instead of saying the right was created based on history, they said women had come to rely on abortion. The court began to rely on “liberty.”
This was perhaps because privacy is not in the Constitution but liberty is. Or perhaps the Supremes were trying to lay a firmer foundation.
This is the position of the Court now, that it is a back-up to contraception.
That new rationale in Casey is the key obstacle we have to overturn Roe on the Supreme Court.
In the 1992 Casey decision, the Supremes also changed the standard of review, the standard by which the courts judge the validity of state legislation.
There are three standards: High, medium and deferential. If the courts adopt deferential review, most laws would stand. Up until 1992, the Supremes held a very high standard. In 1992, they said they were going to apply an intermediate standard, but that never materialized.
The strict standard held in 2000 and struck down 30 state partial birth abortion laws. That standard held until April 18, 2007. In Gonzales v. Carhart, the pba ban decision, the Court went back to the Casey decision in a sense.
On April 18, Kennedy basically said, “We’re going to allow states to pass greater regulations.” I think if the five stay together (Alito, Kennedy, Roberts, Scalia, and Thomas), the states could pass any prohibition that makes medical sense, and it would be ok with the Court.
The Gonzales decision indicates the court is beginning to look at the sociological impact of abortion on women. Ginsburg’s dissent indicated she would shift the argument again to equal protection an equal representation.
The science of fetal development would have no bearing on the four pro-Roe Supremes (Breyer, Ginsburg, Stevens, and Souter). They are absolutely committed to abortion despite any facts. They say women need abortion.
Since Roe there have been numerous books and articles critiquing Roe and Doe.
The Open Letter to James Dobson was unfortunately based on misreading and a complete misunderstanding of the Gonzales decision. The Open Letter quoted parts of the decision as approving of abortion when, in fact, it was responding to Ginsberg’s dissent.
The Open Letter writers also misunderstood how the Supremes work. To win any case you have to have five. Kennedy controlled the outcome. He controlled the minimal standard. He wrote the minimal standard and determined at what level that was, and the other four had to go along with that. But there were a lot of hedges he wrote into the Gonzales decision. He didn’t say Roe was the law of the land, for instance. The decision was very deftly written.