The Out-Lawyer's Blog

BACKGROUND

Roe vs. Wade: A Fragile Social Consensus Unraveling

Talk about the electrified third rail of politics.  The “woman’s choice” vs. “right to life” struggle remains as high voltage – and politically lethal – as it ever was. And Mr. Giuliani, the putative republican front-runner, is also the most “pro-choice’ of the candidates.  It will be a tight race against the putative front-runner for the democrats, Mrs. Clinton.  Mr. Giuliani needs the “Christian right” as much as Mrs. Clinton needs the “code pink” left.   

You would think that, as a Roman Catholic, Mr. Giuliani would have a natural advantage.  But life is never that simple.

A Review: 

This is a good time to recall that Earl Warren, a former hard nosed prosecutor and the popular middle-of-the road republican governor of California (1942-1953), was never considered a brilliant legal scholar.  He was appointed to the U. S. Supreme Court by President Eisenhower, almost in self defense.  His most two important achievements as Supreme Court Justice (Miranda vs. Arizona and Brown vs. Board of Education) have proved durable more because of their practical and political underpinnings than due to their underlying legal reasoning. This is not intended to be read as a critique of Justice Warren's work on the court.

Roe was decided in 1972, four years after Mr. Warren’s death.  It was a seven to two decision with strongly worded dissenting opinions. By contrast, Warren’s landmark desegregation case, Brown v. Board of Education, was unanimous. Justice Warren’s judicial philosophy was nothing if it was not supremely practical: in the most controversial of decisions, Warren felt that Supreme Court unanimity was essential. 

Rarely has the high court ventured into such a hotly contested moral and social controversy as it did in Roe, with a divided court and based solely on disputed legal reasoning.  We can reasonably doubt whether, had Earl Warren lived and served on the 1972 court, Roe would have been decided in the way and with the particular social and political reach that it achieved.

Thirty five years later, the Roe decision hangs by a stare decisis thread.  Not one of the justices who voted in 1972 is still alive. 

And there has been a sea change in popular opinion. While most Americans are not stridently “pro life”, they are not stridently “pro choice” either. While a clear majority of Americans support the recent Congressional ban on the partial birth abortion procedure (I’ll spare you the chilling clinical details that prompted such a widespread popular revulsion), a politically powerful minority remains “pro-choice” even in this subset of cases.

Clearly, if it were re-decided today, Roe would not be a 7-2 plurality decision, it would be a 5-4 squeaker … and I’m not at all sure which way the chips would fall.  The passion on each side has not diminished a whit.

How the Roe Holding Limited State’s Rights

The core holding in Roe was a limitation of states’ rights.  After Roe, no longer did each state have the unlimited power to allow or prohibit abortion.  The court created a three-trimester scheme as follows:

• “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
  

• “For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
  

• “For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
  

The Trouble Ahead

If Roe’s federal restrictions on state action fully disappeared tomorrow, we could easily face a crippling social division along the following lines: New state laws would be passed, some allowing abortions currently prohibited, and others outlawing abortions, currently allowed.  Some pro-life jurisdictions would be jailing physicians and would-be mothers while others would be jailing passionate protesters.  It is not at all clear that the reversal of Roe would actually improve things for either side.  Pregnant women would once again cross state lines to seek abortions.  It is not at all clear, that in a post Roe legal environment we would not experience a steep increase in the aggregate number of abortions. The pro-life cause has benefited from gradualism, an emphasis on adoption and – yes – birth control. 

All this would unfold as the country faces a decades-long defensive war against bands of jihad of Islamic extremists for whom the offenses of marital disobedience and other acts of “western decadence” warrant beheading.

WHAT CAN RUDY SAY?

Here is the speech I imagine the Nation’s Mayor giving.

“I wholeheartedly support the culture of life and oppose the culture of death.  That is what separates us from the bloody minded jihadists, the terrorists and the holocaust deniers.

“My plea to every mother and mother to be is this: Choose life.  This is my promise: I will support your choice to bring a child into the world with every resource at my command.  Don’t let anyone talk you out of it.

“In the larger arena of public policy, I recognize that not every American of good will always be in agreement about the right policy in this sensitive area of concern.  Therefore I and all those who support the culture of life need to join together in the practical world where we will press in various ways to bring about that wonderful day when the respect for live prevails and cause of replacing abortion procedures with life affirming solutions has prevailed.

“This is a long struggle and it will require great perseverance and patience. But the arc of history is with us.  The pro-life forces have made great progress in the last two decades because they have changed hearts and minds. They have won policy victories that I strongly support, like the federal ban on partial birth abortions and protections for parental notification. I will defend these victories for life and I will press for more. 

“I am for gradualism because gradualism works; it starts at the ground level where real people make real choices. And I support gradualism - above all – because it enables us to remain united as a people.  We are at war against attackers who are missionaries of the culture of death.  We will defeat them as long as we can stay united. 

“We will continue the pro-life progress that has been made here at home with all deliberate speed. The forces for life will prevail here at home because history and the Author of all life are on our side.  Life will prevail. America will prevail.”

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JBG