Twin Decisions


I was a student at Saint Louis University School of Law when I learned of the Supreme Court’s decision in Roe v.Wade. It was in a class taught by the late Gerald T. Dunne. Dunne was a biographer of Supreme Court Justices Joseph Story and Hugo Black; he was a decorated Navy veteran of World War II (Silver Star and Purple Heart), and former vice president and general counsel of the St. Louis Federal Reserve; and he was also an Irish-Catholic Democrat of the old school, who once described a seven-course Irish gourmet dinner as “A six pack and a baked potato.”

On that fateful day in 1973, he was chagrined and incredulous. He announced the decision with obvious restraint. After briefly describing it in a general outline, he paused to note that fathers were left with no say in deciding the fate of their unborn children. The Court’s position, he observed, was “Mother knows best.”

There was little reaction from the students. One third of the class was from outside the region; one third were women. Given that mix of geography and gender, it’s surprising there wasn’t more discussion. The fault lines in American culture, visible even then, probably restrained everyone from launching into a full-scale debate.

Or perhaps it was the shock. For my part, I felt as if I had been struck a blow to the head which rendered me incapable of coherent thought. The highest tribunal of the United States of America had struck down every law restricting abortion, be it strict or lenient, in every state. It effectively established a radical right to abortion, on demand, for all nine months of pregnancy.

Yes, All Nine

This last point might escape readers familiar only with Roe and not its companion case,Doe v. BoltonRoe established a regulatory regime, based on the division of a pregnancy into trimesters. In the first trimester, the decision was left exclusively to the medical judgment of the pregnant woman and her physician. In the second trimester, the state could choose to regulate abortion only for the protection of the woman’s health.

But subsequent to “viability,” which Justice Blackmun, Roe’s author, reckoned to be at about seven months, the state could promote its interest in the “potentiality of human life” (his term) by regulation, even to the point of proscribing abortion outright–”except where it is necessary in appropriate medical judgment, for the preservation of the life or health of the mother.” This last statement–called “a cunning phrase” by the retired federal appellate judge John T. Noonan, Jr.–when read in connection with Doe v. Bolton, the evil twin of Roe, was the undoing of almost any regulation or prohibition of late-term abortions. For Blackmun would go on to state in Doe that “the medical judgment [concerning a pregnant woman’s health]may be exercised in the light of all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.” This broad, elastic definition of the “health” exception in Roe overrode, in effect, any restrictions on second or third trimester abortions, or bans on post-viability abortions.

The Court neatly prohibited in Doe the state bans and regulations of third trimester abortions allowed by Roe. Almost anything–career or college plans, for instance–with emotional, psychological, or family implications, could qualify as a health exception. We wouldn’t be seeing the endless litigation over partial-birth abortion, a short step away from infanticide, if legislatures were allowed to proscribe abortions “subsequent to viability,” as claimed by Justice Blackmun in Roe. Justice Byron White, a dissenter in both cases, said it well when he described these two decisions as “an exercise in raw judicial power.”

At the time, the importance of these cases was little understood. The mainstream Republican party was largely indifferent to the issue. Just a few years after Roe was decided, I was working in the Missouri presidential caucuses for Ronald Reagan against Gerald Ford in 1976, and then in 1980 against George Bush, Senior. Establishment Republicans were overwhelmed by the “Reagan Democrats,” most of whom were motivated by issues revolving around the family, and abortion in particular. One such Republican, a friend actually, was reported to have claimed that their defeat was partly because so many of their people were on spring vacation in Florida during the caucuses. A telling remark indeed.

“Cosmic” Issue

Another professor of mine, the historian James Hitchcock, once referred to the issue of abortion as “cosmic.” I took him to mean that where someone stood on this issue would be determined by the fundamental way in which he understood human beings and their relation to reality. Where someone stood on this issue would be indicative of how he related to other human beings, whether as objects or subjects, means or ends, mere matter or the image of the divine.

It was many years later when I grasped this insight. I initially thought, “Surely, the empirical evidence of the humanity of the unborn will win over even the most liberal of people, given their regard for humanity, especially those that are defenseless.” Along with my wife, I spent countless hours giving speeches, appearing on radio call-in shows and TV discussions, writing articles, and visiting untold community groups to present both the medical and legal issues relating to this now unprotected class of human beings. Jesuit-educated, I was convinced that reason, grounded in empirical evidence, could win the hearts and minds of Americans of all ideological stripes.

I underestimated the sheer willfulness of human beings, especially in matters of sexual behavior. Any recognition of the humanity of the unborn would force an unwelcome crisis in accepted notions of sexual freedom. The premium placed on personal autonomy, to the exclusion of all else, precluded concern for the unborn. Many of my fellow citizens simply refused to open that door; they had already decided how they would live.

The proof of this observation was the failure of the pro-abortion side to formulate alternative theories to the contention that life begins at conception. I expected that a pro-abortion theorist would acknowledge the evidence of, for instance, fetal brain activity, and argue that abortions before this point were certainly justified. This at least I could have entertained as a serious, reasonable, and humane attempt to reconcile libertarian impulses with scientific fact. But I cannot recall any such ideas emanating from the pro-abortion movement. They didn’t need to, because Roe and Doe had already ruled out the possibility of regulating any abortions. Instead of defending abortion with principled arguments, they were content to cling to a sterile, process-based liberalism, devoid of substantive views on the character of the unborn, leaving the power of life and death, for all nine months of pregnancy, in the hands of the mother.

So now nothing can come between a mother and her choice to abort her child. She has become the mirror image of the ancient Roman paterfamilias, who possessed similar powers over his household.

In the face of a hostile culture of death, the right-to-life movement has remained vibrant over the last three decades. I have lived in three states, all of which have strong citizen organizations defending the integrity of the human person, throughout the entire continuum of life. In two of the states, Missouri and Michigan, the pro-life organizations are strong political powers. Pregnancy aid or “birthright” groups have sprung up everywhere. Public-opinion polls note an increase in younger citizens’ reservations regarding abortion.

There is little to the arguments that stare decisis, originally a common law concept developed in an age without a written constitution, or a kind of Burkean prescription, requires that we accept Roe and Doe as immutable landmarks in the legal and political landscape, immune to either substantial modification or outright reversal. The prominence of the national debate over abortion, not slowing one bit over thirty years, is similar to that over slavery in terms of intensity and longevity. The centrality of abortion in the judicial-confirmation process is proof positive that nothing is settled morally, politically, or legally.

Nevertheless, a reversal of these constitutional aberrations will present very difficult circumstances, hardly a social utopia, wherein the defenders of the human person, and the unborn specifically, will have to carry the debate to parts of the country which, quite bluntly, are anti-life. Walker Percy’s Thanatos Syndrome predominates in many quarters. It would be utopian to expect that the great coastal states will, in the near term, pass any kind of effective code of civil regulation, much less criminal sanctions, vis-à-vis abortionists.

Many have argued that, in actuality, moving the debate to the state legislatures will be a boon for the pro-abortion position. Undoubtedly this will be true in many regions–at least in the short term. Nevertheless, we will finally have an honest, democratic debate. Removing the judicial imprimatur from abortion on demand will allow us to argue over specific measures, not just abstract legal principles grounded neither in the Constitution nor in common sense.

If outright reversal of Roe and Doe is too strong a medicine at this juncture for Chief Justice Roberts and[…] Justice Alito, they should at least take a first step toward undermining the definition of “health” in Doe. Simply eliminating it, or even limiting the meaning of this term to truly significant, physical threats, would invest real meaning in Roe’s purported support for protecting the unborn in the later stages of pregnancy. This is where the Court could find common ground with the good moral sense of the vast majority of the American people. It would be a good start.


About Author

G. Tracy Mehan, III, is a former Assistant Administrator for Water at the U.S. EPA, in the Bush administration. He is a consultant in Arlington, Virginia, and an adjunct professor of law at George Mason University School of Law.