January 22, 1999, marked the 26th anniversary of the case of Jane Roe vs. Dallas County District Attorney Henry Wade. Those on both sides of the abortion question continue to further their case by fanning history's flame of this most famous and influential case. As I consider my contribution to this debate, I continue to question whether the people I hear yelling the loudest have ever read the landmark opinion. It would seem that if one was to espouse the position of intellectual and moral superiority, it would help to first know the facts. Therefore, for those who do not have the time nor inclination to sit down and read 53 pages of legalese accompanied by 85 lengthy footnotes, let me summarize the case's highlights in four columns or less.
The official case cite is 410 US 113, 35 L Ed 2d 147, 93 S Ct 705, reh den 410 US 959, 35 L Ed 2d 694, 93 S Ct 1409. The case was argued to the United States Supreme Court on December 13, 1971, reargued on October 11, 1972, and decided January 22, 1973. Mr. Justice Blackmun delivered the majority Court's opinion.
The case involved a set of 1854 Texas statutes that made it a crime to "procure an abortion" except with respect to "an abortion procured or attempted by medical advice for the purpose of saving the life of the mother." The statutes, cited as Articles 1191-1194 of the Texas Penal Code, provided for a punishment of confinement in the state penitentiary for five years to life. While not discussed in the body of the opinion, footnote 1 recites a portion of the statute that provides for the charge of murder if the mother dies as the result of an abortion or attempted abortion procedure. 35 L Ed 2d at 157.
There were originally three plaintiffs. Jane Roe was an unmarried, pregnant woman who wished to terminate her pregnancy. She was unable to get an abortion in Texas because she did not have a life-threatening pregnancy and was too poor to travel to another state. Ultimately, the Court found Ms. Roe had a right or legal standing to sue.
The second plaintiff was James Hallford, M.D. who had previously been arrested for performing illegal abortions and had two pending charges against him. He claimed because of the statute's vagueness, he was uncertain whether he was violating the law when he performed abortions. The third plaintiff was a married but childless couple referred to as John and Mary Doe. Mrs. Doe suffered from a disease in which a future pregnancy would put her health at great risk. At her doctor's advice, she discontinued the pill for medical reasons. The Doe's claimed an abortion would be necessary if she ever got pregnant in the future. For various reasons, the Court threw out the claims of Dr. Hallford and the Doe's.
The Court then spends the next 10 pages summarizing the history of abortion. While the Court notes criminal abortion laws are relatively recent, it starts with a discussion of the abortion practice of the ancient Persian, Greek and Roman Empires. Next, Justice Blackmun focuses on the medical profession's long standing ethical guide referred to as the Hippocratic Oath. He identifies the various translations of the original text, and determines the following as accurate: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion." 35 L Ed 2d at 165. The Court further notes that despite Hippocrates' position, it may have represented a small minority segment of the ancient Greek medical community. With the emergence of Christianity, the Oath gained popularity and soon became the "nucleus of all medical ethics." 35 L Ed 2d at 165.
The majority opinion continues by summarizing the common law, which is that body of law developed through the judicial, instead of the legislative branch of government. Specifically, the Court focused on non-criminal abortions occurring before "quickening," which is defined as the first recognizable movement of the fetus in utero, usually appearing between 16 and 18 weeks of pregnancy. 35 L Ed 2d at 165.
From there, the Court covers the English statutory law, American law and then summarizes the historical positions of the American Medical Association (A.M.A.), American Public Health Association and the American Bar Association. In 1871, a report was submitted to the A.M.A. by the Committee on Criminal Abortion. In a resolution adopted by the A.M.A., the committee recommended it "be unlawful and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child--if that be possible," and calling "the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females--aye, and men also, on this important question." 35 L Ed 2d at 171.
The Court then identifies three reasons that formed the basis for the underlying 19th century criminal abortion laws. The first is the "Victorian social concern to discourage illicit sexual conduct." Since Texas was not asserting that rationale, the Court dismissed it. The second reason had to do with the danger of the abortion procedure and the protection of the pregnant woman from the life threatening procedure. The Court confirmed the State's definite interest in protecting women from the illegal "abortion mills." The third rationale was the State's duty in protecting prenatal life. 35 L Ed 2d 174-176.
Justice Blackmun next addresses the Constitutional issue, which is possibly the most controversial aspect of the Court's opinion. While admitting there is no mention of any right to privacy in the Constitution, the guarantee of certain "zones of privacy" was recognized under numerous provisions of the Bill of Rights. The majority Court then proceeds to identify seven harmful effects the criminal abortion statute would have in denying a pregnant woman's choice to have an abortion. These "detriments" include: "Maternity, or additional offspring, may force upon the woman a distressful life and future . . . Mental and physical health may be taxed by child care . . . distress for all concerned" and finally, "the additional difficulties and continuing stigma of unwed motherhood." 35 L Ed 2d at 177. The Court then states, "the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation." 35 L Ed 2d 177, 178.
Next, the key issue of the fetus as a person is addressed. The Court confirms, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life is then guaranteed specifically by the (Fourteenth) Amendment." 35 L Ed 2d at 179. The majority Court holds that since the Constitution does not define "person," any mention of the word has only postnatal application. Therefore, the Fourteenth Amendment's use of the word "person" does not include the unborn. The Court then makes the following now often repeated statement: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." 35 L Ed 2d at 181.
Finally, the majority Court concludes by stating the Texas statute does not violate the Due Process Clause of the Fourteenth Amendment. It then identifies the State's regulatory interest in each of a woman's three trimesters. The majority opinion is followed by Justices Burger, Douglas and Stewart writing separate concurring opinions, while Justices White and Rehnquist present the only two written dissents.
Now you know Roe. Where do you go from here? Webster's defines anniversary as "the annual recurrence of a date marking a notable event." A notable event by its very essence requires a response. Your reply may be to observe it in the same fashion as the years past. It might mean you reconsider your celebration. However you respond, remember that history is merely the culmination of specific choices of those who precede us.
While we cannot avoid history's influence, we must recognize our future is not irreparably set by our past. Therefore, let us go forward with a purpose that acknowledges our responsibility for today's choices that become the history for those who follow.