“The Roe v Wade framework cannot be supported… It is on a collision course with itself.” — Justice Sandra Day O’Connor, Akron dissent
Most people think that Roe v Wade is what legalized abortion in America. But that’s not quite true. In fact, Justice Blackmun’s Roe decision is essentially a self-contradictory and rambling discussion of pregnancy, history and medicine, but without definitive clarity. Legal scholars on both sides of the issue are in agreement about that.
The guarantee of “a woman’s right to choose” is an iconic premise that is explicitly denied in Roe v Wade! (It was the companion decision handed down the same day, Doe v Bolton, that empowered abortionists with the right to choose whatever decision THEY thought best. It was this new empowerment of legalized medical-killing that opened wide the door for abortion-on-demand. It initiated the ongoing destruction of the medical profession which we are witnessing today. Human abortion was normalized, but the violence done to the medical profession that day is the often-overlooked legacy of Jan. 22, 1973.
It is routinely – and falsely – repeated by media commentators, that, ‘a woman’s right to choose’ is the summation of Roe v Wade, and yet, as you will see, this idea is expressly repudiated in Roe. (“The right to privacy does not extend to include a right to do as she wishes with her body,” and, “a woman’s constitutional right to an abortion is not absolute.” Roe 410 US 189)
Simply put: wise lawyers on all sides of the issue will not defend Roe. They know that no legal basis for the ruling exists and therefore, this “settled law” decision cannot possibly be legally explained or justified. It does not, and cannot make legal sense.
For example, abortion-advocating legal scholars like Alan Dershowitz, and Cass Sunstein, acknowledge the ruling’s failure to stand on its own merits. Furthermore, progressive law professor Laurence Tribe, who supports ‘the right to choose abortion,’ admits that “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
And Edward Lazarus, who was a law clerk to Justice Blackmun and, “loved Roe‘s author like a grandfather,” confessed that, “as a matter of constitutional interpretation and judicial method …. Justice Blackmun’s opinion provides essentially no reasoning in support of its holding…no one has produced a convincing defense of Roe on its own terms.”
It is only in the context of understanding the true lack of legal foundation in Roe that one can see the real significance of its companion decision, Doe v. Bolton. Indeed, many in the public square and in the broader cultural discussion are unaware that the two decisions were linked and released in tandem.
In Doe v Bolton, Justice Blackmun switched legal themes entirely. The focus is not on stages of pregnancy or the woman. Instead, he focused on the individual who is about to perform the abortion. In other words, Doe v Bolton was essentially written for ‘the doctor,’ not the pregnant patient. The woman is not even an object. She is essentially an indirect object of the abortionist’s purposeful goal: killing the child in utero.
In his ramblings in Roe v Wade, Blackmun actually established ignorance as his essential predicate. Modern science and hence modern law are simply, ‘unable to determine when life begins.’ But he is explicit and direct in the Doe ruling: the state’s interest in protecting life is deliberately downgraded (Doe, 410 US, 191). As a direct result, the Hippocratic stricture against killing and to “do no harm” – the clear moral imperative guiding physicians over millennia – is in Doe summarily dismissed. In Roe, Blackmun merely questioned the Oath’s origins and opined on its significance. In the Roe narrative, Blackmun, with the agreement of a concurring court, opines over the foggy mists of history. He ‘sets up’ what that lack of clarity means for pregnancy and the law.
But that is a merely a verbal set-up. It is in Doe he executes with clarity.
The Hippocratic Oath was replaced with a new, elastic understanding of “harm.” It goes far beyond medically indicated conditions and previous social norms. It may now include the condition of pregnancy itself, and any purported psychological impact. There need be no ‘hard cases’ of danger to the mother or ‘problems’ with the child. The pregnancy itself could be defined as “harmful” by the attending physician, with abortion as the medical remedy that would restore the patient back to “health.”
Roe had offered many social factors to color Blackmun’s definition of the ‘health’ of the mother. They are stated in gauzy terms and ‘gestalt’ social concepts. But in Doe, these now are a suddenly-tangible tool to justify the abortionist in his deadly, surgical act. At any time in a pregnancy, psychological and societal questions could be the determining factor in the abortionist’s decision whether a baby lives or dies. No physical, medical conditions need be present. (Doe, 410 U.S. 191)
In combining Doe with the confusing meanderings of the Roe decision, Justice Blackmun cleans up what he had quietly admitted to others was an arbitrary, pregnancy-stages, trimester framework. In Doe he cuts through the fog. He makes the physician judge, jury and executioner. Most significantly he declares his real goal as he challenges all legal and medical precedents with these decisions. It is to, “protect the physician from any shadow of possible prosecution.” (Doe, U.S. 191)
Clearly, and by all serious accounts, pregnancy and abortion were conflated and irresponsibly dealt with in Roe. What’s more, Doe went where no court had ever gone before. Doe granted physicians the right to use their profession to deadly effect and as they personally saw fit. It may come as a surprise to some on the left, but the late Associate-Justice Ruth Bader Ginsburg, a strident feminist and abortion-advocate, strongly agreed with this analysis.
In 2013 Justice Ginsburg openly faulted the Supreme Court’s approach for simply being, “about a doctor’s freedom to practice his profession as he thinks best…. It wasn’t woman-centered. It was physician-centered.”
It is the quietly employed, largely unexamined, Doe decision that is responsible for the implementation of America’s out-of-control abortion practices.
Yes, abortion-on-demand was permitted via Roe and Doe. A deadly ‘choice’ was indeed authorized on that cold day in January of ’73. But the ‘choice’ was not for whom you thought; the death of babies not the only victims. The deadly wound to society’s regard for the vulnerable, and the assault on the character of a noble profession has only continued to bleed out since that day. Without the Oath, doctors now have no boundaries. Three-thousand years of ethical guidance which was there to protect the most vulnerable of society, gone.
Women were not ‘empowered’ in these ‘twin decisions.’ Physicians were monstrously super-powered.