January 22nd marked the 40th anniversary of the landmark Supreme Court decision Roe v. Wade. I want to discuss how Roe was decided and what guidance might the decision give us four decades later. It’s important to consider that the sort of debate among and between the justices that took place during Roe deliberations could show how we might solve other contemporary culture war issues. But we ought not rest easy because the rights affirmed under Roe have been subject to numerous vicious attacks in the past few years.
The decision and the debate among justices before the 7-2 majority decision was written are together a paragon of deliberative democracy, which is the key to fixing our partisan problems in government.
While deliberating, Supreme Court justices (and their clerks) attempt to form coalitions with each other to reach a majority. But they do not endorse decisions as a compromise or a modus vivendi. Rather, Supreme Court justices are tasked with a narrow charge of applying existing law to the facts of a case. They do not reach agreement because they value compromise itself, but rather they accept or reject a juridical argument on its own merit. This is not primarily for personal reasons, but for publicly acceptable ones.
The Court is tasked with resolving “the issue by constitutional measurement, free of emotion and of predilection” (Roe 117). In Roe, Justice Blackmun, who wrote the Court’s decision, cites Justice Holmes’s dissent in Lochner v. New York (1905), in which Holmes writes, “‘[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States’” (Roe 118). Justice Holmes’s dissent makes the case for setting aside our personal beliefs—religions, morals, philosophies— and making decisions on publicly justifiable reasons we reasonably think others might accept. Ideally, this is how the Supreme Court works and it is how discussions between citizens on important issues ought to work.
Indeed, Blackmun begins by acknowledging the “sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires” (Roe 117). But it is because of the sensitive nature and the vigorous opposing views that we must offer one another publicly acceptable reasons for endorsing a view. Unless our goal is a shouting match, we cannot hope to convince one another solely on our personal opinions.
In Roe, the Supreme Court ruled that a Texas anti-abortion law unconstitutionally violated the right of privacy, which has long been held as a right protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Blackmun wrote it is state laws like that “that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy … [are] violative of the Due Process Clause … which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy” (Roe 165). Nevertheless, the state must weigh two competing interests: the woman’s health and the potentiality of life.
After lengthy deliberation, the Court resolved these two competing interests by involving “medical knowledge and techniques.” It also made determinations by factoring in historical and scientific scholarship, which other citizens could reasonably be expected to endorse. The resolution took the form of the now well-known “balancing test,” which tied abortion’s permissibility with the “viability” of the fetus to survive ex utero, i.e. Abortions performed after ex utero viability (around 24-28 weeks of gestation) would be illegal.
The specifics of the balancing test are not important to us here, but the decision is an example of how true democratic debate might play out. In deliberation, private opinions must be set aside and cases must be decided upon based on the constitutionality of a particular issue. Justices may have discussed the religious concerns and controversies and the social climate, but ultimately the decision was justified on public constitutional grounds. This is the only way to create sound judicial decisions, which become law of the land and under which we all must live.
This kind of deliberation among citizens about public policy, free from messy private opinions, could inspire renewed trust and a greater connection between citizens and their government. Productive dialogue could lead to consensus about issues in the same way justices deliberate: not for the sake of compromise, but for the reasons on their own merits. These popular decisions would be much more endorsable and policy and government would be more legitimate.
Though Roe is a great example of the stability and legitimacy public reason can lead to, the right to comprehensive reproductive healthcare that Roe affirmed has been under threat since 1973.
In 1965, illegal abortions constituted 20% of all pregnancy and childbirth-related deaths, while today that number has shrunk to 0.3%. Roe has saved lives. However, celebration of Roe’s 40th must be measured. We live in an age in which elected members of national government and nearly every GOP presidential primary candidate often discuss passing legislation that would curtail the freedoms guaranteed to women under Roe. Access to reproductive health care is crucial to women’s equality. How can women be equal if they are not able to make their own medical decisions with advice from their doctors? These politicians seek to limit the access to birth control and other forms of contraception that are essential to women’s health.
In fact, last year brought the greatest assault on women’s reproductive health since 1973. Thirty states passed a total of 135 abortion restrictions, according to Bloomberg. These include the imposition of mandatory waiting periods that shame women away from potentially life-saving procedures, the forced closure of abortion clinics that do not comply with arbitrary regulations, and the allowance of employers to deny coverage of abortion in health care plans. Anti-choice activists have chipped away at countless crucial reproductive freedoms over the years.
Women’s reproductive health care is at risk. We cannot take the 40th anniversary of Roe v. Wade for granted. We must remember that it was decided on public grounds, acceptable to citizens regardless of their personal moralities, philosophies, and religions. Go to www.roeishereforgood.org to learn more about how to preserve Roe.