Of course, the idea that doctors, philosophers, and theologians would ever reach a “consensus” about the definition of life is ridiculous, which is the reason that Blackmun should have heeded his own advice and refrained from including an explicit definition in his opinion. As Justice Holmes argued with his “Marketplace of Ideas,” it is ultimately the role of the majority, via their elected State legislatures, to determine the moral codes in their own communities. Further, Blackmun’s imposed definition of life is clearly flawed; both the point of viability and the point at which abortion mortality outweighs morality in childbirth will change as technology progresses, which illustrates another reason for judicial restraint. While the decisions of the Supreme Court are intended to establish relatively immutable precedent, State laws are more changeable, allowing for legislative experimentation. Not only do I find Blackmun’s definition of life problematic, I think that he overstepped the bounds of his role as a Judge by imposing the first trimester standard, rather than simply ruling on the constitutionality of Texas’s law. I agree that States have a compelling interest “in safeguarding health, in maintaining medical standards and in protecting life,” but enacting this legislation is the right of the State government. The only role a Justice should play is determining whether a state law that limits individual rights is based on a reasonable public interest.
That being said, the more essential issue in Roe v. Wade is the existence of a constitutional right to abortion. In his article “Dissenting Opinion,” scholar Jeffrey Rosen uses the four conventional methods of constitutional interpretation– constitutional text, original intent, evolving traditions, and precedent— to debunk Blackmun’s opinion, concluding that “no broad right to abortion can be easily discerned” (171). While I like Rosen’s point that the Court should have deferred to the States instead of agreeing to hear the case, I disagree with much of the reasoning he uses to dismiss Blackmun’s constitutional argument. Both Rosen and Blackmun begin by acknowledging that there is no direct constitutional reference to abortion, or to privacy for that matter; both accept that, despite this, the right to privacy is implied by the constitution. This right is found in the first, third, fourth, fifth and fourteenth amendments:
- First—prohibits the federal government from interfering with an individual’s rights to his own thoughts, beliefs and speech.
- Third, Fourth, and Fifth—prohibits the government from intruding on an individual’s private property, including his own person.
- Fourteenth— prohibits the State government from interfering with individual’s right to life, freedom and property
I’m generally very wary of substantive readings of the constitution, but I think that privacy is fundamentally different from many of the rights that have been extrapolated from the text. Both the original intention and “spirit” of the amendments suggest an attempt to protect the individual from undue government interference. If a constitutional right to privacy exists, and both Blackmun and Rosen agreed that it does, I seems to me that it should be extended to include the right to abortion. I can find support for this in the Court’s previous rulings. In Meyer v. Nebraska (1923), Justice McReynolds writes “without a doubt [the liberty guaranteed by the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in occupations, to acquire useful knowledge, to marry, to establish a home, and bring up children, to worship God, and generally to enjoy those privileges long recognized at common law.” Blackmun uses Meyer as a precedent for “general right of individual autonomy in matters relating to bodily security, family, reproduction and child rearing.” While this statement is a little broad, Rosen’s argument that Meyer, which concerned the teaching of foreign languages, only addresses the right to contract is unconvincing. Many of the rights McReynolds lists, such as the right to bring up children, cannot be reasonably related to contracts.
Next, Blackmun suggests that Skinner, which prohibited forced sterilization of criminals, “explicitly expanded the rights guaranteed by Meyer to encompass the right to procreate and have children.” Rosen, operating under the assumption that no common law right to abortion exists, infers that Douglas’ opinion in Skinner is based on a common law right to refuse unwanted medical treatment. Closely related to this supposed constitutional right, it seems to me, is the right of the private citizen to seek desired medical information and treatment without interference from government authorities. This is one of the issues at stake in Griswold; the action in this case was brought against Estelle Griswold, the director of a Planned Parenthood clinic, and Dr. Lee Buxton, a physician. Although the bulk of Douglas’ opinion is based on a fourth amendment notion of “privacy in the home,” the case is also concerned with “right to contract” Rosen asserts in Meyer. If the government has no right to interfere in the “scared precincts” of the martial relationship and bedroom, the same protection should be extended to the doctor-patient relationship and the exam room. The Court eventually affirms this logical extension in Eisenbradt. Rosen’s argument that this case simply strikes down a violation of fourteenth amendment equal protection, ignores the clear language of the decision: “if the right of privacy means anything, it is the right of the individual, married or singles, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” It seems indisputable that this language supposes abortion.