Wednesday, January 11, 2017


[Note: This blog (version 16-12-25) substantially revises an earlier one on this topic.]

The prospects for Constitutional protection of a woman’s right to choose (understood hereafter: or not choose) to have an abortion are promising for opponents and perilous for supporters of Roe v. Wade.  Justice Henry Blackmun’s 1973 majority opinion has failed to persuade many in the legal community that it is solidly grounded and soundly reasoned.  Its inadequacies have provided the means to complicate the issue and make it conflict-prone ever since.  Its history has been a tangle of medical, administrative, or financial laws or regulations restricting the right or its exercise at the state level, and requiring judicial affirmations, revisions, or reversals at all levels of state or federal judicial systems.  Intensified efforts to erode the decision and increased odds of judicial nominations picked to reverse it put Roe v. Wade and abortion rights at great risk.

One understandable response by advocates to this growing threat has been to rally in support of Roe v. Wade.  For over 40 years, it has been the guardian of abortion rights and a symbol of women’s liberation.  As such, it is not easily abandoned.  However, the current situation argues that the time has come to re-think the basis of abortion rights, first by critiquing the deficiencies and defects of Blackmun’s opinion, then by identifying a strategy to counter the arguments of its judicial, political, and religious opponents.

The abortion conflict has been a struggle on many battlefields between those arguing and acting on political convictions and those arguing and acting on religious convictions.  But this political-versus-religious divide is a false dichotomy.  Abortion is a religious matter of belief and practice, inherently a matter of conscience.  Advocates of abortion rights could attract support and disarm anti-abortion opposition by arguing that the right to religious freedom protects abortion rights.  They would force opponents to argue the supremacy of their religious convictions and, by court decision or state legislation, the right to impose their convictions on others.  Accordingly, this paper urges that advocates shift their reliance from the privacy argument of Roe v. Wade to an argument based on freedom of religion and from an establishment of religion under the First Amendment.


Blackmun’s majority opinion summarizes the legal, medical, and religious histories of abortion, with accounts of historical practices worldwide, English and American legal and medical traditions, and philosophical and religious beliefs, but makes little use of them.  On the one hand, his opinion, noting decisions discovering a right to privacy in various Constitutional amendments—First, Fourth, Fifth, Ninth, and Fourteenth—regards the Ninth and Fourteenth sufficient to ensure a woman’s right to choose an abortion.  On the other hand, his opinion limits a woman’s privacy-based right by a state’s right to protect the increasing “potential for life.”  Blackmun defines this “potential” by a trimester division of pregnancy (weeks 0-12, 13-28, 29-40) reflecting the then-existing knowledge of unborns’ development and their ability to survive outside the uterus at various stages of gestation, or their viability.  His opinion thus asserts both a woman’s right and a state’s right—with the result being unending attacks on or defense of Roe v. Wade and inflamed conflicts between women and many state governments.

Blackman’s opinion has major defects.  One, it disregards the acknowledged diversity of philosophical and religious beliefs defining life and its beginning.  Blackmun writes:

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....[All Jews and many Protestants have given] strong support for the view that life does not begun until live birth.

Obviously, the judiciary should not speculate about the answer; equally obviously, it should not stipulate one.  But it does, by commingling two distinct issues.  The first is a matter of religion: when does life begin—at conception, at quickening, at breach; the second is a matter of medical science: when is life ex-utero possible, and is the possibility independent of medical support or dependent on medical intervention.  Without offering an explicit rationale, Blackmun prefers the answer of science to the answers of religion.  His preference apparently reflects an assumption that the definition of medical science can provide a reasonable response to irreconcilable religious differences about abortion.  This assumption is wrong.  Scientific definitions of the beginning of life are stipulations serving scientific methodology, not setting standards for deciding non-scientific issues.  And his preference, far from being reasonable, implies coercion.  Since any scientific answer to this religious question corresponds to the religious convictions of only some, not all, women, invoking science as the standard presumes to tell other women that it properly dictates how their religion should define the beginning of life.  Blackmun’s preference thus agrees with one Christian definition of the beginning of life, disregards definitions held by other Christians and all Jews, and imposes one sectarian Christian standard on those Christians who believe that life begins at other stages of gestation and on all Jews, who believe that life begins at breach.

Two, Blackmun’s opinion is flawed by his resort to viability, a medical condition with little history in law or medicine.  Until the advent of modern medicine in the early 20th century, viability did not concern theologians and lawyers, not to mention politicians, because unborns removed from the uterus or delivered before full term rarely survived.  However, once modern medicine enhanced their chances of survival, everyone assumed that what science made possible, society should accept as an answer to a contentious religious question or at least as common ground for dismissing it.  So most theologians, lawyers, and politicians, knowingly or not, made viability part of traditional Christian discussions determining at what point, conception or quickening, unborns attain the status of life, acquire religious endowments, and require or deserve legal consideration.  The resulting enactments or decisions may accord with majority views, but they ignore the religious beliefs and practices of others and thereby establish a necessarily religious standard of some which violates the religious convictions of others.

Yet viability is an unreliable and dubious standard.  Blackmun’s trimester division of pregnancy was a rough approximation of the conditions of viability.  However, advances in medical science extend the conditions and thus move the boundaries of his division.  Wherever the boundaries are, this shifting standard assumes that medical science, not philosophical or religious belief, should be the basis of abortion rights.  Thus, this medically based trimester entails controversy and conflict, and enables legal challenges based on any claim, scientific or not, sectarian in motivation or not, which raises medical issues.  Ironically, for the religiously motivated, the earlier the viability, the greater the reliance on artificially assisted as opposed to naturally assured survival ex utero, with science in the role of life-giver, a role which they would otherwise assign to God. 

Three, Blackmun’s opinion assumes that the viability of the unborn gives the state an interest “in protecting the potentiality of human life” or the “potential for life.”  This phrase has several deficiencies, not the least of which is a contradiction.  On the one hand, it implies that the unborn is a life, not in utero, but only after delivery, when the “potential” becomes actual.  On the other hand, it treats the potential life in utero as if it were actual life.   It assigns the unborn the status, not recognized in Constitutional law, of a person entitled to the protection of the state.  Although he assumes and repeatedly asserts this potential-is-actual-life equation, Blackman neither specifies the sources, nature, or magnitude of that interest, nor justifies it by balancing state and individual rights over the period of the pregnancy.  He assumes that the state’s right increases during the pregnancy as the “potential for life” increases and thereby allows increasing restrictions on abortions.  He does not assess the woman’s interests or concerns during her pregnancy, especially under changing circumstances or conditions.  Moreover, since most women, whether of faith or not, increasingly desire to protect their unborn over time, and since most religions specify increasingly stringent guidelines or standards for abortions, the legal concern for the “potential for life” is superfluous—one more reason to question the justification of a state interest or the necessity for state intervention.  Ironically, his opinion, so far from protecting a woman’s right provides the means for negating it.

The effect of Blackmun’s majority opinion has been to pit the state’s power to regulate abortion against the woman’s conscience to choose an abortion.  It has enabled a growing number of states to regulate the right of women almost out of existence.  Many are attempting to regulate any aspect of abortion—medical procedure, clinical setting, administrative arrangements, or financial requirements—which impede or eliminate the ability of women to have an abortion if they choose to have one.  The cynical fiction to justify medically or clinically unnecessary and sometimes dangerous, administratively cumbersome, or financially onerous regulations is women’s health.  Although abortions are safer for women’s lives and health than induced or even natural deliveries of the unborn are, these facts count for little in the enactment of religiously or politically motivated restrictions on abortion. 


Any thoughtful discussion of abortion addresses the relative weights of individual rights and government responsibilities in the context of federal and state laws, case law, and the amended Constitution as interpreted by the Supreme Court in light of changes in social circumstances, political conditions, and legal thinking.  Underlying many state and federal cases are two fundamental questions:  One, does a pregnant woman have the sole right to choose whether to have an abortion at a time of her choosing.  Two, if not, what grounds give the government a role in that choice?  For, in virtually all other matters of personal health and medical care, the individual has the sole right to choose or refuse treatment or specific treatments, or to delegate those decisions to another person.

Admittedly, government has a right to deny individual choice in some circumstances to protect the public.  It can require health procedures like vaccination or quarantine to protect the public because carriers of transmittable diseases jeopardize the health or life of others.  But abortion is not “catching”; one woman’s abortion cannot induce abortions in other pregnant women.  By ordinary standards applicable to medical decisions, no public health interest justifies government regulation of abortion.

Government can also prescribe or proscribe medical procedures or medications to protect patients from unreasonable risks to health or life.  Because abortions are safer than natural or induced births, they require no regulations essentially different from those of other approved and comparable medical procedures to protect patients.  Special regulations curtailing abortions address no unreasonable medical risks to women.  Again, by ordinary standards, no abortion-specific medical reason justifies a government limit on or denial of a woman’s choice to have an abortion.

Blackmun’s claim of a government interest in the “potential for life” is a novel one.  It bears no relationship to the conventional government interests in public health and patient protection.  Indeed, it shifts the focus of legal consideration from the woman to the unborn, with all of the problems which that new consideration involves, as noted above, and others.  For one, if laws to prevent abortions departed from precedent by defining the unborn as persons entitled to the protection of law, they would not likely apply in all cases.  For instance, if the unborn threatened the mother with death or great physical or emotional harm during gestation, the mother would presumably have the right of self-defense by having an abortion.  This novel claim seems more a judicial juggling act and a political sop to the states—and, we now know, a failed one—than a sensible legal decision.  Blackmun might have meant to offer a compromise, but it effected a legal muddle and perpetuated a political and religious controversy.  The lesson should be that halfway Constitutional decisions settle no issues and satisfy no one.


America’s religious pluralism means that its religions have different definitions of the beginning of life.  State and federal courts should have recognized that controversies over abortion were religions controversies, however opponents couched their arguments.  Advocates of a woman’s right to choose to have an abortion have inclined to talk of political rights; opponents have inclined to talk about religious values.  Both meet in one and the same place: the First Amendment.

Blackmun’s opinion is perverse in its response to religious issues.  First it recognizes, then it rejects, different religious definitions of the beginning of life, as the quotation above shows.  It is puzzling in its amnesia about or avoidance of the First Amendment to issues relevant to freedom of religion and freedom from an establishment of religion.  His opinion should have realized that these religious definitions could serve as a solid basis for finding that a woman’s right to choose to have an abortion is a right guaranteed directly by the First Amendment.

What is wanted is a replacement of Blackmun’s opinion in Roe v. Wade, in any decision on a woman’s right to choose an abortion, with an opinion which refers directly to, is not inferred from, the Constitution.  Roe v. Wade moves from “penumbras” in several Constitutional amendments to a right of privacy to a woman’s right to choose to have an abortion.  The replacement opinion should be clear and clean in moving from the First Amendment to a woman’s right.  Such a clear statement denies federal and state governments from imposing any restrictions on abortions different from comparable medical operations.  The result might be reduced, if not eliminated, clutter of irrelevant arguments about real or bogus medical science and congestion of partisan cases in federal and state courts.

Again, the fundamental question about abortion is a political one; who decides—the woman or the government?  The struggle over the answer to this question is one skirmish in the larger conflict between those who prefer theocratic government to a Constitutional democratic in matters of faith and morals.  To the degree that government decides any aspect of a woman’s choice about abortion, it tips toward theocracy; to the degree that the woman decides, it tips toward democracy.  These are the ultimate stakes in the debate about abortion.

 In American democracy, with a religiously pluralistic society and First Amendment guarantees against an establishment of religion and for freedom of religion, no level of government has a legitimate role in a woman’s decision about abortion.  Since her decision is a matter of moral or religious conscience, no democratic government has a right to restrict an abortion at any stage in her pregnancy, to compel medical tests or procedures, to mandate medical information, or to require doctors to take into account anything other than her particular needs.  The fundamental questions are simple ones; an analysis of the main considerations leads to equally simple answers.

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