Legal Criticism & Unsettled Precedent: Judicial & Scholarly Criticism of Roe v. Wade (Part 2)

The starting point for understanding Roe is understanding its practical legal impact on abortion law in America and on the states more specifically. What we know as Roe v. Wade is actually two cases, Roe v. Wade from Texas and Doe v. Bolton from Georgia (hereafter described together as “Roe”); they were “companion cases,” reviewed, heard, and decided together, and explicitly intended by the Court “to be read together.” Indeed, Roe and Doe must be read together—which too few have done—to understand US abortion law today. The Court in Roe held that there is a right to abortion up to fetal viability and that the states could prohibit abortion after fetal viability “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Doe added a significant “health of the mother” exception that is often overlooked. The Justices defined health as “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” Thus, “health,” in abortion law, includes emotional well-being without limits. Where Roe prevented any prohibition of abortion before fetal viability, the Doe “health” exception eliminated State prohibitions after viability as well. Together, they created a sweeping right to abortion, for any reason, at any time of pregnancy, in all 50 states.

Another way of reading Roe that confirms this expansive scope of abortion even after fetal viability is that the Court gave broad “discretion” to physicians to use their “judgment” to perform abortions. The Court has repeatedly spoken about the “discretion” that the States must leave to physicians for any abortion, at any time of pregnancy. That “discretion” includes the authority to decide whether any Doe health reason exists for an abortion up to birth. Roe and Doe were sweeping decisions.

As Harvard law professor Laurence Tribe wrote in 1973, “in Roe v. Wade and Doe v. Bolton, when the Court had its most dramatic opportunity to express its supposed aversion to substantive due process, it carried that doctrine to lengths few observers had expected, imposing limits on permissible abortion legislation so severe that no abortion law in the United States remained valid.”

A decade after Roe, legal historian Lawrence M. Friedman wrote, “Roe v. Wade belongs to a very select club of Supreme Court decisions—those that sent shock waves through the country, affecting every aspect of political life…[I]n one bold, cataclysmic move the Court undid about a century of legislative action. It swept away every abortion law in the country.” Joseph Dellapenna, the foremost historian of abortion law in the Western World, noted of Roe: “The Supreme Court’s haste to decide these cases…imposed a more extreme approach to abortion on the United States than is found in almost any other nation.”

Supreme Court Justice Ruth Bader Ginsburg was a modest critic of the scope of the Roe decision before she joined the Court, writing in 1992 after the Casey decision:

Suppose the Court…had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court’s splintered decision in Planned Parenthood v. Casey?

But once on the Court, Justice Ginsburg sought to expand Roe’s scope to eliminate any limit on abortion and to sink Roe permanently in constitutional concrete, as reflected in her dissent in Gonzales v. Carhart and concurrence in Whole Woman’s Health v. Hellerstedt.

As Harvard law professor and comparative constitutional scholar Mary Ann Glendon showed in Abortion and Divorce in Western Law, “If we were to broaden our field of comparison to include the seven Warsaw Pact nations, we still would not find any country [in Europe] where there is so little restriction on abortion in principle as there is in the United States.” As Glendon observed:

Doe’s broad definition of “health” spelled the doom of statutes designed to prevent the abortion late in pregnancy of children capable of surviving outside the mother’s body unless the mother’s health was in danger. By defining health as “well-being,” Doe established a regime of abortion-on-demand for the entire nine months of pregnancy, something that American public opinion has never approved in any state, let alone nationally.

Professor Dellapenna agreed with Glendon, commenting, “By 1987…[t]he Supreme Court was firmly committed to one of the most open approaches to abortion found anywhere on the planet.”

A number of federal courts have invalidated legislative limits on late term abortions due to the Doe v. Bolton definition of “health.” Federal courts have also invalidated 20-week limits on abortion based on the conclusion that the viability rule of Casey is categorical. And the Court has persistently bypassed the specific question of the application of the Doe health definition after viability or whether any prohibition on elective abortions before viability is permissible, until this term’s Dobbs v. Jackson Women’s Health Organization.

Despite that Roe and Doe may be among the most consequential Supreme Court decisions of the twentieth century, they were based upon a near-absolute dearth of facts and evidence to support them or to guide the Justices in their decision-making. Roe and Doe were decided without any trial or evidentiary proceeding in the federal district courts, since both cases were decided on motions to dismiss or for summary judgment. There was no intermediate appellate review; the cases were appealed directly to the Supreme Court. They may thus be the worst examples of the Supreme Court relying on unsubstantiated “amicus facts” to decide major questions of constitutional doctrine that have had a significant, enduring impact on the law, the Nation, and the Supreme Court. And the problems with Roe and Doe are directly attributable to the procedural irregularities, the lack of any factual or evidentiary record, and the Court’s reliance on assumptions and factual claims that were not part of the record but presented to the Court through the briefs of advocacy organizations for the first time on appeal in the Supreme Court.

The Court later acknowledged in Akron v. Akron Center for Reproductive Health and Casey that Roe was based on factual “assumptions,” specifically mentioning the Court’s assumption that abortion in the first trimester was just as safe as normal childbirth. One of the most respected federal judges in America during the 1960s and 1970s, Henry J. Friendly, was one of the few who noted how the Court had issued the Roe decision without an evidentiary record.

Abuse of Discretion: The Inside Story of Roe v. Wade evaluates the Court’s internal deliberations in 1971–1972, leading to the Roe decision of January 1973, and highlights the historical, medical, legal and procedural errors made by the Court. The book specifically analyzes the personal papers of eight of the nine Justices who voted in Roe and Doe, which illuminate the issue. In regard to the procedural errors, the Court “abruptly dispos[ed] of a number of difficult preliminary orders” and “brushed aside serious problems of federalism, mootness, and standing.”

The two rounds of oral arguments in 1971 and 1972 left serious questions unanswered. Some of the seven justices who first heard Roe and Doe in December 1971 saw these problems and sought to circumvent them. Justice Brennan, in a memo to Justice Douglas on December 30, 1971, raised the question: “there would seem to be a number of threshold issues that are of varying difficulty. Some, I think, must be expressly addressed, while others perhaps require no discussion or should be simply finessed. None in my opinion, forecloses decision on the crucial question here—the existence and nature of a right to abortion.”

The Court brushed over (“finessed”) serious questions of justiciability and of procedure and evidence. First, the concept of viability was not presented to the Court. It was not a factor in either the Texas or Georgia laws. No party or amicus urged the Court to adopt a viability rule or tie an abortion right to viability. The word “viability” was not mentioned once in four hours of argument in December 1971 and October 1972.

Second, the Justices brushed aside the lack of evidence regarding whether Mary Doe in Doe v. Bolton was a real person, the medical reasons for her abortion, and whether she was permitted one under Georgia’s 1968 abortion reform law. Though the Court never knew it, that had real consequences: even before the district court ruled in her case, Sandra Cano, Mary Doe of Doe v. Bolton, told her attorney, Margie Pitts Hames, she no longer wanted to have an abortion or to go ahead with the case after she felt her baby kick during her pregnancy. Hames ignored her and proceeded with litigation. During argument before the Supreme Court, Hames told the Justices that Doe was unable to have an abortion due to poverty. This raises the question, was Cano an adequate representative of the class of women in that class-action litigation?

Another procedural problem with Roe was that it allowed facial challenges to abortion laws—suits challenging the laws in toto (on their face, in their entirety) and not—as is usual in most constitutional litigation outside of First Amendment law—as-applied, to the application of the laws. Facial challenges ease the burden on abortion clinics to challenge abortion laws and ease the burden on judges to thoroughly assess the facts. Facial challenges have also obscured the safety record of abortion clinics and of providers bringing suit.

Make sure also to read part 1 and part 3 of this blog series.

Clarke Forsythe is senior counsel with Americans United for Life and author of Abuse of Discretion: The Inside Story of Roe v. Wade. This post first appeared on AUL’s website.