241: The Loud and Confused Roe v. Wade, The Quiet but Deadly Doe v. Bolton

Life Matters

Commissioner Johnston knows attorneys who are actively involved in the abortion debate and on both sides of the issue. Many assert a mastery and working knowledge of Roe v. Wade’s intricacies. But honest lawyers will not make any such claim.

Perhaps what is more frightening, he knows many more commentators and reporters who will ‘explain’ the decision at length. The problem is, this ‘well-known’ decision cannot possibly be explained. It does not and cannot make sense.

Even liberal legal scholars like Alan Dershowitz,1 and Cass Sunstein,2 deny its ability to stand on its own merits. Progressive Professor Laurence Tribe is clear: "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."3

Edward Lazarus was a Blackmun law clerk who "loved Roe's author like a grandfather." He wrote: "As a matter of constitutional interpretation and judicial method .... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."4

It is only in understanding this problem of Roe that one can see the real significance of its companion decision, Doe v. Bolton. The decisions were linked and released in tandem. In Doe, Justice Blackmun switches themes entirely. He does not focus on stages of pregnancy or the woman. He now focuses on the individual who is about to do the abortion. Doe v. Bolton, in many ways, is written for ‘the doctor.’

The state’s interest in protecting life is specifically downgraded. The Hippocratic tradition of never harming a human life: dismissed. At any time in pregnancy psychological and societal questions could be the determining factor. No physical medical conditions need be present. (Doe, 410 U.S. 191) Blackmun’s definition of the ‘health’ of the mother in gauzy, ‘gestalt’ concepts, justified a deadly surgical act.

By ‘combining it’ with the confusing Roe decision, he cleans up what he quietly had admitted is an arbitrary, pregnancy-stages framework.5 In Doe he cuts through the fog. He makes the physician’s opinion the arbiter of action.

Known feminist and abortion-advocate, Associate Justice Ruth Bader Ginsburg, has openly faulted the Court's approach for actually being, "about a doctor's freedom to practice his profession as he thinks best.... It wasn't woman-centered. It was physician-centered."6 It is this then, that is the real overarching issue in these decisions: legally-authorized, medical killing.

Pregnancy and abortion were confusedly and ham-handedly dealt with in Roe. But what is crisply and incisively granted to physicians in Doe is the right to use their profession to deadly effect and as they personally saw fit.

The quietly implemented, largely unexamined Doe decision is responsible for the implementation of America’s abortion practices. Three thousand years of ethical guidance had protected the physician, vulnerable patients, and civilized society from the quiet, easy way out: simply kill the human being in question. The temptation to cover mistakes; save money; accommodate coercion; reduce workload on overworked medical staff; abet antsy heirs; cease careful pain management by simply ceasing the life; diminish populations of ‘imperfect’ dependent individuals; all of these utilitarian motives are easily implemented – and quietly so - once there is no external rule or oath to never use medicine to kill.

The Oath had served as the anchoring premise not only for medical doctors, but for society’s view of ‘unimportant’ human lives entrusted to them.

We are now living with the ever-expanding implications of this casual and quiet dismissal of three millennia of medical ethics. As Justice Ginsburg ironically points out, this new, physician’s ‘right to choose’ is actually the only definitive, conclusive aspect of the deadly, twin decisions, Roe v Wade and Doe v Bolton.

1.Dershowitz, Alan. Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford U. Press 2001): "Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)...."

2. Sunstein, Cass. Quoted by McGuire, New York Sun (November 15, 2005)

3.Tribe, Laurence "Roe v. Wade and the Lesson of the Pre-RoeCase Law". Michigan Law Review. 77 (7): 1724–48.

4. Lazarus, Edward. "The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell's Nomination Only Underlined Them, Findlaw's Writ (October 3, 2002).

5. Blackmun’s personal note to fellow justices. Quoted in Woodward, Bob. "The Abortion Papers Archived June 14, 2008, at the Wayback Machine", Washington Post (January 22, 1989).

6.Bullington, Jonathan, (May 11, 2013) Justice Ginsburg: Roe v Wade not woman centered. Chicago Tribune

Brian Johnston is the Western Regional Director of the National Right to Life Committee. His new book, The Evil Twins: Roe and Doe; How the Supreme Court Unleashed Medical Killing will be published by New Regency Publishing and is scheduled for release on April 4, 2021. Pre-orders available at special, pre-order pricing at New Regency, on Amazon and at AuthorStock.

Mr. Johnston is available for comment and remote or in-person speaking [phone])