Reversing Doe Would Be a Good Start at Rolling Back Roe

The pronouncements of Chief Justice Roberts on the subject of reversing or substantially modifying Roe v. Wade — the 1973 Supreme Court case establishing a regime of abortion on demand for all nine months of pregnancy — are, shall we say, Delphic if not outright inscrutable.

Health: A License to Kill

Given the man’s obvious judicial integrity and intelligence, not to mention humility, we can be hopeful he recognizes the damage that Roe did to our constitutional fabric and the lives of millions of unborn Americans.

Yet he may decide to deal with the issue of abortion incrementally in order to bring along the country and his fellow justices on the Court in a way which facilitates a gradual return to a constitutional order more akin to that envisioned by the Founding Fathers.

There is an intermediate strategy which the Chief and, hopefully, new Justice Alito, could pursue which would be a good start at returning the nation to a culture of life: reverse the infinitely elastic, overly-broad definition of “health” established by Roe’s evil twin, Doe v. Bolton, handed down by the Supreme Court at the same time.

In both Roe and Doe, the Court decimated the laws of every state restricting abortion, be they strict or lenient, including those based on the American Law Institute’s Model Penal Code. Reading both cases as complementary to one another, they effectively established a license to abort unborn children up to the moment of birth — even when children are partially born.

“Health” Is Everything

This outcome, unrecognized by many Americans and stubbornly ignored or even misrepresented by the mainstream media, resulted from an incredibly wide open definition of “health” as an exception overriding any restrictions or bans on second- or, more drastically, even third-term abortions, post viability, as decreed in Doe v. Bolton. In this companion case to Roe, Justice Blackmun, who wrote both opinions, stated that the “medical judgment [regarding maternal health] may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.”

In Roe, Justice Blackmun had indicated that legislatures were allowed to “prescribe” abortions “subsequent to viability.” But what he gave with one hand, he took a way with the other. That is, Blackmun opined that, in the third trimester, around the seventh month of pregnancy, the state could promote the interest in the potentiality of human life by regulation, even proscription outright, “except where it is necessary in appropriate medical judgment, for the preservation of the life or health of the mother.”

Direct Physical Threats

Read in the light of this expansive definition of health in Doe, Blackmun was really not conceding any ground seized in Roe. It is simply impossible to exclude any rationale for a third-term abortion under this silly-putty definition of health. Potential interruptions to career or college plans, gender selection, financial difficulties, stress — any of these justifications qualify under a health exception encompassing not just the physical, but emotional, psychological, or familial aspects of life.

While polls indicate that many Americans do not want to reverse Roe v. Wade, these same polls indicate concerns with late-term abortions as well as those for reasons other than rape, incest, or a threat to the life of the mother. It would be neither radical nor presumptuous if the Roberts Court were to reverse, or substantially redefine, the definition of “health” by limiting it to direct physical threats.

Such action by the Court would not be a radical departure with the common moral sense of the American people. Rather, it would allow for greater ethical, legal, and political realism in the debate over the humanity of the unborn and the merits of state protection of those interests. It would be consistent with the better angels of our nature.

It would be a good start.

G. Tracy Mehan III served as Assistant Administrator for Water at the US Environmental Protection Agency, 2001-2003. He is a principal with The Cadmus Group, Inc., an environmental consulting firm in Arlington, Virginia.

A longer version of this article originally appeared on National Review Online.

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