Vermont Bar Journal
Spring 2008 - #9.
Revisiting Roe: The Language of Privacy and Isolation in U.S. and Vermont Case Law
THE VERMONT BAR JOURNAL #173, Volume 34, No. 4 SPRING 2008
Revisiting Roe: The Language of Privacy and Isolation in U.S. and Vermont Case Lawby Emily Blistein, Esq."The pregnant woman cannot be isolated in her privacy," Justice Blackmun wrote in the landmark decision of Roe v. Wade, the U.S. Supreme Court case that legalized a woman's right to choose abortion.(fn1) While this is by no means Roe's most recognizable quotation, it has proven increasingly ominous for those trying to prevent the erosion of women's privacy rights. Indeed, as the courts, legislatures, and advocates on both sides have engaged in continual framing and reframing of the abortion debate, a pregnant women's right to be at all "isolated" in her decision has become increasingly less assured. "Cannot" is slowly and disturbingly becoming "will not."
January 22, 2008, marked the thirty-fifth anniversary of the Roe decision and many have taken the opportunity to reflect on the abortion debate. One thing is clear: we disagree--in courtrooms and legislatures, in classrooms and around kitchen tables. We disagree. These disagreements, as Blackmun noted at the beginning of Roe, arise from "one's experiences, one's exposure to the raw edges of human existence, one's religious training, [and] one's attitudes toward life and family."(fn2)
One might assume that acknowledgement of these differences would move the courts and legislatures to afford the person most intimately involved more privacy when making these personal and private decisions. Instead, individual judges and legislators have moved in the other direction--codifying and enshrining their own morals, religious beliefs, and experiences. So strong it seems is their desire to define a woman's experience that--as their voices have become louder and more controlling--the doctor's offices and kitchen tables where women have sought refuge to make private decisions have grown increasingly less isolated from their reach.
As the Court has shifted and reframed its logic in the last thirty-five years, a telling trend has emerged: the more willing justices are to invade and describe a pregnant woman's private experience, the more likely they are to restrict access to abortion. The language that courts--in particular the U.S. Supreme Court--use to describe women's private plights has invariably become the measure of how much these judges will substitute their own decision-making power for ours.
To Roe or to Wade
Many incorrectly assume that abortion was illegal before Roe and, if Roe is overturned, will be illegal again. In fact, state restrictions on abortion formed a patchwork of laws before Roe and, importantly, if Roe is ever overturned, we will return to the status of our state law prior to Roe.
Roe stands as the matriarch of the abortion cases protecting a woman's right to choose--holding this right absolute in the first trimester and outlining the parameters of state regulation in the second and third trimesters. It was Griswold v. Connecticut(fn3) and Eisenstadt v. Baird,(fn4) however, that set the stage for the Court to extend the zone of privacy to include the decision to terminate a pregnancy. Griswold and Eisenstadt created a constitutional privacy that protected the right of, first, married couples, and then unmarried people, to use contraception. Roe was followed by a series of cases that sought to test the power of government to restrict the right to abortion; in the majority of these cases, restrictive laws, in light of Roe, were held unconstitutional.(fn5) In 1992, however, Planned Parenthood v. Casey(fn6) upheld the essential holding of Roe while establishing a new test for abortion regulations. After Casey, regulations would only be unconstitutional if they imposed on women seeking an abortion an "undue burden"--a term Justice O'Connor chose without regard to the inherent subjectivity of what constitutes a "burden."
The Texas statute that criminalized abortions, at issue in Roe, was far from unique in its time. The majority of states that criminalized abortions did so either by criminalizing a woman's act of procuring an abortion and/or criminalizing the doctor's act in providing her with one. As Roe was decided, states across the country were considering challenges to their own criminalization statutes.
The Vermont Supreme Court, in fact, had already invalidated Vermont's criminalization statute in 1972 in Beecham v. Leahy,(fn7) a year before Roe.(fn8) The Vermont Legislature had enacted a law that penalized doctors for providing abortions, but was silent on a woman's right to receive an abortion. The Vermont Supreme Court invalidated the statute because of the duplicity inherent in the law. The Court explained that it was "hypocrisy" to allow women the right to obtain an abortion and yet criminalize the act of providing the...