How the Supreme Court talks about abortion: the implications of a shifting discourse.

• Author: Greenhouse, Linda

I.

It was late in November of 1972. Roe v. Wade (1) had been under consideration at the Supreme Court for a year, (2) with release of the opinion now less than two months away. (3) Justice Lewis F. Powell, Jr., one of Justice Harry A. Blackmun's most steadfast allies throughout the decisional process, received a memo from one of his law clerks critiquing Blackmun's most recent draft. (4)

"HAB has placed considerable emphasis on the role of the physician and the free exercise of his professional judgment," the law clerk, Larry A. Hammond, wrote. (5) Hammond continued:

Indeed, on page 49, he states, "The abortion decision inherently is a medical one, and the responsibility for that decision must rest with the physician." Doesn't it seem that this language overstates the doctor's role and undercuts the woman's personal interest in the decision? All medical decisions are the product of an agreement between patient and doctor. I see no reason, therefore, not to add a clause to this sentence indicating that the abortion decision must rest "with the physician and his patient." (6) The law clerk urged Powell to take the matter up with Blackmun. If Powell ever did, the documentation is lacking. Any effort Powell might have made to persuade the author of Roe v. Wade to take account of the woman's role in the abortion decision was in any event unavailing. Blackmun's language in the published opinion, issued on January 22, 1973, remained exactly as it had been in the draft:

The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. (7) Thirty-five years later, these words, which comprise the heart of the summary paragraph near the end of the Court's fifty-page opinion, sound oddly discordant. After all, isn't it obvious that women, not their doctors, are the central actors in the human drama of pregnancy and reproductive decisionmaking? The experience of an unintended pregnancy is widely shared among women, one that half of all American women will have faced by the age of forty-five. (8) By that age, one-third of American women will have had an abortion, making abortion one of the most common of all medical procedures, performed 1.3 million times a year in the United States and terminating twenty-two percent of all pregnancies. (9) To modern ears, regardless of one's opinion about the acceptability of abortion, Roe's paternalistic assumption that doctors (always male, evidently) know what is best for their female patients sounds archaic. Those who expound upon Roe without ever having read it, and they are many, might be surprised to find that the decision is much more a doctor's bill of rights than it is a feminist manifesto.

Fast forward to April 18, 2007, when the Court issued its decision in Gonzales v. Carhart, (10) upholding a federal law called the Partial-Birth Abortion Ban Act of 2003. (11) Justice Kennedy, writing for the five-to-four majority, described this law as "a federal statute regulating abortion procedures." (12) But as its placement in Title 18 of the United States Code indicates, this is not a regulatory but a criminal law, subjecting doctors to two years in prison and a fine of $250,000 for performing an abortion by the prohibited means, (13) known to the medical profession not by the politically-charged term "partial-birth abortion" but as either dilation and extraction (D & X) or intact dilation and evacuation (intact D & E).

In Carhart, women are once again without intellectual or moral capacity, little more than putty in the hands of their doctors. With respect to women, it is as if two decades of post-Roe discourse have been erased, decades during which the Court by fits and starts constructed a unified jurisprudence of women's rights and abortion rights. Beginning with the Thornburgh decision in 1986, (14) and reaching a peak in Planned Parenthood v. Casey in 1992, (15) the Court gradually came to place women at the center of decision-making about their own reproductive lives, and to understand freedom of reproductive decision-making as central to women's equality. (16)

This is where matters stood in April 2007. But with the decision in Carhart, women were suddenly whisked out of the world of Casey, the world in which Justice Kennedy and the others in the majority had confidently declared that "[t]he ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives," (17) and dumped back into the world of Myra Bradwell, deemed by the nineteenth-century Court to be unsuited, by virtue of her sex, "for many of the occupations of civil life," including that of attorney, because "[t]he paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother." (18)

Indeed, Justice Kennedy instructs us in Carhart, albeit without citing Myra Bradwell's case, that "[r]espect for human life finds an ultimate expression in the bond of love the mother has for her child," (19) and that "[w]hile we find no reliable data to measure the phenomenon, it seems unexceptional to conclude some women come to regret their choice to abort the infant life they once created and sustained." (20) Worse still, abortion has dire consequences for women who choose it: "Severe depression and loss of esteem can follow." (21)

This depiction of the moral and psychological disaster that awaits any woman who chooses to terminate a pregnancy finds no counterpart in Roe or any previous Supreme Court decision on abortion. But the image of women as less than fully capable adult decision-makers, who cannot be assumed to know their own best interests, does at least mark a return to familiar territory.

The same cannot be said for the Carhart majority's treatment of doctors. While in Roe physicians were all-knowing professionals whose judgment was not to be questioned, the doctors depicted in Carhart were so untrustworthy that the Court must permit Congress to come between them and their hapless patients. (The memory of Congress's effort to "rescue" Terry Schiavo might come to mind.) (22) The Carhart majority assumes, without ever explaining, that doctors would otherwise seek to trick unknowing women into undergoing abortions by the prohibited method, a method that supposedly will bring the woman grief and regret once she realizes what has happened. (23) "It is self-evident," the Court tells us--self-evidently lacking any proof beyond the self-referential assumption of five Justices--"that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form." (24)

Why the cure for this presumed state of affairs would not be a straightforward informed-consent requirement rather than a criminal prohibition, the Court does not tell us. That analytical lapse is beyond the scope of this piece. What I wish to examine is the path the Court has traveled in its discourse about abortion: its reversion to an earlier view of women and its surprising adoption of a harsh and cynical view of doctors from whom women must be protected. In exploring these shifts in their cultural context and suggesting their implications for the future, it is clear that the full dimensions of what occurred in Gonzales v. Carhart cannot be understood without looking beyond the holding to the majority's deepest assumptions about human nature and behavior.

II.

Suppose a reader stumbled upon the majority opinion in Roe and tried to deduce, solely from its fifty pages, some key facts about the context in which the decision was produced and the world in which it landed. Emerging from behind a veil of ignorance, our reader would learn these things: that criminal prohibitions against abortion were widespread but of "relatively recent vintage"; (25) that after more than a century of taking a hard-line prohibition against abortion, the American Medical Association had recently reevaluated its position and now permitted doctors to perform abortions "in accordance with good medical practice and under circumstances that do not violate the laws of the community"; (26) that the American Public Health Association had similarly changed its position and was now in favor of making "rapid and simple abortion referral" readily available through public-health departments and elsewhere; (27) and that the American Bar Association, "in recognition of a more liberal trend in laws on this subject," had recently approved a liberalized model abortion law promulgated by the Conference of Commissioners on Uniform State Laws. (28)

Our novice reader of Roe would also learn that advances in medicine had made abortion "relatively safe," and, for early abortions, perhaps even safer than normal childbirth. (29) It would also be clear that as a matter of constitutional doctrine, the Court had recently begun to draw the outlines of an unenumerated "right of privacy" that was now deemed "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." (30) Here, the reader would find, almost in passing, a description of what a woman's interest might be in making such a decision: "Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care." (31) These, along with the "distress" of bringing an unwanted child into the world and the "stigma of unwed motherhood,"...