Roe v. Wade and Constitutional Law

by Rev. Clifford Stevens

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It was John Courtney Murray who insisted upon civil discourse in a pluralist society,¹ and his beginning discourse on the "American proposition"² bore fruit in the Declaration on Religious Liberty of the Second Vatican Council.³ This paper is a continuation of that discourse in the face of the most critical issue that divides Americans and of the most controversial Supreme Court decision since Brown v. Board of Education in 1954 outlawed segregation in the United States.⁴

This paper examines the "American proposition" as it bears upon the question of abortion, in the light of Roe v. Wade and the legal background that went into that decision. It examines the principles and precedents in constitutional history that provide a legal framework for examining that decision itself as a piece of constitutional history and as an expression of constitutional law.

There is much that is novel in this approach, but it is in harmony with that constitutional tradition begun by John Marshall,⁵ the first great Chief Justice of the Supreme Court, a tradition followed by Louis Brandeis and Benjamin Cardozo. The Brandeis Brief`⁶ of 1908 opened a new era of constitutional law in the United States, an era that included the constitutional labors of Brandeis himself and several other justices of the Supreme Court.⁷ This paper follows in that tradition.

Constitutional law, as Louis Brandeis pointed out,⁸ is constantly hovering between principles and precedents and the concrete historical situations to which law must be applied, or, in the words of the first great legal mind of constitutional history, Bartolome de Las Casas, juntar el derecho con el hecho⁹ is of the very essence of law; facts and the rights bound up in the facts are what legal judgment is all about.

What Roe v. Wade brought into the legal arena was a whole new dimension of law, never considered before as a constitutional matter — the opening of a legal question with no precedents and no constitutional principles directly relating to it. In constitutional terms, there were no categories to judge the question of the unborn, no legal categories that included them. It was a totally new fact, in the Brandeis sense — a new legal territory with no guideposts.

Justices of the Supreme Court know the precedents and they know the principles embodied in these precedents, but as Louis Brandeis has also pointed out, in actual litigation, they are dependent upon the oral arguments and written briefs of the contending lawyers. "The role of the lawyer," wrote Brandeis, "is to inform the judges of the larger social facts that lay behind any dispute and to show the judges how to align existing laws with those facts."¹⁰

What is often forgotten is that Roe v. Wade was a "dispute," a legal dispute between two contending parties. On the one side, the Texas statute prohibiting abortion, represented by Wade; on the other side, the party challenging those laws — Roe, in reality two women lawyers contesting those laws. What was in dispute was the constitutionality of the abortion laws, and the facts presented bore upon the purpose and intent of those laws.

What was ultimately decided was the unconstitutionality of the Texas statute based upon the facts presented, with the judgment that abortion itself was a medical matter, not a constitutional one, and that access to abortion was a private matter between a woman and her doctor. The constitutionality of abortion itself, as the termination of unborn life, was not even considered. On the basis of the facts presented, unborn life was not an issue; it was merely of peripheral interest, and was bound up with no clear constitutional principle.

But here Roe v. Wade made a definite advance on previous Supreme Court decisions, an advance suggested by Justice Brennan's private notes to Justice Blackmun,¹¹ who wrote the majority opinion, and furthered by Justice Douglas' concurring opinion.¹² This involved the question of non-enumerated rights,¹³ rights contained implicitly in the Constitution, or following organically from rights specified there. The non-enumerated right appealed to in Roe v. Wade was the "right to privacy."

The "right to privacy" was not new. It had been the subject of an article by Louis Brandeis and his law partner, Sam Warren, in the Harvard Law Review in 1890,¹⁴ and had been the basis of a famous dissent of Justice Brandeis and Justice Holmes in a wiretapping case in 1928.¹⁵ In his dissent, Justice Brandeis had written: "To protect that right (privacy), every unjustifiable intrusion of Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." And he added with emphasis: "Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding."¹⁶

If abortion were merely a medical matter, as the presented facts indicated, and if abortion laws were not concerned with anything more than medical matters, then the abortion laws were an "intrusion by the Government upon the privacy of the individual," and, as Justice Brandeis indicated in his dissent, this intrusion was prohibited by the Fourth Amendment. That was the logic of the decision. But as Justice Brandeis pointed out in his brief, which opened a new era of constitutional law,¹⁷ there is more than logic to the juridic process and the facts presented in this case did not cover the whole ground and were, in fact, based upon a historical error and a legal fiction.

Facing the question of the abortion laws

The legal basis for a constitutional challenge to Roe v. Wade hinges upon the fact that Roe v. Wade did not face and did not decide upon the constitutionality of abortion. What it faced and decided upon was the constitutionality of access to abortion, under the legal fiction that abortion laws in the past were intended to protect a woman from a surgical operation that was unsafe and life-threatening.

What was considered was the surgical procedure itself, as safe or unsafe to the health of a woman, with the conclusion that, with the advance of medical science and the improvement of surgical techniques, all danger to a woman's health had been removed. Using the common legal/principle cessante ratione legis cessat et ipsa — when the reason for a law no longer exists, the law itself ceases to exist — Roe v. Wade declared all abortion laws obsolete and access to an abortion a constitutional right protected by the Fourth Amendment.

Abortion as a constitutional issue was not even considered. What was considered was abortion as a medical matter, with the conclusion that it was and remains merely a medical matter, a private matter between a woman and her doctor.

This was the hidden agenda behind the majority opinion written by Justice Blackmun, and it explains the twists and turns of the legal reasoning that went into that opinion. The guiding principle was one that Justice Blackmun had received from the New York Law professor, Cyril Means, a leading member of the NARAL, the National Association for the Repeal of the Abortion Laws. The principle was part of a complexus of conclusions that Professor Means had come to in his study of the legal history of abortion. One of his conclusions was that the abortion laws of the past were chiefly, if not exclusively, framed to protect the health of women, since abortion in the past was a rather dangerous and sometimes fatal surgical operation for women. With the advancement of medicine, he concluded, the laws had become outmoded and he cited the legal principle quoted above as his basis for the repeal of the abortion laws.

Justice Blackmun accepted both the reasoning and the principle of Professor Means, and searched as well for a constitutional principle to support access to abortion, once the laws were repealed. He found it in the right to privacy, a ready-made principle that had resolved another landmark case, Griswold v. Connecticut, eight years before.¹⁸

What the legal briefs of NARAL failed to point out was the real intent of the abortion laws: they were fashioned, not primarily to protect a woman from unsafe and life-threatening surgery — although this was certainly a major concern — but to preserve the life of the unborn. And this was because those laws recognized the unborn child not merely as a potential human being, but as an actual human subject. Potentially, the unborn child was a human being in a developing stage, but actually it was a full-blown human subject, and as such, the subject of rights and the object of law.

These are some of the facts ignored by Roe v. Wade, under the legal fiction that abortion laws were solely intended to protect a woman from unsafe surgery. Their primary intent was to protect the unborn child from an inhuman and barbaric assault on its bodily integrity, in the name of accepted medical practice, the right to privacy, or the right of dominion that a woman has over her own body. The abortion laws, like all laws embodying a constitutional right, are based on the inviolability of the human person, and it is on this level that the legal debate has to take place. What is involved is not safe or unsafe surgical procedures, but human rights in the embryonic moment of human existence. In every issue of constitutional law, it is the inviolability of the human person that is stake.

The only way to justify legally the violation of a human right is to negate by a legal fiction the human status of the victim. This tactic is as old as constitutional law itself,¹⁹ and always marks the emergence of an unrecognized constitutional right from the bedrock of the Constitution and the beginning of massive litigation to clarify the issue.

Even the proponents of abortion recognize it as an inhuman and barbaric practice, necessary to protect a woman from unsafe illegal surgical practices, optional for any woman under the constitutional right to privacy, expedient for the solving of any number of personal and social problems. But that is not the issue at stake. The issue at stake is a new lawlessness invading the most primitive and most sacred privacy of a human being, and a constitutional right not given by law or government and therefore outside of their constitutional authority to annul or abrogate.

Raising the constitutional question

The constitutional question in Roe v. Wade has never been answered, and a glaring hole is left in the decision: the question of the unborn has not been settled constitutionally. The purpose of a legal challenge to Roe v. Wade is to do just that, drawing from constitutional history those precedents leading to the question of the unborn and drawing from these precedents the constitutional principles that will resolve the issue.

Every time the root constitutional principle all men are created equal has been extended to include a new class of human beings, there has been a fierce debate and legal battle, whether it is the enslaved "Indian" of Spanish America (the New Laws of 1542), the black slave of the United States (the abolition of slavery), the Native American of North America (Standing Bear v. Crook, 1879), women of the United States (the 19th Amendment), African-American citizens after the abolition of slavery (Brown v. Board of Education, 1954), or children working in factories (child labor laws). The entrance of the unborn into the legal arena will be no less debated, with opposition from those who claim dominion over the unborn as a right under the law. What has to be demonstrated on constitutional principles is that this is not a right under the law and that no such right exists.

The right to privacy was a legal cover for an inhuman and barbaric operation that masks as standard medical practice, just as surely as property rights were a legal cover for the practice of slavery and "separate, but equal" was the legal cover for the practice of segregation. The claim of medical science over the life of the unborn is as unconstitutional as the claim of the slave-owner over the black slave and the claim of the state over the personal autonomy of the African-American citizen. The claim of legality is the same, only the victim is different.

It is here that the Brandeis Brief takes on new significance: what Louis Brandeis called the facts that lay behind the dispute and the aligning of existing laws with those facts. The existing laws and precedents embody constitutional principles that emerge only with litigation, as the "American proposition" is seen to include every class of human being and every human condition. In the past, it was seen to apply to specific classes of human beings; in the case of the unborn, it is a human condition that is in debate. The principles that apply to this human condition are derived from basic constitutional principles that are not in debate. It is the work of legal reasoning to draw from the facts of this specific case that alignment with existing laws to resolve the constitutional question involved.

Precedent embodies the constant in the juridic process as it faces the variable to which the law must be continually applied. The variable in this case is not the constitutional rights of women, since these are not in question, but the constitutional rights of the unborn. Because of a carelessly worded Texas statute and the facts presented in the case, this issue was never faced. With the presentation of new facts, the real constitutional issue in the abortion question — the termination of unborn life — will emerge as the issue to be decided.

Constitutional history is a progression of laws and precedents extending the protection of the law to persons not previously protected by law or whose rights under the law were not recognized, as well as the outlawing of practices violating those rights. This progression shows the gradual extension of the law in space to every person subject to the law, and in time to every moment and condition of human existence.

This is the history involved in this dispute. The facts are the new lawlessness: the physical and medical facts of abortion itself, the commercialization of the "products" of abortion as if these were the legitimate possessions of medical science, the socialization of abortion, and the deputing medical science as the legal executioner of the unwanted unborn. As in the case of slavery, the facts are more brutal and inhuman than the supporters of these practices wish to admit, but as in the Brandeis Brief in Muller v. Oregon, which opened modern constitutional history, it is the facts of the case that will reveal the constitutional principles outlawing the practice.

Examining precedents and principles

The precedents in this dispute are not the abortion laws themselves, as presented in the NARAL briefs, but those precedents in constitutional history having to do with human rights. The precedents previous to Roe v. Wade reveal two juridic moments, two "moments" of human existence protected and safeguarded by specific laws, embodying a wide range of human and personal rights. These two juridic moments are: 1) the autonomous moment of adulthood, and 2) the pedagogical moment of childhood. Every constitutional decision of the Supreme Court, from Georgia v. Brailsford, the first case adjudicated in 1793, to the last case on the docket previous to Roe v. Wade in 1973, was concerned with persons in the autonomous moment of adulthood — adults, in the full legal meaning of that term — or with persons in the pedagogical moment — children, or those who had not reached their majority. With Roe v. Wade, a new juridic moment emerged from litigation, the embryonic moment of the unborn.

What has to be examined, first of all, are those constitutional principles that apply to persons in the autonomous moment of adulthood and in the pedagogical moment of childhood to see if they comprehend in their scope and intent, or in principles derived from them, human beings in the embryonic moment of human existence.²⁰ What those principles are, what those constitutional rights are, are imbedded in constitutional history itself, in the Bill of Rights, or in those major decisions of the Supreme Court having to do with human and personal rights.

This is the judicial process inaugurated by the Brandeis Brief of 1908, and this is the process used in a constitutional challenge to Roe v. Wade. Roe v. Wade did not face and did not decide upon the constitutionality of abortion as the termination of unborn life, but it did bring the question of the unborn into the legal arena and it did begin the constitutional scrutiny of the practice of abortion. What has to be examined, in challenging that Supreme Court decision, is the history, the precedents, the principles and the facts of the abortion debate, in the light of the "American proposition," from which all constitutional law flows.

End Notes

1. We Hold These Truths by John Courtney Murray. Sheed & Ward, New York. pp. 6-15.
2. The subtitle of Murray's book explains its purpose: Catholic Reflections on the American Proposition. Cf. Theologian in Conflict by Donald E. Pelotte, S.S.S. Paulist Press, New York. 1976. Chapters 4 and 5.
3. Conciliorum Oecumenicorum Decreta, a cura di Guiseppe Alberigo et al. Edizioni Dehoniane, Bologna, Italy. 1991. p 1001.
4. Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality. Knopf, New York. 1976.
5. Haskins & Johnson, History of the Supreme Court of the United States: Foundations of Power: John Marshall, 1801-1815. Vol. II. Macmillan, New York. 1981.

   G. Edward White, History of the Supreme Court of the United States: The Marshall Court and Cultural Change, 1815-1835. Vols. 111-IV. Macmillan, New York. 1988.

6. Louis D. Brandeis: Justice for the People by Philippa Strum. Harvard University Press, Cambridge, Mass. 1984. Chapter 8, pp 114-131.

   Brandeis and Frankfurter: A Dual Biography by Leonard Baker. Harper & Row, New York. Chapter 1, "Before the Court."

   A History of the Supreme Court by Bernard Schwartz. Oxford University Press, New York. 1993. pp 215-216.

7. Oliver Wendell Holmes, Jr., The Common Law. 1881.

   Benjamin N. Cardozo, The Nature of the Judicial Process. Yale University Press, New Haven. 1921.

   Crusaders in the Courts by Jack Greenberg. Basic Books, New York. 1994.

   Schwartz, op. cit., pp 219-224, 229-230.

8. 8 Ibid. pp 124-125
9. Historia de las Indias, Book 3, Chapter 3. "Obras escogidas," edited by J. Perez de Tudela, Vol. 2:174a-b, Madrid, 1957-58.
10. Strum, op. cit., p. 24.
11. Schwartz, op. cit., pp. 348-349.
12. Ibid., pp. 357-361.
13. Ibid.
14. Strum, op. cit., pp 466, note 38.
15. Olmstead v. United States, Strum, op. cit., pp. 322-325.
16. Baker, op. cit., p. 215.
17. Strum, op. cit., pp 124-125.
18. Constitutional Interpretation by Harold W. Chase and Craig R. Ducat. West Publishing Co., St. Paul, Minn. 1979. pp. 1129-1136.
19. Cf. Dred Scott v. Sandford, Chief Justice Roger Brooke Taney: "Neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were acknowledged as part of the people, nor intended to be included in the general words of the Declaration of Independence . . . They had for more than a century been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect . . . The negro might justly and lawfully be reduced to slavery . . . He was bought and sold and treated as an ordinary article of merchandise and traffic." Schwartz, op. cit., pp. 105-125.
20. The rights of the unborn, deriving from the right of dominion, include: 1) the right to nurture, 2) the right of bodily integrity, 3) the right of privacy, 4) the right of immunity from harmful assault. The right of dominion itself has been upheld by Roe v. Wade but, like the right to privacy, wrongfully, in this case, applied to the mother.

Reverend Clifford Stevens, priest of the Archdiocese of Omaha, graduated from Boys Town, Nebraska, in 1944 and was ordained in 1956. He served as an Air Force chaplain and has been pastor of several parishes. In 1984 he founded Tintern Monastery, a cloistered-contemplative monastery for priests. He is the author of seventeen books and of many articles in different magazines. His writings on the rights of the unborn and on constitutional law can be found on the Priests for Life website.

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