Four-One-Four

It seems plausible that we will come to see Roe v. Wade's solution to the abortion issue the way Churchill saw democracy: the worst possible system, except for every other system. The Court's july, 1989 abortion decision' technically does not change Roe at all. Why then has the Webster decision occasioned such harsh rhetoric from those supporting a woman's right to make decisions free from the constraints of the criminal law, and such jubilant praise from those who want state legislatures to make decisions instead of women and their physicians? The answer is not in the holding,' but in the dicta used to deliver it. Five justices, writing three separate opinions, have made it clear that they believe the "trimester" scheme of Roe is no longer tenable, and four are ready to permit states to regulate heavily, and perhaps even prohibit outright abortions at any point in pregnancy. Roe is certainly vulnerable to constitutional attack, but it reasonably balances individual rights and state interests and has been the law of the land for almost two decades. Unless constitutional law is to be seen as simply the will or whim of the most recently appointed justices to the Supreme Court, some compelling reason must surely be articulated to abandon Roe, and some reasonable alternative constructed to take its place. It is the lack of any analysis or alternative approach that makes the Webster decision so disturbing and political reaction to it inevitable. The Chief justice himself was able to persuade only two members of the Court Uustice Byron White, who dissented with him in Roe in 1973, and the Court's newest member, Justice Anthony Kennedy) to concur in his opinion justices Antonin Scalia and Sandra Day O'Connor agreed with the outcome, but not the logic. Thus there is no majority opinion, only the Rhenquist Plurality." Problems with Roe There are, of course, two major considerations in Roe v. Wade. defining the woman's constitutional rights, and determining the state's interests in her decision. The first is based on the constitutional right of privacy, which Roe reaffirmed and expanded to encompass a pregnant woman's right to decide about abortion. The second defines when a state may interfere with the right: to protect maternal health when abortion is more dangerous than childbirth, and to protect fetal life after viability. The scope of the constitutional right of privacy is analytically the most challenging and ultimately the most central question. The plurality simply ignores it, even though as justice Blackmun properly notes in dissent: These are questions of unsurpassed significance in this Court's interpretation of the Constitution, and mark the battleground upon which this was fought, by the parties, by the Solicitor General ... and by an unprecedented number of amici. On these grounds, abandoned by the plurality, the Court should decide this case. "Privacy" has come to be simply a one-word legal description of individual liberty (or self-determination) to make decisions that involve marriage, sterilization, contraception, and abortion. As Ronald Dworkin has aptly described the core of self determination in the privacy right, decisions affecting marriage and childbirth are "so important, so intimate and personal, so crucial to the development of personality and sense of moral responsibility' that individuals must be allowed to make them "consulting their own conscience, rather than allowing society to thrust its collective decision on them."3 Abortion, the Court has consistently reaffirmed, is substantially identical to these decisions. In Dworkin's words: In many ways it is more private, because the decision involves a woman's control not just of her connections to others, but of the use of her own body, and the Constitution recognizes in a variety of ways the special intimacy of a person's connection to her own physical integrity (51). The real constitutional issue is defining the boundaries of this right If, for example, abortion is to be removed from the compass of this cluster of privacy rights, is there an alternative principle that explains why the abortion decision iS not constitutionally protected, but contraception, marriage, and sterilization decisions are? …