The Abortion Mythology of Roe V. Wade

Article excerpt

The phoenix, the mythical bird that was said to rise anew from its own ashes, was invoked at the beginning of the document that was to become the theoretical cornerstone of Harry Blackmun's Roe v. Wade opinion: "The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?" by Cyril C. Means Jr., counsel for NARAL. The article's opening paragraph reads: "In ancient Eastern folklore, the phoenix was a fabulous bird, said to live for five hundred years in the Arabian desert, then to build its own funeral pyre, on which it would burn itself to ashes, out of which it would then arise young again. Is it the destiny of elective abortion to recapitulate the career of the phoenix?"

Although it didn't have a catchy title, Cyril Means's law-review article would come to have more influence on the American system of law and society than perhaps any other. Means's use of mythology at the opening of his article speaks volumes of what the reader should expect to find thereinmore of the same.

Means's article propagated one primary myth and two ancillary ones. The principal myth hatched in The Phoenix was that abortion was not a common-law crime. The two ancillary myths were that a) given the first myth, abortion was freely available (and by implication, more socially acceptable) at the time our Constitution was adopted and b) given the first two myths, there was no historical recognition of the fetus as a person. Consider this bold portrait Means paints in the article's introduction: "It reveals the story, untold now for nearly a century, of the long period during which English and American women enjoyed a common-law liberty to terminate at will an unwanted pregnancy, from the reign of Edward III to that of George III. This common-law liberty endured, in England, from 1327 to 1803; in America, from 1607 to 1830. Thus its life-span closely approximated the semimillennium of the phoenix."

The article was published in 1971, before Roe v. Wade and Doe v. Bolton were first argued before the Supreme Court in December of that year, and was submitted to the Court prior to the first hearing. Sarah Weddington, who represented Jane Roe, made good use of Means's mythology in the first oral argument (December 13, 1971):

Your Honors, in the lower court, as I'm sure you're aware, the court held that the right to determine whether or not to continue a pregnancy rested upon the Ninth Amendment-which, of course, reserves those rights not specifically enumerated to the Government, to the people. I think it is important to note, in a law-review article recently submitted to the Court and distributed among counsel by Professor Cyril Means Jr., entitled "The Phoenix of Abortional Freedom," that at the time the Constitution was adopted there was no common-law prohibition against abortions; that they were available to the women of this country.

Here, Weddington referred to the first two of Means's myths-that there was no common-law prohibition against abortion and that abortion was freely available at the time the Constitution was adopted. The third myth, that there was no historical recognition of the fetus as a person, Weddington would parrot a few moments later:

The Constitution, as I read it, and as interpreted and as documented by Professor Means, attaches protection to the person at the time of birth. Those persons born are citizens. The enumeration clause, we count those people who are born. The Constitution, as I see it, gives protection to people after birth.

Later in his article, Means claimed to be the sole author of this new history of the common law: "No modern American scholar has shown any awareness of it." In other words, Means's understanding of the common law as it applied to abortion put him in a crowd of one. Nevertheless, Blackmun re lied heavily on Means in formulating his Roe opinion, citing the article four times and an earlier Means article three times. …