We the People: The Fourteenth Amendment and the Supreme Court

By Michael J. Perry | Go to book overview

6
Further Beyond: Abortion and
Physician-Assisted Suicide

On January 22, 1973, in Roe v. Wade, the Supreme Court of the United States decreed that under the Fourteenth Amendment, no state may outlaw abortion in the period of pregnancy prior to the time at which the fetus becomes "viable", that is, "[capable] of meaningful life outside the mother's womb." 1 (In January 1998, on the eve of the twenty-fifth anniversary of Roe v. Wade, the New York Times reported that because of advances "in neonatology, most experts place the point of fetal viability at 23 or 24 weeks." 2 Although, according to the Court's decree, a state may outlaw abortion in the post-viability period of pregnancy, it must provide an exception for any abortion "necessary to preserve the life or health of the mother." 3) No constitutional decision by the Supreme Court in the modern period of American constitutional law has been more controversial-- certainly none has been more persistently controversial--than the Court's ruling in Roe. Even after more than a quarter of a century, the legitimacy of the Court's decision is widely and furiously contested. 4 By contrast, in 1979, twenty-five years after the Court's decision in Brown v. Board of Education, 5 the legitimacy of the Court's ruling in Brown was largely undisputed. 6

It is no secret that the principal critics of the Court's decision in Roe have been "pro-life" on the question whether abortion should be a crime. The most powerful critique of the decision, however, was written not by such a person, but by someone who announced, in his critique, that as a legislator he would vote to decriminalize abortion: John Hart Ely. Notwithstanding that as "a legislator I would vote for a statute very much like the one the Court ends up drafting", 7 Ely's unequivocal judgment--delivered in April 1973, just three months after the Court decided Roe--was that the Court's ruling in Roe is "a very bad decision[,] . . . because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be." 8 Ely is not the only liberal constitutional scholar who charged that the Court's decision in Roe was illegitimate. 9 In 1976, Archibald Cox, who served as solicitor general of the United States under Presidents Kennedy and Johnson, complained that in Roe

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