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Overruling Roe V. Wade: an Analysis of the Proposed Constitutional Amendments Charles E Notre Dame Law School NDLScholarship Journal Articles Publications 1973 Overruling Roe v. Wade: An Analysis of the Proposed Constitutional Amendments Charles E. Rice Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Constitutional Law Commons, Health Law and Policy Commons, Human Rights Law Commons, and the Law and Gender Commons Recommended Citation Charles E. Rice, Overruling Roe v. Wade: An Analysis of the Proposed Constitutional Amendments, 15 B.C. Indus. & Com. L. Rev. 307 (1973-1974). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/44 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. OVERRULING ROE v. WADE: AN ANALYSIS OF THE PROPOSED CONSTITUTIONAL AMENDMENTS* CHARLES E. RiCE** It is a great pleasure for me to participate in this special issue honoring Professor John D. O'Reilly and Professor Richard S. Sulli- van. The impact of a law teacher is often not apparent to his students until their later years in the profession. While I was attend- ing Boston College Law School, my appreciation of Professors O'Reilly and Sullivan was substantial and genuine. But it is only in later years that I have come to appreciate fully the real education they provided. Their insights went beyond the mere technical analysis of cases, though both of them made such analyses thoroughly and well. Rather, we gained from these gentlemen an appreciation of the deeper issues of fairness and morality that under- lie current questions of public law. The ethical concerns imparted in the O'Reilly and Sullivan courses, especially in Constitutional Law and Labor Law, have been and are an enduring element of my own professional outlook. I do not mean an identity of view on particular issues. For the O'Reilly and Sullivan courses underlined the fact that there are few questions in public law that are not subject to reason- able and legitimate variance of views. Rather, I refer to their incul- cation of a spirit of inquiry and their respect for the fact that there are elements of justice and morality that cannot be ignored in any sound approach to public law. As a contribution to this special issue, I venture to offer some comments on the most critical constitutional issue ever faced by the American people. Very few issues of public law are so clear as to be beyond legitimate debate. One of these, in my opinion, is abortion, which involves the unjustifiable killing of innocent human beings. In any society that has not taken leave of its senses, it is beyond question that innocent human beings should not be defined as non- persons and subjected to death at the convenience of others. Unfor- tunately, the current state of our law on this point is a measure of our degradation. On January 22, 1973, the Supreme Court of the United States, in Roe v. Wade,' held that the child in the womb is * The thesis advanced here is an elaboration on that originally presented in an article by the author entitled "The Dred Sott Case of the Twentieth Century," which was published in 10 Houston Law Review 1054 (1973). The basic analysis contained in the earlier article is presented here for the benefit of the reader. -- A.B., College of the Holy Cross, 1953; LL.B., Boston College Law School, 1956; LL.M., New York University School of Law, 1959; S.J.D., New York University School of Law, 1962; Professor of Law, Notre Dame Law School. 1 410 U.S. 113 (1973). BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW not a "person" within the meaning of the Fourteenth Amendment, which provides: "No State shall . .deprive any person of life, any liberty, or property, without due process of law; nor deny to ' 2 person within its jurisdiction the equal protection of the laws. Having decided that the child in the womb is not a "person," the Court then held that the mother's right to privacy prevents the state from prohibiting abortion except in very limited situations, and went on to invalidate Texas statutes which prohibited abortion except when "procured or attempted by medical advice for the purpose of saving the life of the mother."'3 In the companion case, Doe v. Bolton,4 the Court struck down Georgia statutes, patterned after the American Law Institute's Model Penal Code, which pro- hibited abortion unless "performed by a physician duly licensed" in Georgia when based upon his best clinical judgment . an abortion is necessary because: (1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or (2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or (3) The pregnancy resulted from forcible or statutory rape.5 At the time of the Supreme Court rulings, fourteen other states had statutes similar to the Georgia provisions and thirty other states6 had more restrictive prohibitions comparable to the Texas laws. In Wade the Supreme Court held that the mother's right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. 7 The Court went on to indicate, however, that the right of privacy "is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical stan- 2 U.S. Const. amend. 14, § 1. See 410 U.S. at 157-58. 3 Tex. Pen. Code Ann. arts. 1191-94, 1196 (1952). See 410 U.S. at 117-18, 152-55. 4 410 U.S. 179 (1973). s Ga. Code Ann. § 26-1202 (1972). 6 See enumeration in Roe v. Wade, 410 U.S. at 140. 7 Id. at 153. 308 ROE v. WADE dards, and prenatal life, become dominant."' 8 But state regulation of abortion may be justified only by a "compelling state interest."9 The Court rejected the contention advanced by the State of Texas that the compelling state interest attaches here "from and after conception. "' 1 Rather, "[w]ith respect to the State's important and legitimate interest in the health of the mother, the 'compelling' point, in the light of present medical knowledge, is at approximately the end of the first trimester. "' Prior to the end of the first trimes- ter, the state may neither prohibit nor regulate abortion, which "must be left to the medical judgment of the pregnant woman's attending physician. ' 12 From the end of the first three months to viability, the state may not prohibit abortion but may "regulate the abortion procedure in ways that are reasonably related to maternal health. ' 13 Of course, at any stage, the state may proscribe any abortion by a person who is not "a physician currently licensed by ' 14 the State." The state's interest in "potential life" does not become compel- ling enough to justify any prohibition of abortion until viability. "Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."' 5 "For the stage subsequent to viability," the state may regulate and even forbid abortion "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."'1 6 The health of the mother, said the Court in Bolton, includes "psychological as well as physical well-being"'17 and "the medical judgment may be exercised in the light of all factors-physical, emotional, psychological, famil- ial, and the woman's age-relevant to the well-being"' s of the mother. The mental health of the mother is such an elastic ground for abortion' 9 that the Supreme Court decisions effectively permit elective abortion right up until the time of normal delivery. In the abortion cases, the Supreme Court said: "We need not resolve the difficult question of when life begins. '20 The Court endorsed "the view that the fetus, at most, represents only the O Id. at 155. 9Id. 10 Id. at 156. t1Id. at 163. 12 Id. 13 Id. t4 Id. at 165. I- Id.at 160. 16 Id. at 164. 17 410 U.S. at 191-92. 18 Id. at 192. 19 See Ford, Mass-produced, Assembly-line Abortion, California Medicine 117 (Nov. 1972). 20 Roe v. Wade, 410 U.S. at 159. BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW potentiality of life." 21 Without considering or deciding the question of whether or not the child in the womb is a human being, the Court held that he is not a "person" within the meaning of the Fourteenth Amendment. The Court said that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn. ' 22 It could be argued that the Court's ruling in this respect left the door open to Congress to define the child in the womb as a "person" pursuant to the congressional power to enforce the Fourteenth Amendment by appropriate legislation. It is more likely, however, that the Court regarded the child in the womb as inherently incapable of being considered a Fourteenth Amendment "person" absent a constitu- tional amendment to that effect.
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