Roe v. Wade: Questions & Answers.(Interview)

Editor's note. We could devote this entire commemorative issue to the historic Roe v. Wade decision itself and still not do it justice. The following is a very brief outline of what Justice Harry Blackmun said in Roe (and its fraternal sister, Doe v. Bolton) with brief rebuttal.

Q: What did Roe and Doe say?

A: It's very important to remember that prior to 1973, the abortion issue was almost exclusively dealt with by state legislatures. At issue in Roe and Doe were two state abortion laws. Roe v. Wade invalidated a century-old Texas law which prohibited abortion except where necessary to preserve the life of the mother. Roe's companion case, Doe v. Bolton, invalidated Georgia's "reform" abortion statute that allowed abortion where continuation of the pregnancy would endanger the woman's life or health, including mental health, where the fetus would likely be born with a serious defect, or where pregnancy resulted from rape.

But the judicial reach of Roe and Doe was so extensive that they overturned the abortion statutes of all 50 states, whether these laws went back to the 1860s or were enacted in the decades just prior to Roe and Doe. Most observers, including many who applauded the results of the decisions, found Blackmun's reasoning unpersuasive, his history untrustworthy, and his conclusion unsupported by the analysis he offered.

Q: Yes, but what did Blackmun's Roe/Doe decisions actually hold?

A: As one observer put it, the Court sewed together disparate pieces of the Constitution to fashion a Frankenstein's monster-like creation - - a "right of personal liberty" that included a "right of privacy" that was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

Q: This "right to privacy" - - where did Blackmun find its component parts?