THE SUPREME COURT AND ABORTION : EXCERPTS: Fetus Is ‘Actual Human Life’ in Minds of Many

These are excerpts from the oral arguments before the Supreme Court in the Missouri abortion case:

Privacy Rights

(From Charles Fried, representing the Justice Department.)

Thank you, Mr. Chief Justice, and may it please the court. Today the United States asks this court to reconsider and overrule its decision in Roe vs. Wade. At the outset, I would like to make quite clear how limited that submission is. First, we are not asking the court to unravel the fabric of unenumerated and privacy rights which this court has woven in cases like Meyer and Pierce and Moore and Griswold. Rather, we are asking the court to pull this one thread. And the reason is well stated by this court in Harris and McRae; abortion is different.

It involves the purposeful termination, as the court said, of potential life. And I would only add that in the minds of many legislators who pass abortion regulation, it is not merely potential life but actual human life. And though we do not believe that the 14th Amendment takes any position on that question, we think it is an utter non sequitur to say that, therefore, the organized community must also take no position in legislation and may not use such a position as a premise for regulation.

Justice Anthony M. Kennedy: Your position, Mr. Fried, then, is that Griswold vs. Connecticut is correct and should be retained?

Fried: Exactly, Your Honor.

Kennedy: Is that because there is a fundamental right involved in that case?

Fried: In Griswold against Connecticut, there was a right which was well established in a whole fabric of quite concrete matters, quite concrete.

It involved not an abstraction such as the right to control one’s body, an abstraction such as the right to be let alone, it involved quite concrete intrusions into the details of marital intimacy. And that was emphasized by the court and is a very important aspect of the court’s decision.

Kennedy: Does the case stand for the proposition that there is a right to determine whether to procreate?

Fried: Griswold surely does not stand for that proposition.

Kennedy: What is the right involved in Griswold?

Fried: Beg your pardon?

Kennedy: What is the right involved in Griswold?

Fried: The right involved in Griswold, as the court clearly stated, was the right not to have the state intrude into, in a very violent way, into the details, inquire into the details of marital intimacy. There was a great deal of talk about inquiry into the marital bedroom and I think that is a very different story from what we have here.

Procreation Issue

Justice Sandra Day O’Connor: Do you say there is no fundamental right to decide whether to have a child or not?

Fried: I think that that question . . . .

O’Connor: A right to procreate? Do you deny that the Constitution protects that right?

Fried: I would hesitate to formulate the right in such abstract terms and I think the court prior to Roe vs. Wade quite prudently also avoided such sweeping generalities. That was the wisdom of Griswold.

O’Connor: Do you think that the state has the right to, if in a future century we had a serious overpopulation problem, has a right to require women to have abortions after so many children?

Fried: I surely do not. That would be quite a different matter.

O’Connor: What do you rest that on?

Fried: Because, unlike abortion, which involves the purposeful termination of future life, that would involve not preventing an operation, but violently taking hands on, laying hands on a woman and submitting her to an operation and a whole constellation . . . .

O’Connor: And you would rest that on substantive due process protection?

Fried: Absolutely.

Kennedy: How do you define the liberty interests of the woman in that connection?

Fried: The liberty interest against a seizure would be involved. That is how the court analyzed the matter in Griswold. That is how Justice Harland analyzed the matter in his dissent in Poe vs. Ullman, which is, in some sense, the root of this area of law.

Kennedy: How do you define the interest . . . the liberty interest of a woman in an abortion case?

Fried: Well, I would think that there are liberty interests involved in terms perhaps of the contraceptive interest, but there is an interest at all points, however the interest of the woman is defined, at all points it is an interest which is matched by the state’s interest in potential life.

Kennedy: I understand it is matched, but I want to know how you define it.

Fried: I would define it in terms of the concrete impositions on the woman, which so offended the court in Griswold and which are not present in the Roe situation.

Finally, I would like to make quite clear that in our view, if Roe were overruled, this court would have to continue to police the far outer boundaries of abortion regulation under a due process rational basis test and that that test is muscular enough, as Chief Justice Rehnquist said in his dissent in Roe, to strike down any regulation which did not make adequate provision . . . .

I think the important thing to realize is that, when Roe was decided, it swept off the table regulations in the majority of American jurisdictions, including regulations recently promulgated by the American Law Institute, and declared a principle which said that it was unfair and unreasonable to regulate abortion in ways that most Western countries still do regulate abortion.

We are not here today suggesting that the court would, therefore, allow extreme and extravagant and bloodthirsty regulations and that it would lack the power to strike those down if they were presented to it. But it is a mistake to think that alone, among government institutions . . . .

Viability of Fetus

(From Frank Susman, a St. Louis lawyer representing those who successfully challenged the Missouri abortion law in lower courts.)

Mr. Chief Justice, and may it please the court, I think the solicitor general’s submission is somewhat disingenuous when he suggests to this court that he does not seek to unravel the whole cloth of procreational rights, but merely to pull a thread. It has always been my personal experience that, when I pull a thread, my sleeve falls off. There is no stopping. It is not a thread he is after.

It is the full range of procreational rights and choices that constitute the fundamental right that has been recognized by this court. For better or for worse, there no longer exists any bright line between the fundamental right that was established in Griswold and the fundamental right of abortion that was established in Roe. These two rights, because of advances in medicine and science, now overlap. They coalesce and merge and they are not distinct.

Justice Antonin Scalia: Excuse me, you find it hard to draw a line between those two but easy to draw a line between first, second and third trimester.

Susman: I do not find it difficult . . . .

Scalia: I don’t see why a court that can draw that line can’t separate abortion from birth control quite readily?

Susman: If I may suggest the reasons in response to your question, Justice Scalia. The most common forms of what we generically in common parlance call contraception today, IUDs, low-dose birth control pills, which are the safest type of birth control pills available, act as abortifacients. They are correctly labeled as both.

Under this statute, which defines fertilization as the point of beginning, those forms of contraception are also abortifacients. Science and medicine refers to them as both. We are not still dealing with the common barrier methods of Griswold. We are no longer just talking about condoms and diaphragms.

Things have changed. The birth line, if there ever was one, has not been extinguished. That’s why I suggest to this court that we need to deal with one right, the right to procreate. We are no longer talking about two rights.

Kennedy: Do you agree that the state can forbid abortions save to preserve the life of the mother after the fetus is, say, 8 months old?

Susman: If I understand the question, Justice Kennedy, I think the health rights of the woman always are supreme at any stage of pregnancy.

Kennedy: Suppose the health rights of the mother are not involved, the life or health of the mother are not involved, can the state prohibit an abortion after the fetus is 8 months old?

Susman: Yes, I am willing to recognize the compelling interest granted in Roe of the state in potential fetal life after the point of viability.

Kennedy: But that is a line-drawing, isn’t it?

Susman: Yes, it is. But that is a line that is more easily drawn. I think there are many cogent reasons for picking the point of viability, which is what we have today under Roe.

First of all, historically, both at common law and in early statutes, this was always the line chosen. Whether it was called quickening or viability, there is little difference time-wise.

O’Connor: Well there is a difference, is there not, in those two?

Susman: Technically, between those two definitions, Justice O’Connor, yes. Quickening had less of a medical significance. It was when the woman could first detect movement.

Procreational interests are, indeed, implicit in the concept of ordered liberty, and neither liberty nor justice would exist without them.

It is truly a liberty whose exercise is deeply rooted in this nation’s history and tradition. I think it is somewhat ironic that the sole historical source cited by the solicitor general in his brief in an effort to dispute this fact is a work by Mr. James Moore, “Abortion in America.”

Thirty percent of pregnancies in this country today terminate in abortion. It is a high rate. It is a rate that sometimes astounds people, but it is a rate that has not changed one whit from the time the Constitution was enacted through the 1800s and through the 1900s. That has always been the rate.

It is significantly less than the worldwide rate. Worldwide, 40% of all pregnancies terminate in abortion. Abortion today is the most common surgical procedure in the United States, with the possible exception of contraception.

It remains today, as it was in the days of Roe, 17 times safer than childbirth, 100 times safer than appendectomy, a safe procedure, minor surgery.

I suggest that there can be no ordered liberty for women without control over their education, their employment, their health, their childbearing and their personal aspirations. There does, in fact, exist a deeply rooted tradition that the government steer clear of decisions affecting the bedroom, childbearing and the doctor-patient relationship as it pertains to these concerns.

Tradition of Freedom

Chief Justice William H. Rehnquist: It is a deeply rooted tradition, but surely abortion was regulated by the states in the 19th Century and in the 20th Century?

Susman: Yes, but I think it is necessary to go back and examine, as the historical brief does and other works, as to the reasons those regulations were enacted. Similarly, they were not done to protect the fetus. Those were not the purposes.

If you look for example . . . .

Rehnquist: If you say there is a deeply rooted tradition of freedom in this area, that suggests that there had been no legislative intervention to me. What you are . . . that simply is not the fact.

Scalia: Let me inquire--I can see deriving a fundamental right from either a long tradition that this, the right to abort, has always been protected. I don’t see that tradition. But I suppose you could also derive a fundamental right just simply from the text of the Constitution plus the logic of the matter, or whatever.

How can you derive it that way here without making a determination as to whether the fetus is a human life or not? It is very hard to say it just is a matter of basic principle that it must be a fundamental right unless you make the determination that the organism that is destroyed is not a human life. Can you as a matter of logic or principle make that determination otherwise?

Susman: I think the basic question . . . whether this is a human life or whether human life begins at conception, is not something that is verifiable as a fact. It is a question verifiable only by reliance upon faith.

It is a question of labels.

Neither side in this issue and debate would ever disagree on the physiological facts.

Both sides would agree as to when a heartbeat can first be detected. Both sides would agree as to when brain waves can first be detected.

But when you come to try to place the emotional labels on what you call that collection of physiological facts, that is where people part company.