Philadelphia Reflections

Must Roe Lead to Wade?

The case of Roe v. Wade is famous enough, but it actually begins twenty years before 1879, with the discovery of anesthesia in 1848. Anesthesia had made abortion simple, but it triggered thousands of deaths from puerperal sepsis during the interval before Pasteur and Lister popularized its bacterial cause and prevention. Seeing no better solution, the AMA urged its members to seek state laws to curtail the epidemic with abortion prohibitions. Connecticut in 1965 still retained an unrepealed law against contraceptives even in the bedroom, hung over (and largely unenforced) from earlier days. At that time, the AMA was horrified by the mayhem of women dying like flies from having abortions, after anesthesia but before aseptic technique. By 1911 the AMA voted to take steps to reverse things, but various church groups among members were better politically organized to paralyze nation-wide action, although many states did repeal the outmoded laws. In fact, such battles were still being fought in 1950, when I first entered the House of Delegates. The Medical Association at its subsequent national conventions was restrained by the declaration of its more religious members that they would resign if the Association now voted to reverse activities it had fervently demanded earlier. The result was an unfortunate political straddle which both weakened the Association by its loss of academic members, and gave out a misleading public image of where it stood. The law was obsolete, badly needed to be reviewed, but for internal political reasons could not obtain the medical leadership to go forward while still retaining membership among some religious groups or their opponents. That is, it was unable to choose between two groups of members, perhaps deciding wrongly which ones to pick. The resultant seizure of control of the abortion issue by nonphysicians caused many destructive effects on organized medicine's leadership of purely scientific matters. This image must now be somehow repaired because the mistakes appeared to the public as implying social indecision in the face of scientific facts. The present image, despite adding thirty years to public longevity, is now "You may ask them questions, but you needn't take their advice." Until quite recently, the expression to obey was "The doctor who treats himself, has a fool for a patient."

Lawyer doesn't come out of this looking very good, either. This is another profession where advantage can be taken, but when trust is destroyed, you suffer for it. It is not possible to say that a judge only follows the Constitution when privacy is nowhere found in the Constitution but still dictates stretching the privacy in the bedroom into general privacy, not merely for sodomy. but for any and all criminal activity. Robert Bork pointed out that this is some sort of blind alley to be avoided. But he is dead and the rest of his profession is leading us further down the path. Over and over, Bork exclaims that the Supreme Court must not take the role of a legislature and invent rights which could never pass the legislative branch. That's what Anton Scalia said, and Bork converted to the religion. The courts interpret the law as written by the Legislative Branch, and merely bite their lips until the legislature says to intervene. Bork found countless instances of Congress saying impossible things, but Congress refused to act. Congress wants to get reelected, so if they refuse there must be public resistance. Roe v. Wade is merely one example of what happens if the Supreme Court invents the Constitution and resorts to unauthorized workarounds. They may be entirely right, but they weren't elected. It will require a century to undo the adventures of the Warren Court into judicial legislation, many of which have yet to come to the surface and take dozens of small steps to correct. But Congress can reverse mistakes in a week. If they refuse to touch it, there's some reason which a workaround will merely delay.

Roe v. Wade was an example of doing the right thing for the wrong reason. Underneath it all, was Justice Douglas in 1965, legislating rights that Congress had been refusing to touch, and not stretchable from the Constitution. The real tragedy of Roe v. Wade has very little to do with abortion.

Originally published: Wednesday, April 03, 2019; most-recently modified: Friday, May 24, 2019