Raw Judicial Power

NOTE: Below is the third chapter of “Racketeer for Life: Fighting for Culture of Death from the Sidewalk to the Supreme Court” by Pro-Life Action League founder and national director, Joe Scheidler. This chapter, titled, “Raw Judicial Power,” includes Joe’s account of learning about the Supreme Court’s Roe v. Wade and Doe v. Bolton decisions, handed down on this day in 1973. You can order an autographed copy of “Racketeer” here.

On January 23, 1973, I was home from work with the flu, so I wasn’t paying attention to the news. The following day, I read about Lyndon Johnson’s death and the impending end of the Vietnam War, then turned to the court’s abortion rulings that had been announced the previous day.

I was already sick, but reading about the court’s decision made me feel even worse. In those days, there were four Chicago dailies—the Tribune, the Sun-Times, the Daily News, and Chicago Today. As a PR executive, I read them all. Each covered the Roe ruling and the court’s decision to divide pregnancy into three stages, decreeing that no state could prohibit abortion in the first trimester. Abortion could be regulated in the second trimester, but only in ways designed to safeguard the woman’s health. Only in the third trimester could states try to safeguard the lives of the unborn.

Of the four newspapers, only the Daily News devoted any real attention to Doe v. Bolton. Their editorial focused on a line from that ruling about regulating late-term abortions, stating that “the medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. It is room that operates for the benefit, not the disadvantage, of the pregnant woman.”1

The Daily News pointed out that by letting the abortion decision rest on emotional and familial factors, the Doe ruling enacted abortion-on-demand throughout the full term of pregnancy in all fifty states. No unborn child was safe. No state government or national legislature—much less fathers—had the authority to protect them.

As I read, I thought about our unborn child, five months in the womb. Initial reporting about Roe made it seem that her life might still be protected under law. The Doe ruling made it clear that it was not.

The twin rulings struck me as a suicide note for our country. Our claim to be the land of the free and home of the brave, to be refuge for the tired and the poor, now seemed a ghastly sarcasm. The huddled mass of dead babies in the picture on the flyer at the Civic Center rally was a reality now enshrined in law. The slaughter of the innocents in Bethlehem was two millennia ago. And the Nazi atrocities were horrifying, but that was under a dictatorship. But now the United States of America had stripped away its most cherished unalienable right—life—from its most vulnerable population. I felt like a foreigner in my own country. We had embarked on a program of destroying our posterity. I remembered the eighteen Scheidlers in Munich and my promise to fight.

I returned to work, but I’d lost interest in my clients. I became preoccupied with the issue of abortion, hunting everywhere for pro-lifers, attending meetings, and reading everything I could find on abortion.

I read the full text of the Supreme Court’s rulings. Justice Harry Blackmun authored both opinions. In Roe, he wrote, “We need not resolve the difficult question of when life begins.” Any elementary biology student knows that life begins at conception—the question is when personhood begins. Blackmun sidestepped, spending several pages on the history of abortion and abortion law around the world. He noted that abortion and infanticide were common in ancient Rome and that the Hippocratic Oath, which included an abortion ban, had never been taken seriously by ancient physicians.

My own historical research showed what Blackmun had left out of his opinion. For example, as medical licensing was developing in the 1870s, there was a strong women’s rights movement in America. Leaders across the nation condemned abortion as a barbaric crime against women and children. When states started regulating medical practice, abortion bans were among the first statutes passed. By 1900, every state had passed laws banning abortion except in cases where it was deemed necessary to save the life of the mother.

It was in 1962 that the abortion issue broke into the wider national consciousness. The host of the children’s program Romper Room, “Miss Sherri” Finkbine of Phoenix, Arizona, had taken thalidomide tranquilizers that her husband, a teacher, purchased while chaperoning a class trip to England. When Miss Sherri read an article linking the pills to birth defects, she told her doctor, and he counseled her to end the pregnancy. He set up a meeting with the hospital review board, which approved the abortion.

Moved to warn other women about thalidomide, she told her story to the Arizona Republic. What she didn’t realize was that the review board was breaking the law. Arizona law permitted abortion if the mother’s health was endangered—that wasn’t the case here.

When the magazine revealed her identity, the story generated a lot of publicity, and the hospital canceled the abortion. She and her husband flew to Sweden to end the pregnancy. In August 1962, her story was on the cover of Life magazine.

I remembered reading the story, and I knew she made the wrong decision, but I had no idea that this story was already being used to push for changes to state abortion laws. The American Law Institute’s Model Penal Code of 1962 redefined abortion so that it would not fall under “homicide,” which allowed hospital review boards to approve abortions more broadly than ever before. Under these guidelines, abortion was permitted if the baby might be deformed—or if the child was a result of rape or incest.

From 1967 to 1970, thirteen states enacted such laws, each requiring that a woman seeking an abortion reside in the state where it would be performed. New York passed a more liberal law in 1970, eliminating the review board and granting abortion on demand up to twenty-four weeks gestation at the doctor’s discretion. Unlike the “reform” laws in other states, New York had no residency requirement, in effect legalizing abortion for any woman able to travel there. In his Roe opinion, Blackmun cited the New York law as proof that legal abortion was safe for the mother. He opined that the rationale for the late-1800s abortion bans no longer existed.

The Roe decision focused specifically on the Texas abortion law, but the ruling effectively struck down all the abortion bans still on the books of most states. Doe v. Bolton was aimed at the American Law Institute’s (ALI) legislative reforms, specifically one passed

in Georgia regarding the hospital review boards authorized to make the life-or-death decisions for the unborn. Under the ALI guidelines, if a doctor thought a patient should have an abortion, he had to make an argument for necessity strong enough to convince enough doctors on the board. After Doe, doctors could make those determinations themselves. Now all a woman needed to obtain a legal abortion anywhere in the United States was an abortionist willing to take her money.

In order to strike down all the nation’s abortion laws, Justice Blackmun had to find something in the Constitution that gives a woman a right to terminate a pregnancy. He found that in the “right to privacy”—but of course there is no such right in our founding documents. I read that Blackmun had been the attorney for the Mayo Clinic in the 1950s, so he had to be aware that when treating a pregnant woman, the doctor is caring for two patients. Yet throughout Roe and Doe, Justice Blackmun uses the word patient in the singular. For Blackmun, the unborn baby ceased to exist.

The privacy right Blackmun used to justify his rulings was not his own invention. Justice William Douglas set the precedent in 1965 with Griswold v. Connecticut, the case that struck down state laws banning contraceptives. Douglas wrote that the First Amendment’s freedom of religion, the Fourth Amendment’s right to freedom from warrantless searches, and the Fifth Amendment’s right to remain silent together constituted a “penumbra” of a right to privacy. The word derives from Latin for “nearly a shadow.” It’s the hazy part on the edges of a shadow where light is partially obscured. A partial eclipse casts a penumbra. Streetlights do too. And that’s the word the court chose when establishing a constitutional right to privacy: a shadow of laws that somehow permits a right to kill the unborn.

Reading about the rulings, I couldn’t decide which was most shocking, that Justice Blackmun had composed such nonsense or that seven justices had accepted it. But I wasn’t surprised to find just how closely abortion decisions were linked with the birth control cases. Griswold had granted married couples access to contraception in 1965, and in 1972, Eisenstadt v. Baird declared that birth control had to be made available to single people as well. Justice William Brennan wrote in his Eisenstadt opinion that “if the right of privacy means anything . . . it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Justice Brennan circulated his opinion to his fellow justices on the same day the court heard oral arguments in the Roe and Doe cases. Eisenstadt was about contraception, so Brennan was on the mark when discussing a decision to beget a child. But he went further, stating that the government had no role in the decision to bear a child. For him, the oral arguments in the abortion cases would be a mere formality. He already knew how he would vote.

The one thing that kept me from total despair was that the decisions were not unanimous. Two justices had dissented: Byron White and William Rehnquist. Justice White’s dissent was powerful:

I find nothing in the language or history of the Constitution to support the court’s judgment. The court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has the authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

It was good to know that there were still bastions of logic and reason on the court. As Justice White pointed out, abortion did not come to America through the democratic process. It seemed to me at the time, and it still does, that if the American people could see the reality of what this right actually entails, they would demand that the court reverse these outrageous decisions.

One other hopeful detail was provided by Justice Blackmun himself. “If this suggestion of personhood is established,” he wrote at the end of the Roe opinion, “the appellant’s case, of course, collapses.” It was clear that a major thrust of the pro-life movement would have to be proving the personhood of the unborn.

You can order an autographed copy of “Racketeer for Life: Fighting the Culture of Death from the Sidewalk to the Supreme Court” here.

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