A reader inquires what the leaked Alito draft would mean for Doe v. Bolton, the companion case to Roe v. Wade that the Court decided on the same day in 1973. Justice Blackmun also wrote the majority opinion in Doe, and I daresay that it’s an even worse piece of judicial craftsmanship than Roe.
The plaintiffs in Doe challenged a recently adopted Georgia abortion law on various grounds. Among other things, they argued that an exception that allowed a physician to perform an abortion “based upon his best clinical judgment that an abortion is necessary” was unconstitutionally vague. In the course of rejecting this argument, Blackmun concluded that the statutory exception should be read to mean that the attending physician’s medical judgment of necessity “may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient.”
In Roe, Blackmun stated that even after viability a state must allow abortion “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” He also emphasized that Roe and Doe, “of course, are to be read together.” So Roe has been widely read to mean that the physician determining whether an abortion is “necessary” for the “health” of the mother may exercise his “medical judgment” in light of the factors that Doe sets forth. Under that reading, an abortionist has unlimited discretion to do an abortion at any time even after viability and all the way to childbirth. (In an opinion in 1998 dissenting from the denial of certiorari, Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, rejected that reading of Doe, opining that it “simply did not address” what is “required as a matter of federal constitutional law.”)
In its one mention of Doe (p. 27, note 40), the Alito draft states that Doe “has been interpreted by some to protect a broad right to obtain an abortion at any stage of pregnancy provided that a physician is willing to certify that it is needed due to a woman’s “emotional” needs or “familial” concerns. The draft opinion’s statement of the various “legitimate state interests” that a law regulating abortion might serve does not suggest that any such law must include the unlimited definition of health that Doe articulated. Even more to the point: The Mississippi law has an exception for “medical emergency” that is expansive but nowhere near as broad as Doe’s definition of health, and the draft’s conclusion that the Mississippi law satisfies rational-basis review makes no mention of Doe’s definition. It’s thus clear that, like a thorn on an uprooted weed, Doe’s definition of health has no existence apart from Roe.