The Corner

Buck On Doe V. Bolton

Roe v. Wade created only a limited constitutional right to abortion, subject to state limitations, particularly in the third trimester. Yet Roe’s companion case, Doe ve. Bolton exploded Roe’s limits by requiring that any state restrictions include an exception for the health of the mother, defined to include emotional and psychological factors. At least, that’s the conventional account (see, e.g., Ramesh’s recent piece here). Legal blogger Stuart Buck suggests this account is wrong. According to Buck, the language traditionally interpreted as requiring an exception for the expectant mother’s emotional and psychological well-being did not establish such a mandate as a matter of federal constitutional law. Rather, it was interpreting the meaning of the state statute at issue, under which health was not limited to physical health and did include emotional and psychological factors. Although the Doe decision is over three decades old, this dispute continues in the litigation over state partial-birth abortion bans. For those interested in the issue, the Buck post is worth a look.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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