The Corner

Doe, Ctd.

Jonathan, regarding your second post on this topic, two points: 1) I doubt that the justices who wish to preserve Roe’s “central holding” will really be swayed by learning that Roe and Doe were more limited than they thought. I don’t think that their willingness to allow restrictions on abortion depends much on purely legal considerations. But one can hope. 2) I don’t recall if Stenberg said anything about mental health, but it did make it pretty clear that an abortion regulation had not only to allow abortion where continued pregnancy threatened health, but to allow whatever the abortionist judged to be the safest type of abortion in the individual case even if continued pregnancy posed no health risks. That’s pretty sweeping, and it makes the mental/physical distinction something of a sideshow. Judge Phyllis Hamilton’s recent injunction makes this point even more explicit.

And here’s an email I received about the question of whether Buck is right about Doe, which I have very slightly edited to remove identifying information:

“I caught your exchange in The Corner with Jonathan Adler about Stuart Buck’s interpretation of Doe v. Bolton, and I went to have a look at Buck’s blog. I think he–and alas, Justice Thomas–are wrong, though he has a point, sort of. I have myself made the same point as you about the Doe radicalization of Roe . . . and having read Buck’s post and reread Doe, I might have to refine the way I make the argument, but I think you and I are still right.

“Here’s why. What Blackmun confronted was a ‘void for vagueness’ complaint about the Georgia law, since its exception for ‘health’ did not specify what that meant–just physical health, or other kinds besides? And yes, Buck is right, he interpreted the statute broadly (following a precedent in the D.C. case of U.S. v. Vuitch) to cover every conceivable form of health, and did not explicitly state this breadth to be a constitutional requirement. But the question is, why did Blackmun make this move?

“The answer is that he was offering what is sometimes called a ’saving interpretation’ of the law. That is, Blackmun believed the statute had to cover all forms of health or else it WOULD BE unconstitutional on vagueness grounds. Blackmun had a choice–he could have offered a narrow reading of ‘health’ (which would have accorded more with common sense), and said that that solved the vagueness problem. But he chose the broad reading, and that counts for something constitutionally, in my opinion.

“Does this mean that a more specific statute, expressly declaring that only danger to a woman’s physical health could justify an exception to a proscription on late abortions, would pass constitutional muster? Maybe, but I doubt Blackmun would have tolerated it. The animosity of later courts toward any kind of ban on any kind of abortion at any stage of pregnancy for any reason is perfectly consistent with Doe. (Notice also that in Doe, Blackmun struck down the restriction of abortions to accredited hospitals, the use of hospital abortion committees, and the requirement of a second physician’s concurrence. In other words, he did everything he could to leave abortions to the unreviewed discretion of single physicians who, in many cases, have a vested interest in performing the procedure, whatever a woman’s reason for desiring one. Talking women out of it, or refusing them outright, was anathema to Blackmun.)

“Practical effect matters here. Some old laws remain on the books banning abortions of various kinds. If Stuart Buck, or Justice Thomas, or anyone else, can name a case in which a licensed physician was successfully prosecuted in the U.S. for no other reason than the performance of a post-viability abortion, I’ll eat volume 410 of the United States Reports. The universal opinion of every prosecutor in America for the last 31 years seems to be the same as yours and mine.”

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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