Reversing Roe: State Imposition of a Theory of Life Under Gonzales

BY KRISTY ALVAREZ – Abortion is one of the most polarizing issues that society has been grappling with since the enactment of criminal abortion laws in the 19th century.[1] Pro-life and pro-choice advocates, with matched vigor and determination, proclaim to speak the absolute truth on the matter. Ultimately, these differing views have been slowly seeping into our political and judicial arenas, the effects of which society is still experiencing.  In Roe v. Wade, 410 U.S. 113 (1973) the Supreme Court, regarding abortion rights, clearly and succinctly stated “Our task…is to resolve the issue by constitutional measurement, free of emotion and of predilection.”[2] Yet, today that statement no longer seems to be accurate with the Court increasingly using just that–emotion and predilection–to get to its most recent decisions regarding abortion rights. For example, in Gonzales v. Carhart, 550 U.S. 124 (2007) the Court, in substantiating its decision, broadly declared that “respect for human life finds an ultimate expression in the bond of love the mother has for her child…. Whether to have an abortion requires a difficult and painful moral decision [and] it seems unexceptional to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.”[3] These vastly different rationales and opinions from the Supreme Court illustrate the Court’s allowance of the unfortunate diluting of a woman’s right to choose. The Court has permitted the case law on abortion rights to get fragmented to the point where a woman no longer has a broad right to choose. Detrimentally, sexual politics have found their way into the discussion and have (erroneously) allowed religion, morality, theories of life, etc. into constitutional law; matters that were, among other things, expressly rejected by the Court in Roe.

In support of its holding, the Gonzales Court likened a fetus to an actual person. In regards to the Act, the Court stated that it simply protects innocent human life and “expresses respect for the dignity of [that] human life.”[4] In this same vein, the Court even referenced medical opinion to suggest that the fetus feels pain. Such a comparison of a fetus to a person is not only inappropriate ideological overreaching, but it is also contrary to Roe. In response to whether a fetus is a “person,” the Court in Roe explained:

“[t]he Constitution does not define “person” in so many words…. Section 1 of the Fourteenth Amendment contains three references to “person”…. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. All this… persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn.”[5]

Thus, in Roe the Court specifically noted that a fetus is not a “person” as that term has been historically defined. Accordingly, it found that “by adopting one theory of life [the state] may [not] override the rights of the pregnant woman that are at stake.”[6] In other words, the Court held that the state’s interest in preservation of life could not come at the cost of forcing a woman to have a child; the state could not impose its theories of life or morality onto a woman. Nonetheless, the Gonzales Court used the fetus/person comparison to establish the notion that killing a person is morally reprehensible.  Furthermore, in Roe the Court took a contractarian view of choice and divided the abortion matter into a public and private sphere model. This resulted in an intermediate or strict scrutiny approach with the Court holding that in the first trimester a woman had an absolute right to choose. Therefore, unless the health of the mother was in danger, the state had to stay out of the decision. However, in Gonzales the Court took an entirely opposite approach to the decision-making process. The Court ignored the private and public sphere model and instead went with the polycentric model where the state is an involved party in the decision and the level of scrutiny is a rational basis and undue burden standard. As such, the Court’s approach in Roe and Gonzales can be best described as night v. day.

Post Gonzales

In Gonzales’ aftermath there is now great inconsistency. The uncertainty of the point of life has allowed a woman’s right to choose to be significantly fragmented. The only thing that is clear at this point is that the level of scrutiny is no longer strict and that a woman’s right to choose has been severely hampered; especially given that absent an as applied challenge doctors may not feel comfortable to perform the procedures. Ultimately, Gonzales detrimentally formalized Roe and further fragmented the case law; there is no longer a broad right to choose. With its holding in Gonzales, the Court took a complete retreat from its Roe decision and in doing so, allowed Roe’s foundational principles to be critically impaired. As Justice Ginsburg wrote in her dissenting opinion in Gonzales, disputing the majority’s claim that the opinion was consistent with the Casey and Stenberg precedents, “[t]he Court’s hostility to the right Roe and Casey secured is not concealed.”[7]

Future Vigilance is Imperative

The consequences of Gonzales dramatically dismantling Roe affect not just women’s rights but individual rights in general. Now that state intrusion has been allowed in an area as sacred as the body, there is no telling what the Court may find allowable next. This is especially true considering that allowing the state to dictate what a woman can and cannot do with her body is no different than attempts to condemn homosexuals for what they do with their bodies simply because some view homosexuality (like abortion) as morally reprehensible.

Only time will tell what will be the long-term consequences of the Court engaging in such a mode but, at the very least, it should be a matter that everyone (not just women) should remain highly vigilant of. Constant vigilance by the public in this area is critical given that it should be the people, not the government, who should be engaging in the debate and making the decisions regarding what is right or wrong, acceptable or not acceptable, etc.

[1] Roe v. Wade, 410 U.S. 113 (1973)

[2] Id. at 709 (emphasis added)

[3] Gonzales v. Carhart, 550 U.S. 124, 1634 (2007)

[4] Id. at 1633

[5] Roe,410 U.S. at 729

[6] Id. at 731

[7] Gonzales, 550 U.S. at 1650

Kristy Alvarez is a 2015 Staff Editor of the Race & Social Justice Law Review.

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