Cover Story

'We hereby overrule Roe'

VINDICATION OF HUMAN RIGHTS: Supreme Court of the United States; United States vs. Planned Parenthood; decided Jan. 22, 2073

Issue: "Life Issues," Feb. 24, 2001

This case comes before us on appeal from the Circuit Court, which held that the state of Puerto Rico's restrictive abortion law violates the Constitution. We reverse. Appellees Planned Parenthood contend that the judgment below cannot be reversed without overruling our century-old decision in Roe vs. Wade. Appellees are correct; we hereby overrule Roe. We are met at the outset by the argument, pressed vigorously by Planned Parenthood, that it is too late in this nation's history to revise-much more, to overturn-Roe's declaration in favor of a woman's liberty to choose abortion. Appellees adopt, and enlarge, the reasoning of three justices in a 1992 case affirming Roe. For a generation, they wrote 81 years ago, "people have organized intimate relationships and made choices ... in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives" (Casey vs. Planned Parenthood). Appellees here emphasize that no one now living has had to do without legal abortion as the final solution to the problem of undesired children. It is simply not the business of the judiciary, they conclude, to introduce what they call a "revolutionary" modification of our country's abortion laws. A sufficient response may be that Roe itself violated, massively, the proposed rule of judicial modesty. Roe overturned the laws of (then) all 50 states, replacing a legal regime substantially unchanged for centuries with a revolutionary order of abortion on demand. The argument from settled expectations is not conclusive for another reason. Both sides recognize that Puerto Rico has adopted the view that abortion is a grave injustice, and that Roe withdrew from a whole class of human persons the protection of the laws against homicide. Counsel for Planned Parenthood expressly conceded at oral argument that, if this "pro-life" account of abortion is sound, abortion rights do not earn legitimacy with age. Otherwise, this Court could never have ruled unconstitutional grave injustices like segregation of the races and the conscription of children into the states' abysmal elementary schools. We note especially that Planned Parenthood's settled-expectations argument is indistinguishable from that of the segregationists in the great 1954 case, Brown vs. Board of Education. The argument then was this: Whether "separate but equal" schools for "colored" children comported with the Constitution's guarantee of equality was secondary to the fact that an entire culture had been founded, nearly a century earlier, on separation of the races. The Brown court did not flinch from its duty to vindicate the great human rights guaranteed to all persons on an equal basis by our Constitution. We held in Brown that separate is, in truth, inherently unequal. Perhaps the Brown Justices wondered about the judgment of history. If they did, they sought not the jaded approval of generations (of whites) that reaped the benefits of dehumanizing their black brothers and sisters. They hoped instead for the approbation of future citizens, looking back without the blinders wrought by the ideology of injustice. History has applauded their courage. We hope for the same. Planned Parenthood argues that the Puerto Rico abortion-control law presupposes that a genuine human person comes into being at the moment of conception. They argue further that the "truth" (if any) about when people come to be is unknowable apart from religious belief, and that religious belief is never a permissible basis for a law. They cite the Establishment Clause of the First Amendment as authority for the last proposition. As stated, Planned Parenthood's argument proves way too much. It amounts to the proposition that the law of our country can never know when a person has come to be. But we all agree that there are some persons with enforceable legal rights. No one seriously proposes that the separation of church and state requires us to pretend otherwise. It is true, as appellees contend, that people in our society disagree about the personhood of unborn children. But that fact does not mean that there is no truth of the matter. Nor can the fact of disagreement mean that Puerto Rico, or this Court, must act as if there is no truth of the matter. For that proposal would mean that a whole class of persons could be dehumanized-treated as sub-personal human matter to be exploited-because some (a few?) other people questioned their humanity. The lesson our society learned all too painfully from the experiences of racial slavery and of cloning prompts us to reject this reasoning. And it would be an odd-even useless-equality, which waited upon the will of the strong, or of the most articulate. Planned Parenthood forcefully urges that we abstain from entering judgment on the basis of the truth about unborn children. Granting for purposes of argument that the unborn are entitled to legal recognition, appellees argue that we should nevertheless affirm the lower court ruling against Puerto Rico's protective law. Planned Parenthood sustains this peculiar argument with forecasts of "divisiveness," of great social turmoil, which, along with the (asserted) inevitable continuation of abortion in "back alleys," would render reversal a pernicious gesture, devoid of real benefit to anyone. There is great allure to this reasoning. We would be less than candid if we did not admit that some members of this Court since Roe vs. Wade have credited, and acted in light of, scenarios such as that depicted by appellees. We nevertheless reject the argument. We neither affirm, nor deny, the proffered forecast; moreover, we allow that the immediate aftermath of our ruling may be captured in appellees' sober scenario. But there is a great deal more at stake than the immediate practical effect of our decision. We believe our decision today, in favor of Puerto Rico's prohibition of abortion, is necessary for the survival of our society as one morally worthy of the allegiance of our citizens. We have already said enough to defend the proposition that the measure of a society's moral value is its commitment to protect the weak and defenseless against the strong and powerful. We add to that conviction, weighty and sufficient in itself, the following wider considerations, which center upon the passage, year before last, of the 33rd Amendment to the Constitution. That provision declared that every human individual is a person with rights, regardless of the manner in which that individual was conceived, produced, or otherwise came to be. Implementing legislation has banned all non-sexual human reproduction as an assault upon that great principle of universal personhood. We begin at the beginning. Roe vs. Wade was decided at the dawn of a new way of looking at the terms and conditions under which people come to be. Just a few years before Roe, many people in our society-and most people among our country's media and social elites-took up the view that children should come into the world as wanted. Unwanted children were presumed to be better off dead. By 1973 this mentality had so taken hold of our moral imaginations that destroying "unwanted" children, right up until a moment before birth, was enshrined as a sacred constitutional right. Oddly, at least at a glance, this same era was remarkable for a new, or renewed, commitment to equal concern and respect for all persons, regardless of age or ability or color or ethnic status. The "odd" feature of this picture was this: Children not yet born lived, or died, according to whether another person (the mother) wanted that child; children after birth were to be subjects of unconditional respect. So, too, writ large in society: Whether an unborn child survived was an entirely private judgment about an individual's desire for that child; a surviving child was, to paraphrase Hillary Rodham's popular treatment of the matter, the whole village's business. The psychology called forth was nothing less than a very unstable schizophrenia. The turn-of-the-century balkanization of parental identity aggravated the condition. Our ancestors discovered that five parents could share in the production of a single infant-the providers of the womb, the egg, the sperm, and the contracting couple (who might be man and woman, two men, two women). This tangled web of interest grew more intricate when the contracting pair separated and re-coupled. Our law struggled to introduce clarity in the parent-child relationship. What became clear instead was that when children come to be as the fulfillment of so many parents' desires and plans, and where parents could be either contributors of reproductive assets (eggs, sperm) or have spent thousands to acquire a child, attitudes of ownership and dominion toward children survived past birth. By the beginning of the second Clinton administration perceptive observers saw what was happening: Parents increasingly treated duties to their offspring as conditional upon the child's continuing contribution to the parents' satisfaction. At the same time, cloning was declared a lawful reproductive option. It was not long until cloning ceased to be a novelty. Cloned human beings were produced at first for research, later to meet market demand. Parents of children conceived naturally began to realize that their children were sitting next to clones in the classrooms; the perception grew that clones were taking the best jobs. In short, tensions began to rise. The social crisis that gave rise to the 33rd Amendment has been called, more or less figuratively, our second civil war. The peril was not limited to clones. If it had been, we might never have grasped the truth expressed in the Amendment. Because no one could reliably tell clones from "real" people, the general attitude toward all persons soon sank to a level of disrespect reserved, in principle, for clones. Our whole social outlook changed: People doubted our founders' ideals of unconditional respect for others and the notion that human persons had inviolable inalienable rights. Painful experience taught us that a society cannot maintain unconditional respect for persons after they come to be, as long as persons can come to be as products or things. Person and product are mutually exclusive descriptions of human beings. Our society tragically blended the two for nearly a century, and we are just now beginning to recover from the effects. The 33rd Amendment said nothing explicitly about unborn persons, and abortion continues to this day to be legally available. But the legal availability of abortion is inseparable from the reduction of unborn persons to the status of things, of entities wanted or unwanted. We can credit no other basis for the woman's absolute sovereignty over the child in utero. The 33rd Amendment to the Constitution renders all laws, including judicial decisions, rooted in this way of thinking inoperative. And so, we hereby overrule Roe vs. Wade. It is so ordered. Dissenting note by Justices McBride, Kelley, Randolph, Ovumunu: We stand by the Court's ruling in Roe vs. Wade. The majority ostensibly reaches for a statesmanlike intervention in our admittedly troubled society. But they succeed only in sacrificing women's sexual freedom-and much more-upon the altar of social harmony.

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