Is <i>Roe v. Wade</i> Moot?

“The Court’s verdict on abortions provides a sound foundation for final and reasonable resolution of a debate that has divided America for too long.” Those were the words with which, 40 years ago, the New York Times greeted the decision of the United States Supreme Court to prohibit the states from outlawing most abortions. Whatever one makes of the decision of the Nine, it is hard to think of a single thing the Supreme Court resolved. The fact is that as Roe goes into its fifth decade, the differences over abortion today are more bitter than ever.Not to single out the Times. Its error of prognostication was not a whole lot worse than a number of the other distinguished newspapers, even if it did aver 40 years ago that “nothing in the Court’s approach ought to give affront to persons who oppose all abortion for reasons of religion or individual conviction.” The Washington Post, Los Angeles Times, Chicago Tribune, nearly all of the major dailies came out on the side of the seven-justice majority of the Court. The Wall Street Journal had a particularly nuanced view.There were also some major newspapers that opposed the Nine. Here is the Sentinel, which is issued at Milwaukee: “The court, in effect, has condemned millions of the unborn to death. Because they are incapable of life outside the womb, they will never have a chance to speak for themselves.” This newspaper wasn’t being issued in the 1970s, but we don’t mind saying that we are among those who have, as we’ve studied the Constitution over the years, come to the view that the better part of wisdom in Roe was with the dissenters, Justices Rehnquist and White.*Rehnquist disputed that a “right of privacy” was involved. That goes back to a case called Griswold v. Connecticut, in which an official of Planned Parenthood in the Nutmeg State, Estelle Griswold, overturned a law under which she had been fined for disseminating birth control. The decision she won is the one in which the Court reckoned that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Connecticut’s ban on contraception, the official case summary says, violated “the right of marital privacy which is written in the penumbra of specific guarantees of the Bill of Rights.”A “penumbra” is, according to the Merriam-Webster, a space of partial illumination, which in Griswold turned out to be an understatement. Justice Potter Stewart wrote a famous dissent in which he was particularly withering in respect of the finding by the court’s majority that birth control was covered, in part, the by rights protected by the Third Amendment. That’s the article that prohibits the quartering of soldiers in a private home in time of peace without the owner’s consent. “No soldier,” Justice Stewart fairly exclaimed in his dissent, “has been quartered in any house.”It’s not our purpose here to argue for any particular contours of abortion law. It is but to remark on what has emerged from the penumbras of Griswold and Roe. It is a ghoul that has, in some sections of New York City, claimed 60% of the pregnancies not ended by miscarriage. In 2009, the average abortion rate in the city — meaning the percent of pregnancies not ended by miscarriage that are ended by abortion — was found to be 41%. No wonder that 40 years after Roe the issue is anything but settled.Alarm over abortion was once voiced most strongly by the Catholic Church. But we have been struck in recent years at the entry into the debate of the Jewish leadership, which is all the more noteworthy because of the general liberality in the Jewish community over social issues. We noted this two years ago, when a press conference was held by leading clergymen in the city over the publication of the 41% finding. Among those decrying the crisis was the leader of Agudath Israel of America, Rabbi David Zweibel. This year, both Chief Rabbis of Israel have issued a blunt warning against abortion.One of the tragedies of Roe v. Wade is that the woman at the center of the case — here real name is Norma McCorvey — changed her mind. In 1995, years after the case was over, she went back to court and asked for the decision she won to be overturned. She was turned aside by the district court because the question was moot. The appellate judges who ride the Fifth United States Circuit agreed. One, Judge Edith Jones, issued an opinion in which she concurred that Ms. McCorvey’s case was moot but remarked on the irony.“Mootness,” Judge Jones wrote, “confines the judicial branch to its appropriate constitutional role of deciding actual, live cases or controversies.” Yet Roe was born, the judge wrote, “in an exception to mootness.” After all, it reached the Supreme Court long after Ms. McCorvey’s pregnancy was over. Even though the mootness doctrine dictates that Ms. McCorvey, in coming back to the court, had no “live” controversy, Judge Jones wrote, “the serious and substantial evidence she offered could have generated an important debate over factual premises that underlay Roe.”She noted that there were “about a thousand affidavits” of women who had abortions and claimed to have suffered long-term emotional damage. She cited affidavits questioned the assumption in Roe that abortion decisions would be made in consultation with a private physician. She saw a different “sociological landscape” for unwed nmotherhod. “If courts were to delve into the facts underlying Roe’s balancing scheme with present-day knowledge,” she wrote, “they might conclude that the woman’s ‘choice’ is far more risky and less beneficial, and the child’s sentience far more advanced, than the Roe Court knew.”Judge Jones did not presume to suggest that Roe be overturned. She did suggest that “hard and social science” would “progress even though the Supreme Court averts its eyes.” She foresaw a time when neonatal science would “push the frontiers of fetal ‘viability’ ever closer to the date of conception.” She warned that constitutional decisionmaking at the Supreme Court had left the nation “in a position of willful blindness to evolving knowledge.” Whatever one can call the question it would be hard to call it moot.________* White attached his dissent to a case called Doe v. Bolton, which the Supreme Court announced the same day as Roe v. Wade but which involved a case arising at Georgia.

Is <i>Roe v. Wade</i> Moot?

Is <i>Roe v. Wade</i> Moot?

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