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Whole Women's Health v. Hellerstedt: What Impact does it have on Roe v. Wade?

Today’s opinion on abortion out of the Supreme Court is very important, but its impact on Roe v. Wade is being overstated.  Whole Women’s Health v. Hellerstedt is no doubt a victory for the pro-choice movement, but the question arises: will there be a frontal attack on Roe v. Wade now that abortion opponents have been stifled in their flank attacks?

When I wrote the backstory of Roe v. Wade in my 2015 book, January 1973, Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever, I interviewed Larry Hammond, Justice Lewis Powell’s law clerk from the days of Roe.  I was the first to find out the inside baseball on the decision and the real reasons Roe turned out the way it did.

The surprising result in Roe v. Wade actually originated with Hammond and Powell.  As Powell’s law clerk, Hammond recommended an analytical framework that became the centerpiece of Roe.  The question presented to the Court was when does fetal life begin, or said another way, when can the state protect fetal life?  The Court comfortably resolved the issue of a woman’s constitutional right to an abortion—that was found in the right of privacy taken from multiple provisions in the Constitution that protected an individual from unwarranted governmental intrusion or interference in personal decisions, like contraception or when to bear a child.  

But the nub still remained.  Two interests were involved: that of the woman’s right to choose and that of fetal life.  Since there was disagreement on when fetal life began, or could be protected, Hammond recommended that Powell convince the other justices to adopt the standard from a lower court decision out of Connecticut that focused on “viability,” that is, when the fetus could survive outside the womb.  This was a cut-off point at the end of the sixth month of pregnancy.  

No one had argued viability.  In fact, when the decision came down, Sarah Weddington, who argued the case in the Supreme Court, wondered about the origin of the analysis.

Justice Blackmun in his drafts of Roe first decided the Court should not pick a dividing line as to when a state could protect fetal life.  He subsequently picked the end of the first trimester. Here is where Hammond and Powell made their arguments for viability and prevailed.

The result caused a political revolution—not right away, but over the next decade.  The Religious Right arose—later many became Tea Party members.  “No compromise” was their political weapon of choice.  The heart of the debate on abortion was that viability was too deep into a pregnancy—many could not accept that the Court could impose this standard.  It seemed un-democratic. The pro-choice side argued that fundamental constitutional rights should not be subject to a referendum.

Our politics changed.  We see the deadlock in government.

Back to Whole Women’s Health.  So what has this case added to the debate?

First and foremost, it does not attack the viability standard.  The law assumes viability is the established line.  The Texas statute was instead about “who can perform and where.”  This was a sideways attempt to limit access to abortion by making it less readily available.  The Supreme Court followed its precedent, with some expansion, to find that the limitations (a physician must have credentials at a nearby hospital and the abortion clinics had to comply with surgical and ambulatory care requirements) were an “undue burden” on a woman’s constitutional right to an abortion.

While the result could have gone the other way, this is not a surprising result.  But it also does not change Roe v. Wade in any fundamental way.

The attack on viability is yet to come.  And the question is whether opponents will now line up to come directly at that precedent.  Obviously, this makes the coming election for president a key to how this will be resolved.

But keep in mind a few things that are not being addressed in the national media.

First, viability has an obvious flaw in that the time for viability changes as technology and medicine advance.  Some has been written about this issue.  But, as most doctors will tell you, advances probably can only go so far given the need for lung development.

The non-obvious question posed by Roe and the way it was really decided is to be found in the advances in pregnancy detection.  When Roe was written almost a half a century ago, Hammond and Powell (and Thurgood Marshall) were persuaded to take the cut-off point from Blackmun’s proposed first trimester out to the end of the second trimester (viability) because the women who needed abortions the most—the poor, the young, the inexperienced—would not necessarily recognize the pregnancy before the end of the first trimester (or would be afraid to tell boyfriends or other family members). This was long before the advent of highly reliable pregnancy tests that now can be purchased at any drugstore.

The storm is yet to come.  The Supreme Court has delivered a victory for pro-choice advocates.  The real issue, though, is will this drive opponents to come straight after Roe v. Wade?  Time and a presidential election will tell.

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