Friday, July 1, 2022

Insubstantial Due Process -- what Roe never said

 “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”  (HLR, Vol 87: 1, p 7 – Laurence Tribe)

Roe enshrined bodily privacy in constitutional theory -- seemingly no one takes exception to that today.  Roe went on to proclaim it takes a "compelling state interest" for a law to override fundamental privacy.

Then Roe fudged.

“One reads this passage several times before becoming convinced that nothing has been inadvertently omitted.”

‘ … the compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation  … after viability thus has both logical and biological justifications.’  

“Truly, this mistakes a 'definition for a syllogism' and offers no reason at all for what the Court has held."  (Ibid. p 4 -- quoting John Hart Ely, YLJ 1973 April; 82: p 924)

The Roe majority took upon itself what would correctly be be seen as a legislative job -- matching the compelling interest standard to the stages of prenatal development -- as opposed to interpreting words of law.  There being no consensus on the worth or rights of fetuses "deeply rooted in this Nation’s history and tradition" -- the Roe majority found itself out in substantive-sorting land all by its lonesome.

But instead of coming back with a substantive delineation of prenatal life (v. privacy) -- Roe served up a fiat trimester policy that gave prochoice nearly everything it wanted.

Roe disguised its baked-in substantive holdings on fetuses by not articulating any one in any part.
 
What will any future Supreme Court be able to say once medical technology enables extracting a fetus temporarily from the womb and then returning it to complete its gestation -- when the cosmic question is legal personhood in the womb?

Coming soon?!