Never heard of it? Not surprising, but sad. That decision set the divisive tone of American political debate for the 20th century's last quarter and probably far into this one. Upon it has rested the fate of millions, in their quality of life and in their very existence. Its impact is many times more consequential than the current uproar over gun rights.
Doe v. Bolton is the companion to the Roe v. Wade case that legalized abortion. Doe v. Bolton, issued on the same day, took Roe a step further by legalizing abortion for any reason at any time during pregnancy. In effect, Doe v. Bolton, however unintentionally, negated Roe's reasonable proclamation that the constitutional right to an abortion is not absolute.
Despite Doe's import, you'll notice that very few stories today about Roe's 40th anniversary mention it. (here, here, here, here) for just a few.)This omission is extreme in its ignorance or dishonesty.
Doe's significance is that it seeks to define Roe's declaration that abortion is permitted to preserve a woman's health. Doe's interpretation of the meaning of "health" is so broad that it encompasses just about every possible reason — real or concocted — put forward by the woman and her doctor to legally justify an abortion up to and including the very moment of birth.
In Doe, the court said: "We agree … that the medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman's age — relevant to the well-being of the patient. All these factors may relate to health."
So, "I can't stand the thought of another baby in my life" falls under Doe's definition as legal justification. Affordability, being unmarried, plans to attend college or employment and the many other reasons — serious or superfluous — also are protected. Not just in the early months of pregnancy, but throughout. Maybe you would have a hard time finding a physician who would do a late-term abortion for superfluous reasons, but the point here is that the most innocent of human life is without any legal protections.
Roe and Doe sought, quite unsuccessfully, to reach a balance between a woman's right to an abortion and an unborn person's (fetus' if you prefer) right to live. According to Roe, government does have an interest in preserving the life of the unborn child. So, when does that happen? When does preserving unborn life become important enough to restrict a woman's right to end that life? The answer comes back from Doe: Never.
The abortion industry and its ideological and moneyed supporters such as Planned Parenthood, NARAL Pro-Choice America and Personal Pac of Illinois are loath to acknowledge this conundrum. Rarely do they or the media acknowledge Doe's existence.
The failure to view Roe and Doe as inseparable have left most Americans ignorant of the consequences of the two cases. Thus, public opinion polls that ask, "Do you want Roe v. Wade overturned?" are a sham, worthless. (Some examples of the use of the bogus question by abortion-rights advocates are Ashley Killough, Aaron Blake and Jenna Tosh, among others.) Yet abortion industry supporters, as "evidence" of their "moderation," shamelessly continue to cite polls that a majority of Americans would not overturn Roe. Also useless are polls that ask if you are pro-choice or pro-life since the labels are so fuzzy.
A better question is whether Americans favor restrictions on abortion. Many do. By large majorities. Such as a ban on partial-birth abortions in the last six months of pregnancy except to save the mother's life. (See this continuing Gallup poll that shows a consistent majority of Americans do.)
Later court decisions tinkered with the question of rights in balance, but none has overturned Doe's broad definition of health. In 1992, the plurality ruled in the landmark Planned Parenthood v. Casey case that abortions may be restricted, "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health (my emphasis added) of the mother." In the 2000 Stenberg v. Carhart decision, the court overturned a Nebraska law banning partial-birth abortions because it failed to include an exception for women's "health."
Abortion court rulings have left Americans with complicated, confusing and sometimes ludicrous case law that in the final analysis permits unrestricted abortions. That's how the abortion industry wants it. That puts them in the same class as gun-rights absolutists who demand no restrictions on the right to bear arms.
An earlier version of this column appeared in the Chicago Tribune
Sandra Cano, the woman in Doe v. Bolton, repudiates the decision and says her name was fraudulently used in the case. Read it here.