40 years of Doe v Bolton, the ignored Supreme Court abortion case

Forty years ago Tuesday, the U.S. Supreme Court decided one of its most important cases: Doe v. Bolton.

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 , 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.

Comments

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  • First of all, abortion isn't an industry any more than cavities or broken legs are "industries". Abortion care is part of a complete health system and is only one procedure that may or may not be performed by any given physician.

    Secondly, horror at what this 40-year-old law "might" allow (worst-case-scenarios like pregnant woman having second thoughts decides to abort on her due date, for example) is silly because it doesn't occur in practice. That scenario just doesn't happen. Pondering this is like saying, "let's overturn all the traffic laws that make sense because in theory someone MIGHT make a right on a red into a school bus full of children and claim it was an accident so what are laws for!"

    Getting all worked up about radical scenarios that never play out under a nearly half-century old law is not a cause to undo the legal system.

  • Dennis, do you support Paul Ryan's personhood bill?

  • No.

    But...

    I believe that a human life at conception is a person whose right to life must be balanced against the mother's. Recognizing the personhood at conception makes more sense than recognizing the personhood at birth. As Aquinas might say, there is no intrinsic difference between an infant about to be born and an infant just after birth. Only degrees of difference-e.g. in dependence. At conception, there is a qualitative difference--it has its own genes, etc. It can be said to be entirely unique in an "essential" way.

    So, if we recognize personhood at conception, that shouldn't mean that there is equality with the mother. The law could say that the interests of the mother far exceed the interests of the embryo. But at some point, the interests of the fetus to life grow to the point that they can be given some consideration. Where that is, I don't know, but it's a debate that we haven't had. For the two sides heavily involved in the abortion debate, it's either or. No rights until birth; all rights at the instant of conception.

    That's not the way a democracy should work. That's one reason I oppose the personhood bill, as written. If it could accommodate the balance I talk about above, maybe. But the atmosphere has been so poisoned, a personhood bill is political suicide for pro-lifers.

    I once suggested that the standard that we should consider is that personhood enters into the debate is the same as declaring when a person is dead: the cessation of organized brain waves. Likewise for the establishment of personhood, the beginning of organized brain waves. For some that is much too early. Maybe the old "quickening" idea.

    I'm looking for some legal protection for when the fetus can claim some of the rights of personhood and when a humane, compassionate and caring society will say, as Obama did when talking about gun control, "We must protect even the most innocent life."

    Obviously, I'm not giving hard answers; it's something that society needs to work out. Which is why it was so destructive for the Supreme Court to remove the issue from political discourse and decision-making. And impose its stupid "trimester" solution (as modified by Doe v. Bolton) on the nation.

    I seem to recall someone saying that Aquinas considered abortion okay until quickening. You're Aquinas II, so I'll leave it to you to research it. Whatever he said, I stick by what I said, since I'm applying my on brain to it.

    One more thought: Section 1 of the 14th amendment declares citizenship begins at birth ("All persons born or naturalized in the United States..." and that "nor shall any State deprive any person of life..."). Would it take a constitutional amendment to change that definition to declare citizenship (personhood) begins sometime other than birth? I'm wondering what the authors of the Bill of Rights would say if they knew about today's technology to keep fetuses alive outside of the womb.

  • In reply to Dennis Byrne:

    Thanks, Dennis, for your honest, thoughtful, in-depth response. I respect your line of reasoning. Since I share your religious roots, it would be easy for me to assent to it. But my mind resists for many reasons. First of all, even most pro-lifers would concede that there are exceptions to outlawing abortion, namely rape, incest, and the risk to the life of the mother. Such being the case, this seems to undermine the argument that the embryo or fetus has an inviolable right to life.

    Secondly, until a Solomon comes on the scene to pinpoint the precise moment of human life, the Supreme Court must remain the court of last resort on the issue---whatever laws are passed.

    Thirdly, your point about the democratic process is well-taken. We are a country of the people, by the people, and for the people. The plebiscite will always be the ultimate arbiter of every democratic policy.

    Fourthly, the credibility of the pro-life movement has been irrevocably damaged by its failure to oppose other forms of anti-life (war, poverty, lack of health care) with the same vigor and zeal that it opposes abortion.

    Lastly, as a ancillary observation, many conservatives who are also pro-life routinely accept the logic of extending the 14th Amendment's personhood to corporations. To distort "personhood" in such a mercenary, materialistic way is another reason to question whether these same conservatives have the bona fides to decide for the rest of us when human life actually begins.

    BTW, I'll do the research you suggest.

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