Roe's Life-or-Health Exception: Self-Defense or Relative-Safety?
Notre Dame Law Review, Forthcoming
60 Pages Posted: 13 Dec 2009
Date Written: December 12, 2009
This Article presents the first in-depth descriptive analysis of Roe v Wade’s holding that, after viability, a state may “regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Much depends on what this ambiguous life-or-health exception means. The exception could be defined in accordance with self-defense principles, on the theory that the state’s interest in viable fetal life should yield to the woman’s right to self-preservation. On that understanding, the exception would apply only when a doctor reasonably believes that continued pregnancy would put the mother in grave danger of death or serious injury, thereby justifying the use of deadly force against the fetus. Alternatively, the life-or-health exception could stem from a judgment that the state’s interest in viable fetal life - while strong enough to require a woman to accept the ordinary burdens of becoming a mother - must yield when, in addition, continued pregnancy would pose greater risks to her life or health than an abortion. On that understanding, the exception would apply whenever, in a doctor’s good-faith judgment, the overall health risks of abortion are smaller for the mother than those of continued pregnancy and childbirth.
These competing interpretations of the life-or-health exception have very different practical implications. The self-defense approach would rarely block the application of a ban on postviability abortions, because very few pregnancies nowadays pose grave dangers of death or serious health impairment that can only be avoided by abortion. By contrast, the relative-safety approach would apply in the far more frequent situations in which pregnancy and childbirth are believed to pose marginally greater risks to the mother’s physical or mental health than a postviability abortion. The two approaches would also generate different results in the other major setting in which the postviability life-or-health exception applies: state regulation of abortion methods that seeks to maximize the chances that the viable fetus will survive an abortion and receive appropriate neonatal care. For example, under the self-defense approach, states could require that a fetus-sparing method such as prematurely inducing labor be used in all postviability abortions, unless inducing labor would pose grave danger to the mother’s life or health. Under the relative safety approach, such a requirement would be facially unconstitutional: although induced labor is very safe in most cases, it is generally accepted that the standard (and fetal-lethal) D&E method has even lower maternal risks, and hence is relatively safer.
The Supreme Court has never definitively embraced either the self-defense or relative-safety interpretation of the life-or-health exception. This Article does not address the central normative question (which approach should the Court adopt?), in the conviction that the foundation for an informed debate on that question should be a thorough and rigorous descriptive analysis of the Court’s decisions dealing with the life-or-health exception. In brief, that analysis demonstrates that the Court has vacillated between - and at times straddled - these two approaches, without ever offering anything resembling a reasoned explanation for its actions. Roe and its companion case, Doe v. Bolton, deliberately left the life-or-health exception undefined and ambiguous - thereby enabling pro-life audiences to view it through self-defense eyes and pro-choice audiences to see it with relative-safety ones. In Thornburgh v. American College of Obstetricians & Gynecologists, the Court implicitly endorsed an absolutist version of the relative-safety interpretation. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court implicitly rejected Thornburgh and introduced a new (but ambiguous) phrase - “significant health risks” - to describe the circumstances that must be covered by the health exception. In Stenberg v. Carhart, the Court reverted to the relative-safety interpretation (albeit a more moderate version than it had posited in Thornburgh). Most recently, in Gonzales v. Carhart, the Court implicitly endorsed a version of the self-defense approach—but did so in a half-hearted manner that sends only a muted signal to lower courts and legislatures.
Although this Article is primarily descriptive, it does make one normative claim: that the Supreme Court’s failure to explain the life-or-health exception’s rationale and scope is utterly irresponsible. In Casey, the joint opinion of Justices O’Connor, Souter, and Kennedy solemnly declared that “[l]iberty must not be extinguished for want of a line that is clear,” and that, unlike legislatures, courts “must justify the lines we draw.” When it comes to the life-or-health exception, the Court has neither drawn clear lines nor justified them. The liberal, pro-Roe Justices have tried to have it both ways, intimating that postviability abortions are rare, yet supporting the relative-safety approach that makes them routinely available. The conservative, anti-Roe Justices have angrily objected to the relative-safety approach, yet neglected even to articulate, much less make the case for, the obvious self-defense alternative. The one point on which they all apparently agree is that the less said about Roe’s life-or-health exception, the better.
Other than sparing the Justices the need to make an explicit, reasoned decision on an emotionally charged issue for which they will be pilloried no matter what they say, the Court’s taciturnity has nothing to recommend it. Although reliable data are unavailable, the evidence suggests that there may well be five thousand (or more) postviability abortions per year in the United States. Most of these abortions do not involve serious threats to the woman’s life or health, and hence would be unlawful under state laws that incorporated the self-defense version of the life-or-health exception. Moreover, in the subset of pregnancies that do involve a serious threat to maternal health, there is usually an abortion method that is safe for the woman and that would preserve whatever chance of survival the viable fetus has. Thus, the Supreme Court’s long-running game of hide-the-ball has created a regime in which thousands of viable fetuses are killed each year even though their deaths are not justifiable on self-defense grounds. Whether that result is ultimately right or wrong as a matter of constitutional law, surely the Court should not impose it on the nation without explanation.
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