Most Americans know at least a little bit about Roe v. Wade, the 1973 U.S. Supreme Court ruling that forced states to legalize abortion on demand.
But fewer know about its companion case, Doe v. Bolton, which also contributed to the destruction of more than 63 million unborn babies’ lives.
National Review legal expert Ed Whelan described the Doe case in a column this week, explaining how a leaked draft opinion from the Supreme Court addresses that case as well as Roe.
The Supreme Court is considering overturning Roe through the Mississippi case Dobbs v. Jackson Women’s Health. The justices have not ruled yet, but, last week, someone leaked a draft ruling that shows the court rejecting Roe and allowing states to protect unborn babies from abortion again. The draft ruling also addressed the Doe case, although briefly.
A key problem with Doe is its treatment of health exceptions for abortion. Basically, the ruling, written by Justice Harry Blackmun, is interpreted to give the abortionist “unlimited discretion to do an abortion at any time even after viability and all the way to childbirth” for any loosely-defined “health” reason, Whelan wrote.
In the Doe ruling, Blackmun said abortionists should be allowed to consider “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient” when determining if the abortion is for the “health” of the mother.
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This same reasoning is how some states claim to limit the killing of unborn babies in abortions after viability but really allow abortions for basically any reason up to birth. It is important to note that the pro-life movement supports exceptions if the mother’s life is at risk. What the movement rejects is broadly-defined “health” exceptions that allow unborn babies to be aborted for basically any reason.
In the justices’ leaked draft ruling last week, Whelan said the majority reject the notion that there is “a broad right to obtain an abortion at any stage of pregnancy provided that a physician is willing to certify that it is needed due to a woman’s ’emotional’ needs or ‘familial’ concerns.”
The draft opinion’s statement of the various “legitimate state interests” that a law regulating abortion might serve does not suggest that any such law must include the unlimited definition of health that Doe articulated. Even more to the point: The Mississippi law has an exception for “medical emergency” that is expansive but nowhere near as broad as Doe’s definition of health, and the draft’s conclusion that the Mississippi law satisfies rational-basis review makes no mention of Doe’s definition. It’s thus clear that, like a thorn on an uprooted weed, Doe’s definition of health has no existence apart from Roe.
The draft is not final, judges can change their minds, and it is not clear when the high court will issue its final ruling on Dobbs v. Jackson Women’s Health, but many believe the court will overturn Roe and allow states to protect unborn babies again.
Polls consistently show that most Americans support stronger legal protections for unborn babies than what Roe allows. LifeNews highlighted 11 recent polls here. A new Rasmussen poll shows more Americans want Roe v. Wade overturned (48 percent) than want the ruling to remain in place (45 percent).
Since 1973, more than 63 million unborn babies and hundreds of mothers have died in supposedly “safe, legal” abortions.
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