On Actually Reading Roe


June 23, 1992|By JACK FRUCHTMAN Jr.

Justice Harry Blackmun: ''Have you read Roe?''

Ernest D. Preate Jr., Attorney General of Pennsylvania: ''Yes, I have.''

(Exchange before the Supreme Court.)

Any day now, the Supreme Court will decide whether the Pennsylvania law restricting a woman's right to abortion is sufficient to overturn Roe v. Wade, the 1973 decision granting a woman the right to an abortion in the first trimester of her pregnancy. Justice Blackmun's inquiry to Attorney General Preate does not beg the question. Many people cite Roe, and everyone seems to have an opinion about it. Few people have actually read it.

It is a curious judicial opinion. Because it is fraught with medical language and information as well as mathematical formulations about the development of a fetus, parts of it read more like an article in a medical journal than a judicial opinion.

It is of course conventional for judges to consider issues other than pure constitutional theory and law as they deliberate a case. Indeed, since 1908, the pattern of submitting sociological and economic data, initiated by Louis D. Brandeis, then an attorney, became the pattern after the case of Muller v. Oregon which sought to sustain the number of hours women could work in laundries.

But the medical material? Does this belong in a Supreme Court opinion?

Justice Blackmun addressed, for example, the issue of ''quickening,'' and what it might mean for a fetus: whether first movement means life, human life or the reaction to simple stimuli. He gave no judicially appropriate answer. He noted that some anti-abortion laws allowed pregnancy termination when the life or health of the mother was endangered, but he offered no examples of when that might be. (Physicians may be able to decide, but a judge?)

He whimsically divided pregnancy into three equal parts -- trimesters -- as if this seemed to be the most logical way to partition 39 weeks (evenly divisible by three). Surely the development of an embryo into a fetus and then into a human being takes approximately nine months of human gestation. But the court's division of a pregnancy into three parts gives the opinion a strong aura of medical certitude.

Justice Blackmun wrote: ''The compelling' point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is because of the now-established medical fact that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth.'' ''Medical knowledge?'' ''Medical fact?'' All this asserted not by a medically trained person but by a judge, a man trained in the legal profession. Odd.

At least, Justice Blackmun had the good sense to eschew saying that medical science had decided when human life begins. In a famous statement, he stated that ''we need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.''

Perhaps he should have stopped there and said that a medical tract, drafted by a lawyer, is also pure speculation.

Jack Fruchtman Jr., who is pro-choice but unremittingly baffled by the Roe decision, teaches politics at Towson State University.

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