A recently published article by Professor Stephen Gilles does an excellent job of revealing the Supreme Court’s failure to articulate a clear meaning for Roe v. Wade’s life-or-health exception: Roe’s Life-Or-Health Exception: Self-Defense or Relative-Safety?, 85 Notre Dame Law Review 525 (Feb. 2010). As many of you know, Roe allows states to prohibit abortions of viable fetuses except those necessary “for the preservation of the life or health of the mother.” But as Gilles exhaustively reveals, neither Roe nor its progeny explains the meaning of this exception. It could be based on the principle of either self-defense (“continued pregnancy would put the mother in grave danger of death or serious injury”) or relative safety (“continued pregnancy would pose greater risks to her life or health than an abortion”). Which meaning applies has significant practical impact in two areas: ( 1) the circumstances under which post-viability abortions are legally available; and (2) the abortion methods permissible for such abortions.
Professor Gilles traces the Court’s tortuous path on this issue through a number of Supreme Court decisions. The Court’s vacillations and obfuscations are disturbing. Gilles convincingly defends his conclusion that the Court has utterly failed in its responsibility plainly to articulate the governing legal standard.
As valuable as the article is as an account of the Court’s failings, it also more broadly stimulated my thinking about the life-or-health exception. Assume that ardent pro-lifers get their wish—the Court firmly adopts the more abortion-restricting self-defense rationale. How much protection to fetal life is actually provided? There are reasons for considerable skepticism. For one thing, experience prior to Roe indicates that the concept of “threat to the woman’s life” was broadly interpreted. Moreover, the exception is essentially self-executing by the woman and her abortionist, without meaningful oversight by others. In the normal criminal law scenario, this isn’t the case. The self-defense concept is initially self-executing, in that a person kills, say, an attacker, without seeking prior approval from some tribunal. But eventually someone evaluates whether the circumstances properly triggered t he self-defense justification. Juries do so if the matter makes it that far. For cases that never make it to trial, some prosecutor presumably determined that the facts warranted killing in self-defense. In the abortion setting, there normally would be no outside evaluator. An abortionist can simply perform the abortion under the auspices of the life-or-health exception. Who is to say differently? For example, I’m not aware that any states have reporting requirements that might potentially subject such a decision to scrutiny. In addition, the protracted litigation in Kansas a few years ago shows what’s in store for a state official who takes the unusual step of using the judicial process to obtain needed information. Thus, one can argue that even a restrictive self-defense interpretation of the life-or-health exception provides no meaningful limitation on late abortions.
The off-shoot of these reflections is a sobering thought: as important as the law is, it is foolish to rely upon it as the principal defense of preborn lives. We kid ourselves if we think that working for a pro-life legal regime is all that’s required of us as pro-lifers.