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The Anniversary of Roe: A Time of Turning Print E-mail
By Hadley Arkes   
Tuesday, 17 January 2012

Another January, another anniversary for Roe v.Wade, this one the thirty-ninth. The March for Life, soon assembling, usually brings a surge of hope and affirmation. And now, as people prepare to travel to Washington, they may be buoyed by a week of rejoicing in the pro-life movement.  

For just a week ago, on January 10, in a striking opinion, a federal appellate court in Texas upheld a new law in that state, deepening the mandate for “informed consent” on abortion. The decision in Texas Medical Providers [of Abortion] v. Lakey was written by the redoubtable Judge Edith Jones, and it acquires its resonance because of the craft of Judge Jones. If the political class could rise to the moment, this case could bring us to the beginning of the Endgame on abortion.

    One of the paradoxes here is that the legislation in this case marks the decent work done even by the conservative judges that some of us have reviled. And for that, we need to go back twenty years to the case that broke hearts and threatened to destroy the morale of the pro-life movement. 

In Planned Parenthood v. Casey (1992) there had been reason to hope that a Court containing five Reagan and Bush appointees, along with the two original dissenters in Roe, would bring forth five votes to overrule Roe v. Wade. Instead, a plurality formed by Justices O’Connor, Kennedy, and Souter insisted on affirming what they took to be the essential core of that right to abortion: the right of a woman not be burdened in an “undue” way, or blocked, from ordering an abortion for any reason she thought sufficient, at least to the point of “viability” in the pregnancy.   

On the day the decision came down, the anger flared and the recriminations were intense. And yet, what was often overlooked in the wreckage was that the Court, in Casey, had upheld the main lines of the statute in Pennsylvania that was being challenged in that case. The Court upheld a requirement of “informed consent,” in which the woman contemplating an abortion would be told about the condition of the child she was carrying, along with a waiting period of twenty-four hours.  

The statute in Texas built upon that ground and made the requirement a bit more exacting. The doctor who was to perform the abortion was required to do and display a sonogram of the fetus. He was also required to make audible what could be heard of the heartbeat of the fetus, and explain the results to the patient.  

Of course, it is quite consistent with the right of a woman to order an abortion that her decision be “informed” – that she knows what she is doing. Still, the courts may strike down some of these procedures if they appear too coercive. 


       Judge Edith Jones (in Iraq, 2010)

The legislators in Texas dealt with that problem by allowing a woman to refuse to see the sonogram or listen to the heartbeat. But the doctor still had to give her the material, and a woman had to certify, explicitly, that she had made the decision not to see and hear.

The “providers” of abortion argued that their First Amendment rights were being violated: Doctors would be forced to speak in providing this information. But by this reasoning, it would be a violation of the First Amendment to compel cigarette companies to carry warning labels on their products or companies to issue balance sheets to their investors. 

The Court in Casey had long ago rejected this argument on coerced speech. Judge Jones drew deftly on that opinion joined by Justice Kennedy, and even more tellingly, she drew on his opinion in Gonzales v. Planned Parenthood (2007) when Kennedy wrote for the Court in sustaining the federal bill on partial-birth abortion.  “It seems unexceptionable,” said Kennedy, “to conclude that some women come to regret their choice to abort the infant life they once created and sustained.”

Justice Kennedy was, of course, one of the lead defectors from the conservative bloc who helped to sustain Roe v. Wade lo these twenty more years. In citing so notably from Justice Kennedy in Casey and Gonzales, Judge Jones built on the saving remnant in the Casey case – and more.

For she set in place the ground making it virtually certain that this decision of hers will be sustained by a Court in which Kennedy comes along with Roberts and Alito, as well as Scalia and Thomas. That configuration, taking hold in the Gonzales case, could give confidence to legislators in Texas and other places that legislation of this kind would be upheld.  

This decision in Texas also comes at a time when the conviction is welling up among Republicans in Congress that the Congress could use its powers under the Fourteenth Amendment to protect those “persons” in the womb. This simple move, on informed consent, could be a prelude to measures more direct and decisive to bar the abortions themselves.

Congress could mandate informed consent in all facilities under federal control, as in military hospitals. But it could also act to remove all federal funds from any private hospital or clinic that does not work under these rules.  
That move is bound to set off crippling tensions within the party of abortion in Congress.  They are the tensions that could make that party come apart, and bring us to the beginning of the End.


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is
 Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

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