So often we hear about the all impacting decision of Roe versus Wade, but hardly ever, in fact never do we hear about the other pivotal Supreme Court decision that was made on the same day: Doe versus Bolton. J.P. Moreland and Scott B. Rae in their book “Body and Soul: Human Nature And the Crisis in Ethics” alert us to this other all-important decision, let’s hear what they have to say:
Since 1973, with the Roe v. Wade Supreme Court decision, abortion has been legal throughout the entire nine months of pregnancy. The court in Roe arbitrarily divided up the nine months of pregnancy into trimesters with increasing protections for the unborn in the last trimester. In the first trimester, abortion on demand is legal. In the second trimester, the state can place restrictions on access to abortion in order to safeguard the health of the pregnant woman. These include restricting the availability of abortion to licensed medical facilities and requiring them to be performed by licensed physicians. It is widely perceived in the culture at large that abortion is only legal up until the point of viability or, at the time of the Roe decision, roughly at the end of the second trimester. What is not widely known, however, is that on the same day that the Supreme Court handed down the Roe decision, it also handed down another abortion decision, Doe v. Bolton, which expanded the availability of abortion beyond what Roe by itself provides. The Doe decision expanded the exception clause in Roe that allowed for post-viability, or third trimester, abortions in cases in which the life or health of the mother was in jeopardy. The Doe decision expanded the notion of the health of the mother in a way that could be interpreted to justify abortion for virtually any reason. The court interpreted the health of the mother to include more than simply her physical health. It also included her physiological and emotional health, and it could be construed to include her financial health as well. The Court put it this way:
That statute [the Georgia law in question] has been construed to bear upon the physiological as well as physical well-being [of the mother]…. We agree that the medical judgment [of the mother’s physician, as to whether continuing the pregnancy constitutes a threat to the mother’s health] may be exercised in light of all factors—physical, emotional, psychological, familial and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health [of the pregnant woman].
Thus if in the judgment of the mother’s physician any of these factors, which include much more than simply medical indications, are present, a post-viability abortion would be legal. Not only are the factors broaden well beyond medical indications—aspects of a woman’s health that her physician is not trained to assess—but also the judgment is the physician’s alone. The physician can authorize a post-viability abortion for virtually any reason, ranging from a threat to the life of the mother (which rarely occurs today) to a range of nonmedical reasons that could include the mother’s financial ability to raise the child in question (familial factors, as cited by the Court). The well-publicized late-term, partial birth abortion method is often used in these third trimester abortions, and though it is widely claimed that these are only performed when a woman’s life or health is at risk, it is well documented that the majority of partial-birth abortions are performed for birth control reasons and are not based on the risks of continuing the pregnancy to the mother. The combination of the Roe and Doe decisions opened the door to abortion on demand at virtually any point in pregnancy. (J.P. Moreland and Scott B. Rae, “Body & Soul: Human Nature & the Crisis in Ethics,” 237-38 )
So while Roe v. Wade opened the door for the legality of abortion, it does not stand on its own, as the Doe v. Bolton decision illustrates. In other words, Doe gives feet to Roe. Interestingly, the Doe decision, I believe, reflects the real reason and motivation for the legalization of abortion on demand—it comes from a framework of systemic evil at work in our culture and world at large. Clearly abortions in America are not primarily performed for medical intervention (and even then I find it unethical), rather they are performed to meet the needs of a consumerist sexualized culture—and Doe indeed provides the juridical framework for that to happen.
Anyway, I thought I would just highlight this, since this decision is not typically mentioned relative to discussion surrounding abortion. What really prompted me to think about this was the “Saddleback/Rick Warren” interview of Obama, and his brilliant response to the question of when life begins (i.e. “that’s beyond my pay grade”). But not to digress, I think the real solution here is to engage in the kingdom work of Christ; to forward the in-breaking shalom of the Gospel. If the world is going to be turned upside down, apocalyptically, then we Christians need to live apocalyptic lives. We need to preach the gospel with our lips and our actions, so that the crooked can be made straight; and the poor made rich by the superabundant grace and bounty of Jesus Christ. It is only when the values of this world become shaped by the values of heaven that I believe any Supreme Court decisions will be overturned.
To be quite frank, I don’t place a lot of hope in either Obama or McCain in providing measures that will create a societal context in which a “kingdom ethic” will flourish. Thankfully Jesus didn’t leave us as orphans …