Gallup poll: 64% of Americans agree that "The decision to have an abortion should be made solely by a woman and her physician."

In the summer of 1972, half a year before the Supreme Court decided Roe v. Wade.

A majority of all identified groups, including Catholics, agreed with that statement. There was almost no difference between men and women. The group expressing the strongest agreement – 68 percent – was made up of Republicans. George Gallup’s syndicated column discussing the poll results, “Abortion Seen Up to Woman, Doctor,” ... was... in Justice Blackmun’s files.

And Justice Blackmun, the Nixon appointee who wrote the Roe v. Wade opinion, had that column in his files. Also in his files:

[A]n account by Dr. Jane E. Hodgson, a Mayo Clinic-trained obstetrician/gynecologist, of her arrest in St. Paul in 1970 for performing a first-trimester abortion for a patient who had contracted German measles in the fourth week of pregnancy. (In those days before immunization eradicated the threat posed to pregnant women by German measles, the disease commonly caused serious birth defects.) Justice Harry A. Blackmun, formerly the Mayo Clinic’s lawyer, knew Dr. Hodgson’s story; I had found her account, published in the clinic’s alumni magazine, in the justice’s files at the Library of Congress.

That's from a long column by Linda Greenhouse, referencing historical materials collected here. The column also talks about the post-Roe political strategy of the Republican Party, which we were just discussing a couple days ago here. The idea is that Republicans were for it before they were against it.

(Feel free to relate this post to the previous post about Second Amendment rights, which Democrats don't believe in.)

40 years ago today, the Supreme Court issued its opinion in Roe v. Wade.

Justice Blackmun wrote:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however... the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment.... or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.... These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty"...  are included in this guarantee of personal privacy....

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Was the state's interest in protecting the unborn child sufficient to permit some regulation? The answer was yes, but not before the "viability" of the unborn. As to whether the killing of that pre-viable entity ought to be seen as the killing of a human being, justifying rescue by the state, the Court refused "to endorse any theory that life, as we recognize it, begins before live birth," since "those trained in... medicine, philosophy, and theology are unable to arrive at any consensus."

Pre-viability, the decision whether to continue with a pregnancy would rest with the woman within whose body the mysterious process was taking place, and it would not be the role of the state to make that decision for her, no matter how firmly the majority of the people believe they have solved the mystery and they know that what she is doing is murdering a child.

"State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.'"

That quote has long been on my list of best quotes about federalism in the history of the Supreme Court, so I was pleased to see it quoted in a Supreme Court case that came out today, Bond v. United States. It's a quote within a quote, and now it's a quote within a quote within a quote.

One thing I like about it, aside from the sound principle — that the constitutional structures of government were devised to protect the people — is that Justice O'Connor, in New York v. United States, was quoting a Justice Blackmun opinion that was a dissent from an opinion she wrote one year earlier. In that earlier case, Coleman v. Thompson, Blackmun had chided her for relying on federalism as if it existed for the sake of the states rather than for the people. It seemed as though Justice O'Connor felt a need to get on the right side of that principle.

In today's case, Bond, the Blackmun/O'Connor idea about federalism was used to explain why a criminal defendant had standing to challenge the constitutionality of the federal crime she was charged with (the Chemical Weapons Convention Implementation Act of 1998). (Carol Anne Bond had put caustic chemicals on a doorknob, door handle, and mailbox likely to be touched by a woman who had gotten pregnant via Bond's husband.)

Bond made a federalism-based constitutional challenge, and the Court of Appeals said that she lacked standing because she wasn't asserting her own legal rights or interests — as required by standing doctrine. In this view, only the states have standing to raise the issue that Congress has exceeded its enumerated powers and made a crime in an area that is reserved to the states under the 10th Amendment.

Intuitively, you should sense that the Court of Appeals was wrong. Here's this woman, charged with a crime that is — if she's right about the scope of Congress's power — a nullity. She's supposed to endure conviction and punishment on the theory that only the state is allowed to say that Congress overstepped its power? That's crazy.

Do you see how eloquently the old Blackmun/O'Connor quote explained why it's crazy?

Because the limitations of federalism exist to protect citizens from the excesses of power, when Bond argues that there is a federalism limit on congressional power, she is asserting her own legal interests.