You’re pro-life/pro-choice, but you’ve never read Roe v. Wade? Really?

Posted on 06-13-2016 by
Tags: abortion , Roe v. Wade , LIT , Supreme Court , SCOTUS


Roe v. Wade … I never read it, not even in law school.

But when you read it, you’re in for a shock.

Roe v. Wade, as law professor Noah Feldman notes, isn’t just about abortion rights. It’s also about a doctor’s right to perform abortions.

Rights of a Doctor

Feldman recently wrote about the substance of Roe v. Wade. He begins with this surprising question: Does the abortion right belong to a woman or to her doctor? That question, he says,

has been an important one ever since Roe v. Wade, a decision that actually emphasizes the rights of a physician.*

This sounded like a bunch of nonsense to me. Roe’s framework is and always has been about a woman’s right … right?  Not according to Feldman, who goes on to say:

To a remarkable degree, the opinion is about doctors. … [A] final lesson from rereading the Roe decision is that when it comes to abortion, the physician’s rights matter, too.

Non-Readers: You’re Pretending to be Fully Informed

Roe, as Feldman notes, is known by all but read by few. He says you shouldn’t feel bad if you haven’t read it.** But he makes his Con Law students read it so, it would seem, “feeling bad” doesn’t lessen the importance of Roe as legal reading.

On a more fundamental, but no less important, level: reading Roe should be a prerequisite to discussing it – laymen included. Likewise, failing to read Roe should exclude you, me and everyone else from the debate.

Of course, some are gonna balk at this.

“I don’t have to read it to discuss it,” they’ll say.  

But that’s apathy talking.

Nobody’s asking you to read all 7,473 volumes/ +5 million pages of Wikipedia. Nobody’s asking you to understand all the legalese. Nobody’s asking you to agree or disagree with the opinion.

The bar’s been set low. From the beginning of Justice Blackmun’s opinion to Justice Stewart ‘s concurrence, you only have to read about 17 pages.

42 Minutes, 40 Seconds Later

I finally read Roe v. Wade, timing myself for the sake of argument. 42 minutes, 40 seconds … so even if you’re a slow reader (like me), you can read it over lunch.

My first read-through missed Roe’s doctor-centric language. It took a second pass to find it. Here’s what the Court said regarding a doctor’s right to perform abortions:

[F]or the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. [emphasis added]


And then, in summarizing, the Court said:

For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

….

Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. ***

Hmmm … never knew that.

Failure to Read = Our Great Legal Failure

Roe – specifically, not reading Roe - underscores the disconnect between what is always put into print but what is usually never read. For failing to read, we have ourselves to blame … in part.

The print part shares blame because Supreme Court opinions are designed to deter reading. Granted, the bar for reading Roe has been set low, but even low bars can present a difficult hurdle. Roe – like all Supreme Court opinions - reads like (and looks like) a prescription drug fact sheet. Supreme Court opinions are the antithesis of Don Norman’s edict in The Design of Everyday Things:

Great designers produce pleasurable experiences.

Pleasure … reading a Supreme Court opinion? This is a contradiction.

Assuming there’s a duty to read what the Supreme Court writes, there’s an equal duty to make that writing at least readable, at most pleasurable. It’s a subset of what Margaret Hagen envisions as a better legal experience. Hagen says:

There’s this glaring absence of user experience in law. Whether it’s the layperson or the seasoned lawyer, so many people are miserable in law and no one is thinking about the actual experience or the human part of it.

This “glaring absence” – this misery – is part of the reason why Supreme Court opinions go unread.  

It’s part of the reason why judicial attacks come mostly from the judicially uninformed.

Along with our own apathy, it’s why most of us will never read Roe or Miranda or Baker or Gideon or Brown or ….

 

*Roe suffers from sexism in underscoring the right of a doctor to treat “his” female patient. Professor Feldman acknowledges this. He says:

There is something paternalistic and even subordinating about the notion that an implicitly male physician guides and perhaps controls a woman’s body.

**Feldman implies that reading Roe is less important today because Roe was “essentially superseded” by Planned Parenthood v. Casey, 505 U.S. 833 (U.S. 1992).

***In his argument before the Supreme Court, Robert Flowers, co-counsel for the respondents, questioned the physician’s/mother’s decision-making power. He asked the Court:

Where is the counsel for these unborn children, whose life is being taken? Where is the safeguard of the right to trial by jury? Are we to place this power in the hands of a mother, in a doctor?