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Pleading "the established medical fact" that "until the end of the first trimester, mortality in abortion [of course the reference is to maternal mortality—fetal mortality is 100 percent] is less than that in normal childbirth [nine maternal deaths per 100,000 abortions vs. twenty-five per 100,000 live births, a differential of 0.016 percent, of course not counting the 100,000 fetal mortalities]" (ibid., X), the Court decreed that a state may not regulate abortion at all during the first three months, and during the second, only to protect the health of the mother. After "viability," defined as "about six months," when the fetus "presumably has the capability of meaningful life outside the mother's womb," then, "if the State is interested in protecting fetal life … it may go so far [emphasis added: since abortion is 100 percent fatal to the fetus, it is hard to see the value of "protection" that goes less far] as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother" (ibid.). Since health is explicitly defined to include "mental health," a very flexible concept, this concession to the protection of the fetus from seven to nine months will, in practice, mean little.

The Court based its abortion decision on the right of privacy, and that without empirical or logical justification. "This right of privacy … is broad enough .to encompass a woman's decision whether or not to terminate her pregnancy," Justice Blackmun wrote in delivering the opinion of the Court. But the right of privacy is not absolute, and, much more important, no abortion decision can ever be by any stretch of the imagination a purely private matter. The fetus, if not a full-fledged human being, is at least a being owing his existence as much to father as to mother, and is therefore an individual distinct from both. Curiously, fathers are scarcely mentioned in the fifty-one-page majority opinion! The decision would appear to contradict itself when it insists that the "private" abortion decision must be made in conjunction with a physician and/or in line with some kind of medical judgment.

In his concurring opinion, Chief Justice Burger fatuously comments, "I do not read the Court's holding today as having the sweeping consequences attributed to it by the dissenting justices [White and Rehnquist]." The New York state tally stood in 1971 at a ratio of 927 abortions for 1,000 live births; now that abortion has become allowable nationwide, the ratio will presumably change, but the experience of nations with easy abortion suggests that it may very well remain as high as one abortion for every two live births, or even higher. What would the Chief Justice consider sweeping? Mandatory abortion for all those falling into a certain class? Infanticide? Mass extermination of undesirables? Make no mistake: the logic of the high court could be used with like—in some cases with greater—force to justify infanticide for unwanted or undesirable infants; the expression, "capability of meaningful life" could cover a multitude of evils and will, unless this development is stopped now.

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January (Web-only) 2003, Vol. 47