Roe v. Wade is Not One Size Fits All: More Reflections on Burton v. Florida


Yesterday, I wrote a post on my own blog examining the decision handed down in the Samantha Burton case (PDF), and discussing why a win for Ms. Burton might not necessarily be a win for the rest of us, particularly birthing women.

The case was heavy on my mind when I went to bed, and—it may be admitting too much to say this—but I dreamed about the law and court decisions. Is there a Courtwatchers Anonymous? A support group for nerds?

My mind puzzled over what the heck is wrong with the courts that they can’t seem to understand birthing women. Then, it came to me all rays of light and Mormon Tabernacle Choir: the problem is the articulation of the state interest. 

From the “little guy” side, when you’re saying that your fundamental rights have been violated, the articulation of the right you’re asserting is a real doozy. Sometimes, no matter how hard you try to properly frame the right, the court will bungle it up. So we hold our breath when we get to “the issue presented is…” For example, admittedly without having read the briefs, I doubt that the respondents in Bowers v. Hardwick asserted in so many words a “fundamental right to engage in homosexual sodomy.” (You can almost hear Justice White sneering as he writes it.) But there seems to be no similar exhortation that similar care be taken in the assertion of a state interest. Broad strokes here: public safety, national security, protection of potential life…

So here is Ms. Burton, in danger of possible miscarriage, doctors insisting that the baby will die if she doesn’t comply with their orders. Setting aside the lower court’s foul ball of using the “best interest of the child” standard (ouch!), is it any surprise that the appellate court, its eyes occluded and stinging from nearly 40 years of swimming in abortion politics, grabs for a standard and pulls up Roe v. Wade ?

The court in Burton sets up the following analysis:

  1. A person has a right to refuse medical treatment unless there is a compelling state interest that outweighs that right.
  2. Is the fetus viable?
  3. If so, the state interest in protecting potential life is compelling. [This part comes from Roe]
  4. Let the weighing commence!
  5. (The intrusion has to be “narrowly tailored in the least intrusive manner possible to safeguard the rights of the individual.”)

But is the issue really the protection of potential life? I think that’s an appropriate articulation as applied to Roe and it’s progeny, where the case involves the unquestionable, 100% certain, termination of potential human life. But is that really what is at stake with Ms. Burton’s bedrest or any forced medical testing/treatment on pregnant women? Is the only lens through which pregnant women can be examined that of not wanting to be pregnant and trying to “kill their babies”? When the idea that women’s health is code for abortion runs deep, I guess you get to “air quote” women’s health and picture pregnant women as caricatures either engrossed in a “get-me-some-pickles, I-hate-you-you-did-this-to-me” sitcom buffoonery or “bad women” who—maybe even just deep in their black hearts—don’t want to be pregnant and don’t care what happens to their baby.

Indeed, once you break out of the abortion blinders, what you have is the state’s interest in reducing perceived risk to a fetus by some ultimately unknowable increment. No matter how adamant doctors may be, medicine is imprecise: sometimes that baby thought to be in “grave danger of death” comes out just fine, sometimes a placenta completely covering the cervical opening miraculously shifts. Sometimes, unfortunately, the baby dies even when you lock its mother up and cut her open.

As those of us who have been pregnant or loved a pregnant woman know, even in the best case, pregnancy is a roll of the dice. I am sure that most women would give nearly anything to be able to weight the dice; for the state to presume that it, and not the woman carrying the baby, is the one protecting potential life is an insult.

Ultimately, the issue presented is (gasp): How much liberty and bodily integrity should the state be able to require a pregnant woman to surrender to guarantee a perfect birth, something she couldn’t guarantee even if she desperately desired it.

My answer: None. 

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