Revisiting Roe: The Language of Privacy and Isolation in U.S. and Vermont Case Law
Revisiting Roe: The Language of Privacy and Isolation in U.S. and Vermont Case Law
Emily Blistein, Esq. 34-SPG Vt. B.J. 42 (2008)
“The pregnant woman cannot be isolated in her privacy,” Justice Blackmun wrote in the landmark decision of Roe v. Wade, the U.S. Supreme Court case that legalized a woman’s right to choose abortion. While this is by no means Roe’s most recognizable quotation, it has proven increasingly ominous for those trying to prevent the erosion of women’s privacy rights. Indeed, as the courts, legislatures, and advocates on both sides have engaged in continual framing and reframing of the abortion debate, a pregnant women’s right to be at all “isolated” in her decision has become increasingly less assured. “Cannot” is slowly and disturbingly becoming “will not.”
January 22, 2008, marked the thirty-fifth anniversary of the Roe decision and many have taken the opportunity to reflect on the abortion debate. One thing is clear: we disagree-in courtrooms and legislatures, in classrooms and around kitchen tables. We disagree. These disagreements, as Blackmun noted at the beginning of Roe, arise from “one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, [and] one’s attitudes toward life and family.”
One might assume that acknowledgement of these differences would move the courts and legislatures to afford the person most intimately involved more privacy when making these personal and private decisions. Instead, individual judges and legislators have moved in the other direction-codifying and enshrining their own morals, religious beliefs, and experiences. So strong it seems is their desire to define a woman’s experience that-as their voices have become louder and more controlling-the doctor’s offices and kitchen tables where women have sought refuge to make private decisions have grown increasingly less isolated from their reach.
As the Court has shifted and reframed its logic in the last thirty-five years, a telling trend has emerged: the more willing justices are to invade and describe a pregnant woman’s private experience, the more likely they are to restrict access to abortion. The language that courts-in particular the U.S. Supreme Court-use to describe women’s private plights has invariably become the measure of how much these judges will substitute their own decision-making power for ours.