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Judicial Activism

Judicial activism occurs when judges write subjective policy preferences into the law rather than apply the law impartially according to its original meaning. As such, activism does not mean the mere act of striking down a law.

Doe v. Bolton

Summary

Doe v. Bolton is the companion case for Roe v. Wade, the landmark Supreme Court case that established a “substantive due process” right to abortion.  In Roe, Justice Harry Blackmun instructed that Roe and Doe “are to be read together.”  In this 7-2 opinion by Justice Blackmun, the Court elaborated on the “health exception” established in Roe.  In cases where an abortion is necessary in order to preserve the life or health of the mother, the state must permit an abortion even after viability.  According to Justice Blackmun, the doctor’s medical judgment as to the health of the mother may be “exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient.”

Analysis

This case is activist because the Supreme Court relies on notions of living constitutionalism, invoking the doctrine of “substantive due process” to expand on a Court-created “right” that is nowhere to be found in the text of the Constitution.  This doctrine, which established the abortion right in Roe v. Wade, is the prime example of judges reading broad constitutional terms divorced from any textual or originalist moorings, thereby making them empty vessels into which they can pour any policy preferences they desire. 

The “health exception” established in Doe essentially serves as a loophole created to bypass the post-viability restriction in Roe.  This can be seen in Justice Blackmun’s inclusion of “emotional” and “psychological” well-being as factors to be considered by the doctor.  This “mental health” exception swallows the rule by opening the door to allow broadly subjective evaluations and exceptions based on relatively mild levels of mental distress to justify an abortion as “necessary in order to preserve the life or health of the mother.”

While Roe contains a feint of moderation in its claim that there is not an absolute right to an abortion, Doe completes the masterpiece of activism by offering an exception to the post-viability restriction which has applicability to virtually every unwanted pregnancy.

Case Basics

date01/22/1973

Court & Reporter NumberSupreme Court, 410 U.S. 179

Type(s) of Activism
  • Living Constitutionalism
Area(s) of law
  • Privacy Rights
  • Due Process
Opinion(s)
Majority
  • Harry A. Blackmun
  • William J. Brennan
  • Warren Earl Burger
  • William Orville Douglas
  • Thurgood Marshall
  • Lewis Franklin Powell, Jr.
  • Potter Stewart
Concurrence
  • Warren Earl Burger
  • William Orville Douglas
Dissent
  • William H. Rehnquist
  • Byron R. White