What did Doe v. Bolton Accomplish?

Under Roe v. Wade, must states allow third-trimester abortions for virtually any reason under the rubric of "health"? Did the Supreme Court eviscerate its own trimester distinction by saying in Doe v. Bolton that "health" automatically encompasses "all factors — physical, emotional, psychological, familial and the woman's age — relevant to the well-being of the patient"?

So you would think from reading any number of countless sources. I've never seen any writings that explicitly disagree with this assessment. But I think it's probably wrong.

Ohio passed a law in the late 1990s that limited partial-birth abortion, but made exceptions for the woman's life or when the lack of abortion would create "serious risk of the substantial and irreversible impairment of a major bodily function." In Voinovich v. Women's Professional Medical Corp., the Sixth Circuit noted that "this definition appears to be limited to physical health risks, as opposed to mental health risks." The court then criticized the Ohio law for failing to abide by the definition of "health" provided in Doe v. Bolton (i.e., "[M]edical judgment may be exercised in the light of all factors--physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient. All these factors may relate to health.")

In dissenting from the denial of certiorari in that case, 520 U.S. 1036, 1039 (1998), Justice Thomas (joined by C.J. Rehnquist and J. Scalia) pointed out that Doe v. Bolton did NOT actually require such a definition of "health":

The panel majority similarly wrenched this Court's prior statements out of context in finding the statute's lack of a mental health exception constitutionally infirm. The panel majority stated that the question of whether a maternal health exception may constitutionally be limited to physical health depends upon what we meant in Casey by abortions "'necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'" 130 F.3d at 208 . . . To answer this question, however, the panel relied on our conclusion in Doe v. Bolton, 410 U.S. 179 (1973), that an exception in Georgia's abortion statute for abortions performed when a physician determined, "based upon his best clinical judgment[,] [that] an abortion [was] necessary," . . . was not unconstitutionally vague because the phrase had been construed to allow physicians to consider "'all factors--physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient.'" . . . Our conclusion that the statutory phrase at issue in Doe was not vague because it included emotional and psychological considerations in no way supports the proposition that, after viability, a mental health exception is required as a matter of federal constitutional law. Doe simply did not address that question. As with its void-for-vagueness holding, the panel majority's quarrel with the wishes of the Ohio Legislature on this score appears to be grounded in abortion policy, not constitutional law.

In other words, when Doe v. Bolton described the word "health" as including "emotional and psychological factors," it was merely interpreting what the Georgia statute meant in that case, NOT issuing an actual command that the Constitution now required such an interpretation of "health."

Looking at what Doe v. Bolton actually held, I think the conservative Justices were correct. Here is the relevant passage from the opinion, with some comments from me interspersed:

C. Appellants argue that 26-1202 (a) of the Georgia statutes, as it has been left by the District Court's decision, is unconstitutionally vague. [Note that it was the pro-choice side that was challenging the statute here as "vague."] This argument centers on the proposition that, with the District Court's having struck down the statutorily specified reasons, it still remains a crime for a physician to perform an abortion except when, as 26-1202 (a) reads, it is "based upon his best clinical judgment that an abortion is necessary." The appellants contend that the word "necessary" does not warn the physician of what conduct is proscribed; that the statute is wholly without objective standards and is subject to diverse interpretation; and that doctors will choose to err on the side of caution and will be arbitrary.

The net result of the District Court's decision is that the abortion determination, so far as the physician is concerned, is made in the exercise of his professional, that is, his "best clinical," judgment in the light of all the attendant circumstances. He is not now restricted to the three situations originally specified. Instead, he may range farther afield wherever his medical judgment, properly and professionally exercised, so dictates and directs him.

[Note that the next paragraph is directed at holding that the Georgia statute was not, in fact, too vague to be enforced.]
The vagueness argument is set at rest by the decision in United States v. Vuitch, 402 U.S. 62, 71 -72 (1971), where the issue was raised with respect to a District of Columbia statute making abortions criminal "unless the same were done as necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine." [Note that the following sentence is purely about how to construe the statute.] That statute has been construed to bear upon psychological as well as physical well-being. This being so, the Court concluded that the term "health" presented no problem of vagueness. "Indeed, whether a particular operation is necessary for a patient's physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered." This conclusion is equally applicable here. Whether, in the words of the Georgia statute, "an abortion is necessary" is a professional judgment that the Georgia physician will be called upon to make routinely.

We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment 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. [In other words, under the Georgia statute at issue, medical judgment "may" include all those other factors. But nowhere did the Court say, "The Constitution requires a health exception that includes all these factors."] All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.

UPDATE: So does the current Court interpret the right to abortion as encompassing a constitutional requirement of exceptions for "mental" or "emotional" health? The question still appears to be unsettled. In the Court's latest abortion opinion -- Stenberg v. Carhart -- footnote 21 of Justice Thomas's dissent said this:

21. The majority’s conclusion that health exceptions are required whenever there is any support for use of a procedure is particularly troubling because the majority does not indicate whether an exception for physical health only is required, or whether the exception would have to account for “all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the well being of the patient.” Doe v. Bolton, 410 U.S. 179, 192 (1973).

Also note that in the 1977 case of Beal v. Doe, the Supreme Court again suggested that Doe v. Bolton's definition of "health" was a matter of statutory interpretation:

In Doe v. Bolton, 410 U.S. 179, 192 (1973), this Court indicated that "[w]hether `an abortion is necessary' is a professional judgment that . . . may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment." We were informed during oral argument that the Pennsylvania definition of medical necessity is broad enough to encompass the factors specified in Bolton.