The Viability of Roe: Part 1, What Roe Really Says

“[A] State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.  At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.”[1]

A. Roe v. Wade and Doe v. Bolton

The Supreme Court’s decisions in Roe v Wade and Doe v Bolton are frequently included on lists of the most controversial cases the Court has ever decided, and critics on both sides of the abortion debate have expressed themselves as unhappy with the reasoning employed by the Court.[2] But what the Court actually decided in these two controversial cases is often overlooked in the larger debate.

Roe and Doe were decided on the same day, and were meant to be companion cases that were read together.[3] In Roe, the Court struck down a Texas Statute prohibiting abortion except when the mother’s life was in danger, ruling that the “right to privacy” in the penumbras of the Constitution included a woman’s right to decide “whether or not to terminate her pregnancy.”[4] However, the Court went on to hold that this “right is not unqualified and must be considered against important state interests.”[5] According to the Court, there were only two state interests in regards to regulating abortion: the state’s interest in preserving the health and safety of the mother, maintaining appropriate medical standards, and protecting the “potential life” of the fetus.[6] In an attempt to balance these state interests with the newly found right to choose abortion, the Court constructed an elaborate trimester framework that dictated when the state was allowed to regulate abortion. The Court recognized that while these interests existed from the outset of pregnancy, that at some point during the pregnancy these interests became “compelling” enough to sustain regulation of abortion.[7] The Court in Roe decided that this “compelling point” for the State’s interest in preserving fetal life was at viability (which the Court placed around 26 weeks post-fertilization[8]), the point at which the fetus has the capacity for “meaningful life outside the womb.”[9] After this point, States could justify their regulation and even prohibition of abortion based on their interest in preserving fetal life.

However, both Roe and Doe also imposed rigorous health exceptions to any regulations on abortion, listing as factors to consider:

“All factors-physical, emotional, psychological, familial, and the woman’s age-relevant to the well-being of the patient…”[10]

“Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases … the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.”[11]

Under these factors, the “definition of a woman’s health is so broad that there would never be a time when a woman could not find an abortionist willing to perform an abortion.”[12]

In his dissent, Justice White called the majority decisions in Roe and Doe “an exercise of raw judicial power,” and “an improvident and extravagant exercise of the power of [judicial review].”[13] Justice White argued forcefully that there is “nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women.”[14]

B. Myths about Roe v Wade

1. Abortion is a fundamental right

Many abortion supporters, including elected officials and leaders of pro-abortion organizations, will tell you that the Supreme Court declared abortion a fundamental right in Roe v Wade. But this simply isn’t true. In fact, no majority opinion by the Supreme Court has ever declared abortion a fundamental right.

In constitutional law, there are three levels of judicial scrutiny the Court will use when deciding cases, these levels are: (1) Strict Scrutiny, (2) Intermediate Scrutiny, and (3) Rational Basis. When a fundamental right is at issue in a case, the Court will use the highest level of scrutiny, Strict Scrutiny. Under Strict Scrutiny, the Court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.

While much of the language used in Roe tended to imply Strict Scrutiny, the Court did not actually declare the right fundamental, and subsequent cases prove this. Though other cases will be discussed in detail later in the series, it is necessary to point out that in Planned Parenthood v Casey, the Court proved that abortion is not a fundamental right by adopting an Intermediate Scrutiny approach known as “Undue Burden.” Instead of the government having to prove a “compelling interest”, the burden of proof is placed on the opponent of the law, to show that the law places an Undue Burden on a woman seeking an abortion. Clearly, this is not Strict Scrutiny; since that is the level used when looking at fundamental rights, this shows that abortion is NOT a fundamental right.

2. Roe legalized abortion only in the first three months.

This one was actually repeated by my Constitutional Law professor last semester, and is one of the most commonly repeated myths about Roe. This myth is so pervasive that the vast majority of Americans genuinely believe that this is the case. In fact, when polling is done regarding public opinions about Roe, many of the pollsters frame their question in these terms: “In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?”[1]

The actual ruling in Roe split the ability of governments to regulate abortion into three categories, based on the medical classification of trimesters. Under this trimester framework, the Court banned any regulations during the first trimester, allowed minimal regulations in the second, and allowed most regulations in the third.[2] The Court actually legalized all abortions prior to viability, which it placed at about 28 weeks, which is about 7 months.[3] As mentioned earlier however, both Roe and the companion case Doe, even AFTER viability has passed, there must be a “health exception” that allows the mother to abort for any of the reasons listed previously (fiscal, mental, familial, and personal health).[4] The person who decides whether a woman meets the health exception is the abortionist, creating the possibility that a woman can get an abortion at any point prior to birth (even the day before delivery) as long as she can find an abortionist willing to perform it.

3. Overturning Roe will put women in jail.

Another common myth is that women would be thrown in jail for getting an abortion if Roe was overturned. Roe’s core holding is that abortion cannot be banned by the state, so overturning it wouldn’t result in a nation-wide ban on abortion. In order for this to happen, the Court would have to go a step further and hold that the preborn are “persons” under the 14th Amendment, and therefore abortion is a violation of the Due Process Clause. Unless the Supreme Court did this in addition to overturning Roe, abortion would remain legal unless a state chose to expressly ban it. While it is true that some states, like Louisiana, have trigger laws that would automatically ban abortion if Roe is overturned, most of them do not. The reality of a post-Roe America would most likely mirror the level of regulations that exist in the present day- conservative states with many current regulations might chose to ban abortion, more liberal states would leave their regulations the same and still allow abortions to continue as before.

Even in those states that banned abortion, it would be very unlikely that women would be sent to jail for getting an abortion. Looking back pre-Roe, when most states banned abortion, there are only two known cases in which a woman was charged in any State with participating in her own abortion: Pennsylvania in 1911 and Texas in 1922. There is no documented case since 1922 in which a woman has been charged in an abortion in the United States. In reality, the woman was typically treated as a second victim of abortion, the real target of these laws was the abortionist. Prosecuting a woman as an accomplice to the abortionist raised serious evidentiary problems that made it counterproductive- the testimony of an accomplice alone is not enough to meet the burden of proof in a criminal case, and the accomplice’s testimony must be corroborated by another source. It was difficult to prosecute abortionists under this requirement, and in order to convince women to testify against the abortionist, prosecutors had to promise them that they wouldn’t be charged for admitting to an abortion.[5]

 


[1] Roe v. Wade, 410 U.S. 113, 154 (1973).

[2]  See, e.g., Laurence H. Tribe, The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1, 7 (1973); Benjamin Wittes, Letting Go of Roe, THE ATLANTIC MONTHLY, Jan/Feb 2005); John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 935-37 (1973).

[3] Roe, 410 U.S. at 116; Doe v. Bolton, 410 U.S. 189 (1973)

[4] Roe, 410 U.S. 152-3.

[5] Id., at 154.

[6] Id.

[7] Id.

[8] Id., at 160 (28 weeks LMP).

[9] Id., at 163.

[10] Doe, 410 U.S. at 180.

[11] Doe, 410 US at 192.

[12] Clarke Forsythe et al., Constitutional Law & Abortion Primer, 10 (William L. Saunders ed., Americans United for Life 2011) available at: http://www.aul.org/primer/.

[13] Doe, 410 US at 221.

[14] Id.

MYTHS 

[1] Harris Polling Question from The Wall Street Journal http://online.wsj.com/news/articles/SB114668092648642849

[2] Roe, 410 U.S. 154-6

[3] Id., at 160.

[4] Doe, 410 U.S. at 180; Roe, 410 U.S. at 149.

[5] Forsythe, Clark, Why the States Did Not Prosecute Women for Abortion Before Roe v. Wade. http://www.aul.org/2010/04/why-the-states-did-not-prosecute-women-for-abortion-before-roe-v-wade/

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