Myths about Roe v. Wade

Hobby Lobby Day!

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As both an active member of the pro-life movement and a law student, I am frequently confronted with the fact that the vast majority of activists on both sides of the abortion debate have many misconceptions about what Roe v. Wade actually says about the legality of abortion. Most of this arises from the fact that they have not read the case themselves, or if they did read it, they were unable to understand it due to a lack of legal training. My goal is to attempt to clear up four of the most common myths surroundingRoe v. Wade, and the legal state of abortion in general, so that our conversations about the issue will be more informed going forward.

Myth #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 is not 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 Scrutiny. When a fundamental right is at issue in a case, the Court must 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 being challenged.

While much of the language used in Roe seemed to imply Strict Scrutiny, the Court did not actually declare the right fundamental, and subsequent cases prove this. Indeed, many of the abortion cases that the Court heard between Roe and Planned Parenthood v. Casey dealt with overturning this presumption by the lower courts, though often with contradictory results.

For example, the Court struck down all abortion regulations inPlanned Parenthood v. Danforth (1976), City of Akron v. Akron Center for Reproductive Health, Inc. (1983), and Thornburg v. American College of Obstetricians and Gynecologists (1986), but upheld similar and further regulations in Harris v. McRae (1980), Rust v. Sullivan(1991), Connecticut v. Menillo (1975), and Bellotti v. Baird (1976).[1]

In these sometimes contradictory rulings, the Court seemed unsure of how to apply its own rule from Roe. For example, while Thornburgcalled abortion a “fundamental right,” the Court did not apply Strict Scrutiny.[2] Likewise in Bellotti and Harris, the Court referred only to an “undue burden” or “unduly burdensome” analysis, again ignoring the usual standard of review for “fundamental rights”.[3]

Finally, in 1992’s Planned Parenthood v. Casey, the Court clearly ruled 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 was now placed on those challenging the law, who must prove that the law places an “Undue Burden” on a woman seeking an abortion. Since then, the “Undue Burden” standard has been used in every case dealing with abortion to be heard before the US Supreme Court, clearly showing that abortion is not a fundamental right.

Myth #2: Roe legalized abortion only in the first three months.

This myth was actually repeated by my Constitutional Law professor last year, until I corrected him, and is so pervasive that the vast majority of Americans genuinely believe that it is true. 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?”[4]

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 related to maternal health in the second trimester, and allowed most regulations in the third trimester.[5] In short, the Court actually legalized all abortions prior to viability,which it placed at about 28 weeks, which is about seven months, not three months.[6]

However, in both Roe and the companion case Doe, the Court ruled that even after the child is viable, there must be a “health exception” that allows the mother to abort for almost any reason:[7]

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

“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.”

Under these factors, pro-life legal scholars have pointed out that since the abortionist is the one who determines whether a woman’s health is at risk, 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.”[8]

Myth #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. However, Roe’s core holding is that abortion cannot be banned by the state, so overturning it would not result in a nation-wide ban on abortion; it would merely return the issue for the states to decide for themselves. In order for a nation-wide ban to occur, the Court would have to go a step further than just overturning Roe, 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 my home state of 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 would chose to  ban 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- one in Pennsylvania in 1911, and one in 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, and of the criminal prosecution that resulted from them, 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 would not be charged for admitting to an abortion.[9]

Myth #4: Abortion bans were created to protect women because abortion was dangerous.

In their oral arguments before the Court, Roe’s lawyers argued that most state laws against abortion were implemented solely to protect the woman from a dangerous procedure; but this could not be further from the truth.  In fact, in the opinion Justice Blackmun wrote in Roe, he acknowledged that it was the attitude of the medical profession that played a significant role in the enactment of the stringent criminal abortion legislation of the late 1800s, and even quoted the American Medical Association’s 1857 report on abortion, in which the AMA called abortion an ”unwarrantable destruction of human life,” and called to upon state legislatures to revise their abortion laws and encouraged state medical societies to press the subject.[10] The result of this, which has been called “The Physician’s Crusade against Abortion”, was the implementation of many of the same abortion bans that were struck down by Roe nearly a hundred years later.

 Footnotes

[1] Planned Parenthood v. Danforth, 428 U.S. 52 (1976); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983);Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); Harris v. McRae, 448 U.S. 297 (1980); Rust v. Sullivan, 500 U.S. 173 (1991); Connecticut v. Menillo, 423 U.S. 9, 10 (1975); Bellotti v. Baird, 428 U.S. 132 (1976).

[2] Thornburg, 476 U.S. at 772.

[3] Bellotti, 443 U.S. at 640; Harris, 448 U.S. at 235.

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

[5] Roe, 410 U.S. 154-6

[6] Id., at 160.

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

[8] 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/.

[9] 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/

[10] Roe, at 141-2.

****I’ve done a shorter version of this post as part of my series about the Viability of Roe, but I wanted to update it and expand it for a full length article for Live Action. You can also read it here on their site.*****

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PRO-LIFE VICTORY IN LOUISIANA!

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Today was an amazing day! I am so proud to have been a part of this amazing moment in Louisiana history!

The House of Representatives voted to send HB 388 to Governor Bobby Jindal for signature! The vote was a bipartisan 88-5! When Rep. Katrina Jackson called for cosponsors to come stand with her, the response was overwhelming, with almost the entire house floor empty! Tears came to my eyes as she urged for final passage of the Unsafe Abortion Protection Act!

I was honored & humbled to have been recognized on the floor for my efforts to get this bill passed by Reps Jackson & Hoffman! I was also thankful to be awarded some delicious Pro-life brownies by Rep. Burns after passage! All in all one of the best days of my life! 

I also testified on HB 305 & HB 1262 (formerly HB 727) this morning!

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HB 388, HB 305, and HB 1262 are the work of the amazing Bioethics Defense Fund! It’s been an honor to work with them on these important pieces of legislation! Learn more about this great pro-life group and their groundbreaking work at their website: http://www.bdfund.org/

Testimony on HB 388 before the LA House Health & Welfare Committee

Deanna Candler & HB388 Sponsor Rep. Katrina Jackson before the House Health & Welfare Committee

Deanna Candler & HB388 Sponsor Rep. Katrina Jackson before the House Health & Welfare Committee

My name is Deanna Candler, I am a resident of Baton Rouge, Louisiana, a law student at LSU, and am representing Law Students for Life of America. I am here today to support the proposed regulations in HB 388.

Ladies and gentleman of the committee, you will hear today that these regulations are medically unnecessary, but this simply isn’t true. The proposed regulations are common sense regulations that would protect the health of women who undergo procedures in these clinics.

These regulations are needed in Louisiana- this need is evidenced by the history of violations and complaints against Baton Rouge’s own abortion facility, the Delta Clinic. The Delta Clinic has a history of botched abortions, unsanitary conditions, multiple violations, as well as of protecting rapists, going back to 1974, and continuing to the present day. Additionally, the Delta Clinic previously employed a woman by the name of Eileen O’Neill, who after leaving the Delta Clinic, surrendered her medical license due to Post Traumatic Stress Disorder. Ms. O’Neill  went on to practice medicine without a license, in the Philadelphia abortion clinic of Kermit Gosnell, who was convicted of murdering innocent children who were born as a result of botched abortions, and causing the death of and  countless injuries to, the women who visited his clinic.

The women of Louisiana deserve to be protected when they walk into an abortion clinic, and this regulation would do much to assure their safety.

From a legal standpoint, this regulation will not violate the standards set up by the Supreme Court. In the landmark case, Planned Parenthood v Casey, the Supreme Court noted that “not all burdens on the right to decide whether to terminate a pregnancy will be undue,” and acknowledged that a state’s interests in protecting unborn life,  in preserving the integrity of the medical profession, preventing the coarsening of society’s moral sense, and promoting respect for human life more generally, are strong enough to warrant restrictions prior to viability, even if those regulations might make abortion more difficult or expensive to obtain.

Justice Kennedy also pointed out in the 2007 case Gonzales v. Carhart, that “Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts,’ stating that State legislatures are empowered to make their own determinations of what regulations and restrictions are medically necessary.

Under these principles, the Supreme Court has upheld many abortion restrictions and regulations, including informed consent requirements, waiting periods, parental consent for minors, reporting requirements for clinics, funding restrictions, and even a total ban on partial birth abortion.

Requiring doctors to obtain admitting privileges at local hospitals would serve to protect the health and safety of Louisiana women, and since they do not violate the principles the Supreme Court follows in determining whether an abortion regulation is an “undue burden”, I ask you to support this bill.

 

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HB 388, HB 305, and HB 1262 are the work of the amazing Bioethics Defense Fund! It’s been an honor to work with them on these important pieces of legislation! Learn more about this great pro-life group and their groundbreaking work at their website: http://www.bdfund.org/

The Viability of Roe, Part 4: The Misinterpretation of Legal Personhood

Another aspect important to an historical analysis of abortion is that there was widespread disapproval and prohibition of abortion during early pregnancy before, in the view of the science of the time, human life had been infused. Our ancestors’ biologically incorrect notions of when human life begins led Blackmun to assert that, historically, “abortion was viewed with less disfavor than under most American statutes currently in effect” (in January, 1973) and “[p]hrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does … today.”[1]

Regarding this important question, scholarly research reveals that recognition of the unborn as “persons in the whole sense” was largely determined by the biological and medical knowledge of each historical era[2]. The ovum and the actual nature of fertilization were not discovered until the nineteenth century, and prior to this, scientists and contemporaneous jurists supposed that human life commenced at “formation,” “animation,” or “quickening.” Abortion was seen as unquestionably homicidal only after the gestational point at which, in light of the science of the time, human life was finally understood to be present. [3]

Many legal scholars have pointed out that other areas of law, such as torts property and criminal law, all recognize the unborn child as a person with legal protections under the law.

[M]edical authority has recognized long sense that the child is in existence from the moment of conception, and for many purposes. It existence is recognized by the law. The criminal law regards it as a separate entity, and the law of property considers it in being for all purposes which are to its benefit, such as taking by will or dissent… All writers who discuss the problem have joined in condemning the old rule, and maintaining that the unborn child out of an automobile is as much a person in the street as the mother. [4]

In reference to property law, in 1941, a New York Court stated: “it has been the uniform and unvarying decision of all common law courts in respect of the state matters for at least the past two hundred years that a child en ventre sa mère (in its mother’s womb) is ‘born’ and ‘alive’ for all purposes for his benefit.”[5]

The rules of property law have not changed, and pre-born children are still afforded their just legal protections. If property law recognizes the rights of a child in its mother’s womb, it makes no sense that the court would deny them, especially since property was not the only area of law in which those rights were recognized.

By 1971, twenty-nine states and the District of Columbia allowed suits for prenatal injuries based on tort law, and an additional nine rejected the viability distinction and allowing recovery[6]. In 1953, a New York State appellate court found that:

We ought to be safe in this respect. In saying that legal separability should begin where there is biological separability. We know something more of the actual process of conception and foetal development now than when some of the common-law cases were decided; and what we know makes it possible to demonstrate clearly that separability begins at conception.[7]

This rationale was also stated by the Pennsylvania Supreme Court in 1960:

As for the notion that the child must have been viable when the injuries were received, which is claimed the attention of several of the states, we regard it as having little to do with the basic right to recover, when the foetus is regarded as having existence as a separate creature from the moment of conception.[8]

Today, only three states do not provide tort claims for prenatal injuries, nearly 3 thirty states allow for recovery at any point in the pregnancy[9]. This is yet another example of the schizophrenic nature of the Supreme Court denying pre-born children recognition under the law, when the law of torts clearly recognized their rights.

In criminal law, the quickening distinction was dropped my most a legislatures by the 1860s as medical science progressed, and today thirty-eight states have abolished the born alive rule in the lower prosecution for fetal homicide at any time in the pregnancy.[10]him him

Justice Blackmun, writing for the court in Roe, stated that the court did not need to decide the “difficult” question of when life begins, but this is the most important question to be decided. Because it is not the courts job to decide what philosophy or religion is correct, it must be scientific fact which dictates who is covered by the Constitution.  There is no doubt that human life begins at conception (also called fertilization), and even the most cursory glance into the science of fetal development would confirm this fact.[11] The court gave no rationalization for why a human and a person were separate entities, that required separate legal protections under the law, and many have criticized this distinction as similar to the one the Court made in Dred v Scott.[12]


[1] Roe

[2] Roger Resler, Compelling Interest, page 19 – 30

[3] Compelling Interest, page 26

[4] Prof. William Prosser Law of Torts at 335.

[5] In re Holtenhausen’s Will, 175 Misc. 1022, 26 N.Y.S.2d  140 (NY Surr. Ct. 1941).

[6] Abuse of Discretion , page 275

[7] Kelly v. Gregory, 282 App.Div. 542, 125 NYS.2d 696, 697 (1953).

[8]Sinkler v Kneale, 401 Pa. 267, 164 A.2d 93, 96 (1960)

[9] Abuse  of Discretion, page 283 figure 7.

[10] Abuse of Discretion, page 284-5  figure 9.

[11] See e.g.  http://www.princeton.edu/~prolife/articles/embryoquotes2.html (a compilation of quotes from recognized medical textbooks and authorities,  on when human life begins)

[12] See e.g Compelling Interest, page 20;  Justice Scalia’s dissent in Planned Parenthood v. Casey at 998

The Viability of Roe, Part 3: How Roe Re-wrote History

579240-closeup-picture-of-a-row-of-old-history-booksThe court begins its discussion of the merits of the original abortion case, Roe by looking at the history of abortion. While the court notes that it is universally accepted that abortion after quickening (the first movements felt in utero at about 16-18 weeks) was a crime at common law throughout history, they seem unable to decide whether this matters, and rely heavily on two articles by Cyril Means Jr. who was general counsel for NARAL[1].  Means research had a decidedly pro-abortion slant and has been criticized by many.  In fact in 2006 Joseph Dellapenna a professor at Villanova law school wrote a scathing 1200 page book refuting the “history” used in the Roe decision[2].  Historical research that was available in 1973 and has been undertaken since that time has repudiated virtually all of the court’s historical claims.[3]

For instance, apart from remarking that the Persian Empire banned abortion, Justice Blackmun’s survey of the ancient world was limited to Greece and Rome. Yet, numerous other sources indicate that abortion was condemned in the twelfth century B.C. by Assyrians, Hittites, early Hindus, Buddhists of India, and Indian law; and there is some evidence that the ancient Egyptians took a similar attitude.[4] This information was included in the works of Eugene Quay, who Blackmun cited, but failed to incorporate into his opinion.[5]

Despite the availability of other historical sources, Justice Blackmun left a gap of more than a thousand years in his survey of history, jumping from his discussion of ancient attitudes straight to Anglo-American common-law; during this thousand year period, history tells us that the majority of the world opposed abortion.[6]

The Court also claimed that prior to quickening abortion was not indictable offense under law again relying on means his article. However, English common law clearly prohibited abortion and the American colonies adopted this common law.

Before the debate about abortion began in earnest in the 1960s, it was accepted by lawyers, both ‘prolife‘ and ‘pro-choice,‘ that abortion had been prohibited by Anglo-American criminal law for 700 years and that the law’s main, if not sole, purpose was protection of the fetus.  In the 1950s Glanville Williams, the eminent Cambridge University law professor and vigorous pro-choice activist, explained the rationale of the anti-abortion legislation permeating the U.S. and England. The fetus, he wrote, ‘is a human life to be protected by the criminal law from the moment when the ovum is fertilized. ‘[7]

Another part of this “historical survey” involved the legislative history of the Texas abortion law and others like it. This legislative history was later the foundation for the court’s decision regarding personhood of the unborn child. Up until the 1960s, all but a few of the 50 states prohibited abortion except when it was necessary to save the life of the mother[8]. These abortion laws were enforced, updated and strengthened during the nineteenth century as medical understanding progressed[9].  In the oral arguments, Roe’s lawyers argued that most state laws against abortion were implemented solely to protect the woman.  This could not be further from the truth.  In fact, Justice Blackmun acknowledged that it was the attitude of the medical profession that played a significant role in the enactment of the stringent criminal abortion legislation of the late 1800s, and even quoted the American Medical Association’s 1857 report on criminal abortion., in which the AMA called abortion an” unwarrantable destruction of human life,” and called to upon state legislatures to revise their abortion laws and encouraged state medical societies to press the subject.[10]

Clearly, the historical research on which Justice Blackmun relied was at best biased and incomplete, and at worst was a complete revisionist history concocted with the sole purpose of justifying the abortion decision.


[1] Means’ two history articles were funded by the pro-abortion advocacy group, Association for the Study of Part II: Abortion (ASA).  See JOSEPH DELLAPENNA, “Dispelling the Myths of Abortion History” (2006) note 40 at 14, 143-44, 1004.  Justice Blackmun cited Means‘ two articles a total of seven times, and no other source on the history of abortion more than once.  See Roe, 410 U.S. at 136-52, 158 n.54.

[2] JOSEPH DELLAPENNA, DISPELLING THE MYTHS OF ABORTION HISTORY (2006

[3] See JOSEPH DELLAPENNA, DISPELLING THE MYTHS OF ABORTION HISTORY (2006); Robert Byrn, An American Tragedy: The Supreme Court on Abortion, 41 FORDHAM L. REV. 807 (1973); Robert Destro, Abortion and the Constitution: The Need for a Life-Protective Amendment, 63 CAL. L. REV. 1250 (1975); James Witherspoon, Reexamining Roe: Nineteenth Century Abortion Statutes and the Fourteenth Amendment, 17 ST. MARY‘S L.J. 29 (1985); Paul Benjamin Linton, Planned Parenthood v. Casey: The Flight From Reason in the Supreme Court, 13 ST. LOUIS U. PUB. L. REV. 15, 107-31 (1993) (This article, among other things, compiles 64 cases from 40 states demonstrating that the purpose of the nineteenth century state abortion prohibitions was to protect the life of the unborn child); Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 VAL. U.L. REV. 563 (1987).

[4] see a Dennis J. Horan and Thomas J Balch, Roe v. Wade: No justification in History, Law, or Logic, in Abortion and the Constitution: Reversing Roe v. Wade Through the Court,  note 24 at 62.

[5] Quay, Justifiable Abortion – Medical and Legal foundations, (pt. 2) ,  49 Geo. L. J. 395 (1961), cited in Roe v. Wade, 410 U.S. 130 n.9.

[6] See Dennis J. Horan & Thomas J. Balch, Roe v. Wade: No Justification in History, Law, or Logic, in ABORTION AND THE CONSTITUTION, supra note 44 at 67.

[7] John Keown, Abortion Distortion: A Review of Dispelling the Myths of Abortion History, 35 J.L. MED. & ETHICS 325 (2007).

[8] Linton, “Enforcement of State Abortion Statutes after Roe,” at 159–161.

[9] Forsythe, Clarke D. (2013-09-24). Abuse of Discretion: The Inside Story of Roe v. Wade, at. 360. Encounter Books. Kindle Edition.

[10] Roe at 141-2

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/

Can I bring NARAL to class, please?

 

 

This post first appeared on Live Action News. 

naral

NARAL is calling on abortion supporters to sign a petition urging Nebraska to investigate Judge Peter Bataillon, after he denied a request for a Judicial Waiver of Parental Notice of Abortion. Because he made a decision they disagree with, NARAL now wants Judge Bataillon investigated on the basis that he once represented members of the pro-life group Operation Rescue, and was once the President of a local Right to Life organization. Apparently, NARAL thinks being pro-life means you aren’t qualified to be a judge.

Unfortunately for NARAL, there is no way for Nebraska to investigate the judicial decisions made by a judge due to a little thing called “Judicial Immunity”. Basically, this means that a judge cannot be held liable in civil or criminal court for a ruling made from the bench. In the case Bradley v. Fisher in 1872, the Supreme Court ruled that “A judicial officer, in exercising the authority vested in him, should be free to act upon his own convictions, with out apprehension of personal consequences to himself. “ This is precisely what Judge Bataillon did, and he cannot and should not be punished for doing his job.

 

These allegations are clearly false- not only did the Nebraska Supreme Court ruled 5-2 that Judge Bataillon made the correct ruling, but in his 2012 State Bar Association Rankings 89.6% of lawyers recommended that he retain his position on the bench, with impartiality and fairness being factors in that ranking.

But even if Judge Bataillon had done something wrong in this case, which is not the case, the law is clear that even when an act is acts are in excess of their jurisdiction AND are alleged to have been done maliciously or corruptly, Judges cannot be held liable for them under the principle of judicial immunity.

Not only are NARAL’s accusations false, but they are dangerous and fly in the face of long established law. Imagine what would happen, if every decision a judge made could lead to an investigation, or a lawsuit; judges would be afraid to rule on important issues that might not be popular, or against parties that have political influence or are wealthy enough to cause them trouble. It would completely cripple our legal system! NARAL should end their witch hunt against Judge Bataillon, instead of continuing to persecute Judge Bataillon for pro-life beliefs.