Myths about Roe v. Wade

Hobby Lobby Day!

SCOTUS

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.*****

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/

Over The Edge for Adoption

Over The Edge for Adoption

 

I’ve previously shared with ya’ll that I am adopted, and now I want to ask for your help to connect other foster kids with their forever homes. Currently there are are more than 500 children in Louisiana waiting for their chance at a home like mine, and I want to help by participating in “Over the Edge for Adoption” with Louisiana Family Forum! Please consider donating if you can, or help by sharing with your friends who may be able to contribute! Thank you! 

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/

Unwanted

Imagine that there are three little children, two girls and a boy. They are all unborn, unplanned, and for all purposes, unwanted.

Girl # 1 will be the oldest, her mom will have her at only 14 years old. She will grow up neglected, and see things that no little child should see. She will be placed in foster care around the age of 5.

Her little brother will be born two years later, when her mom is 16. He too will be neglected, but he will also be physically abused by some of mom’s boyfriends. He will grow up with special needs. He is 3 when they are placed in foster care.

Last comes the baby of the family, Girl #2, who is born when her mom is 19. She will not spend much time with her mom, but what little time she does spend will be marked by neglect. She will be placed in foster care before she is even a year old.

All of this sounds pretty horrible- a lot of suffering, a lot of neglect, and little love. Would it be better for these three little children to never have been born? After all, then they would never suffer from neglect, never be hungry, never be hurt, never have to cry themselves to sleep. Many abortion advocates will talk about how it would be better to abort than to bring unwanted children into this world, and would consider the fate of these three children to prove their point…

But this is only half of their story. 

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They are adopted, all of them at the same time, by two amazing parents. Their parents love and adore them; they do more than just feed and clothe them, they teach them right from wrong, they kiss boo-boos, they take them to Disney World, take them hunting and fishing, teach them to ride a bike, help them with algebra homework, cry as they watch them walk across the state at graduation. They are a family, a close and loving family. And these three little children grow up to be adults.

Girl #1, Stephanie, is a strong, independent, military wife, who loves photography, and plans to start a family of her own soon.

The boy, Kenneth, loves to read and play video games. He lives on his own and has a steady job.

Girl #2, Deanna, graduated from college and is now in law school, Girl #2 is me.

This is my family. This is my story. A story that shows that even unplanned children born looking like they have no future still deserve a chance at life. That even “unwanted” children can be wanted and loved very much. The next time you hear an abortion advocate say “Every Child A Wanted Child” think of me and my family, and know that there is no such thing as a  truly unwanted child.

Dear Wendy Davis,

(this originally was published by Live Action News)

WendyDavis

Dear Wendy Davis,

I was pretty taken aback by your comments today in your interview with the Weekly Standard. Disturbing enough was the reiteration of Nancy Pelosi’s argument that “abortion is “sacred ground,” but I was completely floored that you claimed to know nothing about the horrific Gosnell case. Are you being willfully ignorant of this travesty, or are you so blinded by the abortion money being thrown into your possible governor’s race that you are willing to risk women’s lives instead of researching what is going on in abortion clinics across America?

But perhaps you’ve been too busy helping Planned Parenthood try to avoid clinic regulations that would make abortion safer for the women involved, and didn’t get to read any of Live Action’s extensive Gosnell coverage. Or maybe the lack of mainstream media coverage on the important issue of abortion is to blame for your ignorance. Either way, I’ve decided to help you out with this handy little list of facts from the Gosnell case:

  • Gosnell also hired a high school girl, who was responsible for administering dangerous drugs to patients (Grand Jury Report, pp. 2, 34-35).
  • Basic sanitation requirements were ignored, resulting in many sexually transmitted diseases being given to his patients (Grand Jury Report pp. 9, 48).
  • In addition to his disgusting abortion mill, Gosnell also operated an illegal prescription pain medicine mill, which is the only reason he was even investigated (Grand Jury Report, pp. 2, 19-22).
  • Gosnell performed illegal late-term abortions, after the point of viability (Grand Jury Report, pp. 3).
  • Gosnell was usually absent from the clinic during the day, which led to many patients giving birth to their children on the floor, and even in toilets, with no medical personnel to care for them (Grand Jury Report, p. 4).
  • When Gosnell was there when the women gave birth, he would cut into the infants’ necks with scissors, severing their spinal cords, to ensure “fetal demise” (Grand Jury Report, pp. 4, 99-116).
  • While he performed these murders, Gosnell would laugh and joke about the size of the infants – one time remarking that a child was “big enough to walk [him] to the bus stop” (Grand Jury Report, pg. 5).
  • Gosnell was a danger to the women who trusted their lives to him – botching many abortions, and leaving women with permanent injuries (Grand Jury Report, pp. 6, 71-72).
  • One of these women was Karnamaya Mongar, a 41-year-old refugee who had recently come to the United States from Nepal,
    who was killed by Gosnell (Grand Jury Report, pp. 7-8, 117-136).
  • Gosnell’s clinic wasn’t inspected for nearly 17 years, despite numerous complaints and reports of shoddy practices, allowing him to get away with these illegal and dangerous practices (Grand Jury Report, pp. 9-13, 137-218).
  • Gosnell failed to keep his clinic clean, and to make sure that his equipment was up to date and working properly (Grand Jury Report, pp. 44-49).
  • Gosnell implemented racist procedures when it came to patient care (Grand Jury Report, pp. 61-62).
  • Gosnell defrauded patients, insurance companies, and even nonprofit organizations out of millions of dollars (Grand Jury Report, pp. 88-90).
  • Gosnell took unauthorized photographs of patient’s vaginas (Grand Jury Report, pg. 73).
  • Gosnell cut the feet off some of the children and displayed them in glass jars (Grand Jury Report, pg. 74).

Now that you know the facts of the case, perhaps you can answer the reporter’s original question:

What is the difference between those two, between legal abortion at 23 weeks and what Gosnell did? Do you see a distinction between those two [acts]?

Thanks,

Deanna

Seauxing LSU

I decided in seventh grade that one day I was going to attend Louisiana State University’s law school, and anyone who knows me can tell you that I’ve bled purple and gold ever since. So when I finally got there last fall, I never expected that in a few short months I would be involved in a lawsuit against the school.

It started in September, when I was gearing up for the 2012 Pro-Life Day of Silent Solidarity, which I’ve participated in for five years now. As part of the silent protest, participants hand out small cards explaining our silence and listing fetal development facts. I had never had any issues with this before, but LSU was different – it had Free Speech Alley. I had spoken to some of my friends who attend the undergraduate campus, and the general consensus was that students were allowed to pass out materials only in Free Speech Alley.

This concerned me, and I wanted to verify it, so I looked up the policy: “Distribution of Printed Material on Campus,” on page 28 of the Student Organization Policy Handbook, which listed the office in charge, strangely, as the Finance and Administration Office. I called and spoke to the assistant to our vice chancellor and chief financial officer. I gave her the details of my event, “Pro-Life Day of Silent Solidarity,” and told her I was concerned with where I was allowed to pass out my small informational flyers.

She asked me if I was doing this event with a student organization, and told her I was participating on my own, and I was told that I still had to follow the same rules as a student organization.

 LSU’s Free Speech Alley
LSU’s Free Speech Alley.

I was then told that those policies dictated that I could pass out the flyers only if I was in the area known as “Free Speech Alley,” which is a small stretch (about 24 yards) of sidewalk near the LSU Student Union. Also, if I wanted to pass flyers out in Free Speech Alley, I would need to register my event with Campus Life (pg. 19 of Student Org. Policy Manual), as Free Speech Alley has limited space available each day. When I asked if there was an exception if someone asked for one of my flyers, I was told that in that circumstance, I could hand it to him – but only if he asked. I then confirmed all this in a separate phone call with the coordinator for the LSU Finance and Administrative Services office.

The summer before I came to LSU, I was privileged to have attended ADF’s initial Collegiate Academy, where I was first introduced to their Speak Up program that provides university students with resources and legal help with unconstitutional, restrictive speech codes on their campuses. With this in mind, I decided to contact attorneys at Alliance Defending Freedom, who advised me that this was an unconstitutional violation of my First Amendment rights.

The big decision came next – should I file a lawsuit? On one hand, I would be standing up for my constitutional rights, and making the campus a better place for my fellow students; on the other hand, I might be targeted by unwelcome attention, or punished in some way. I sought the advice of my parents, husband, and in-laws, and did a lot of praying before finally deciding that a lawsuit was the right thing to do.

The lawsuit never went to court. Instead, LSU agreed to revise its speech policy, and the new policy was released last week. Under the newly clarified speech policy, my fellow LSU students are free to distribute literature almost anywhere on campus, and they do not have to obtain prior approval!

I am extremely humbled that I was able to help make this change happen, and I’m thrilled that the new policy will ensure that I and my fellow LSU students are able to freely exercise our freedom of speech. It was a hard decision, but I know that it was the right one, and the attorneys at ADF were so patient and helpful, making sure that I understood exactly what was going on at all times.

If your university has a Free Speech Alley or a restrictive speech policy, I would encourage you to contact ADF and make a stand for free speech on your campus!