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.*****

Free Speech at LSU

Image

In September the Daily Reveille, the LSU Student newspaper, ran a story by Jana King criticising the new speech policy on campus as a result of my lawsuit last year. I tried to respond with the following letter, but since they chose not to publish it, I figured I would do that here on my blog:

While I support Miss King’s right to Free Speech (despite the fact that she clearly doesn’t respect that of others), it would be irresponsible for me to ignore her September 2nd article on Free Speech, both as a law student and as the person responsible for the lawsuit resulting in the new speech code she so clearly despises.

In October of last year, lawyers from Alliance Defending Freedom filed a law suit on my behalf, after I was told by school officials that I was not allowed to hand out small flyers while participating in a pro-life silent protest. I was not asking for the right to harass anyone, I was simply asking for my constitutionally guaranteed rights to be upheld by LSU.

You see, contrary to what Miss King seems to think- you ARE guaranteed your right to Free Speech on campus, even if what you have to say might offend someone else. In fact, in Tinker vs. Des Moines, the Supreme Court emphatically tells us that students do not “shed their constitutional rights when they enter the schoolhouse door.”

Nor do they support limiting our right to free speech on the basis of “offending others.” I doubt there is anyone on campus who would deny that the actions of the Westboro “Church” in protesting military funerals and even those of victims of school shootings and natural disasters are terrible and extremely offensive. Yet in 2011, the Supreme Court upheld Westboro’s right to free speech.

While there are cases that give schools the ability to place reasonable restrictions on speech to preserve the educational mission of the university, such as not allowing protesters to be disruptive inside the buildings and class rooms, limiting free speech to a small sidewalk is not a reasonable restriction.

LSU is approximately 28,000,000 square feet and that has a student population of nearly 30,000 students, yet under the former policy the free speech rights of students and students organizations were limited to an area of approximately 1,000 square feet, or a mere 0.0035% of campus. This is not reasonable. And LSU knew it, which is why they didn’t go to court to attempt to defend the old policy.

I am proud that my school recognized the problem with restricting free speech, and I am proud that they fixed it. I am proud to be the catalyst for that change. I am ashamed that people of my generation, like Miss King, do not seem to understand that millions of men and women have died over the history of our great nation to ensure that we have the right to speak freely about issues that are controversial.

The right to speak out against injustice has led to amazing societal advances, among them the end of slavery, the right of women to vote, and the end of segregation. If I believe, as I do, that abortion is an injustice on par with those listed, how can you tell me that I shouldn’t be allowed to speak up about it? I might be in the minority and my beliefs on the issue might be offensive to others, but at one point so were the beliefs of abolitionists, suffragettes, and desegregation supporters.

Safe, Legal & Rare?

If you haven’t heard of the horror that is Kermit Gosnell’s Philadelphia abortion clinic, I urge you to take the time to read the Grand Jury Report. (WARNING GRAPHIC IMAGES)
It is a little lengthy, and contains disgusting details related to Gosnell’s heinous crimes, but nonetheless it is an important read. It is the cavalier attitude the pro-abortion movement has cultivated towards life that is responsible for this travesty. People have forgotten that the unborn are alive, they have dehumanized them to the point that the people involved in this operation did not think to question what was happening. They have made abortion into a profit business, and Gosnell wanted to capitalize on it.
One of the most telling details of this story is that someone from the National Abortion Federation came to inspect the clinic. Not only did Gosnell’s clinic not meet NAF’s “standards”, the inspector said it was the worst abortion clinic she had ever seen. She admitted that she saw patients being treated with powerful drugs by unlicensed workers, witnessed violations of the mandatory 24 hour waiting period, and other self-described “dangerous” practices.
The pro-abortion movement’s mantra is “keep abortion safe, legal, and rare.” Yet when NAF saw women being put in a dangerous situation, they did not go to the authorities. They did not try to protect these poor women. They kept their mouths shut, and allowed Gosnell to continue his illegal practices.
NAF is not the only organization at blame for what happened in Philadelphia, but their actions (or lack thereof) are at least partially to blame. And it seriously undermines their claims to care about safety and about the women themselves.

CPAC 2013

I am so excited to be going to CPAC 2013 next week! It was a last minute decision but I’m glad I made it!

I’m a bit OCD, so I’ve been pouring over the agenda trying to determine what I want to go see, hear, and do the most- and all of it looks amazing! A few things that I’m really looking forward to are:

Palin, Gingrich, Perry, Jindal & Ryan’s speeches. Even if you aren’t a fan of them, you have to admit they know how to get people excited! As a former speech major, I love watching them perform- because that is what they do!!

The Faith and Family Coalition Prayer Breakfast.

AUL’s screening of “3801 Lancaster” which is a documentary about the horrific discoveries the FBI made in their 2012 raid of Kermit Gosnell’s abortion clinic. I’m sure this movie is going to be hard to watch, but I know it’s important that it gets seen!

Mike Huckabee’s pro-life movie “The Gift of Life.”

“The Making of America: The Substance and Meaning of the Constitution” lecture

The Honorable Mike Lee, “The Relevance of the US Constitution Today” lecture

A panel on the Benghazi cover-up.

Fight Club 2013, which is with Paul Belaga and Tucker Carlson

A panel on engaging youth in the conservative movement, obviously something near and dear to my heart!

Occupy Unmasked- the late Andrew Brietbart’s documentary on Occupy Wall Street

Meet and Greet with Paul Ryan!!!!!!!

“Hillary: The Movie” is the movie behind the Supreme Court’s Citizens United case! As a law student, I must go!

Gingrich’s documentary about my favorite president, Ronald Reagan.

A luncheon with Santorum

A panel on Abortion and Religious Liberty led by Marjorie Dannenfelser, President of the SBA List.

And there’s so much more!

I’ll do my best to keep ya’ll updated next week!

I AM THE 53%

My Dad worked nights so I could go to private school and get the best education possible.
I started working on the day it became legal for someone to hire me- my 16th birthday.
I’ve plunged toilets, cleaned up puke, and interned for free- because I believe hard work is how you achieve the American Dream, NOT government handouts.
I want a family but I realize that I cannot afford one right now, so I work hard so that one day I can.
I took out students loans, and will probably take out more- because I believe education is an important self-investment.
I have some credit card debt, but I don’t blame Wall Street or greedy corporations-I blame myself for buying too many shoes!
I don’t like the direction our country is going but instead of sitting around with a sign, I ran for office, I volunteer for candidates I believe in, and I WORK to affect change.
I AM THE 53%

Open Message to “Occupy Wall Street”

Dear Occupy Wall Street:

GROW UP!

Hi, my name is Deanna. I work hard and go to school. I’m paying a lot of money for school because I want to better myself. I work hard at my job because I believe the American Dream is earned, not given by the government. I take out student loans, and I understand why they need to be paid back. I went two years without health care and didn’t complain. I live within my means and do not blame any one else for any debt that I accrue. I am in the Tea Party. I do not get paid for that, I do not quit my job to participate. I do not call for violence or violate the law in my protest. I do not violate property rights. I know what I believe in:

God

The Sanctity Of Life

A Small Government

Low Taxes

Hard Work

I don’t expect anyone to give me things for free. I don’t think the government is my sugar daddy. I might fall in the category of “poor” but I do not blame wall street, and I know that increasing taxes on the people who create jobs in this country will NOT CREATE JOBS!

So I have some advice for you:

Go Home

Take a Shower

Go to class

Get a Job

Get off your butt

Work Hard

GROW UP AND STOP BLAMING EVERYONE ELSE FOR YOUR PROBLEMS!!!!!!

ARIZONA

I am SICK of links and articles talking about how politics is why the shooting in AZ happened.

THIS GUY WAS MENTALLY ILL!

Instead of coming together and trying to prevent this type of thing from happening again; instead of using it as a catharisis for the divisions in our country; instead of reflecting on the importance of family and friends; instead of all the many things we can learn from this tragedy- so many of yall are making the  divisions our country faces even worse by politicizing this and making it about something other than INNOCENT people being gunned down by a mentally ill nut bag.

Just shut up already!

This isn’t about any of us- Conservatives, Liberals, Republicans or Democrats, this is about a 9 yr old little girl, men in the prime of their life, innocent grandparents, and a woman fighting for her life in a hospital bed.

 

This is about them:

 

nine-year-old Christina Taylor Green

 

 

Dorothy Morris

 

 

Judge John Roll

 

 

Phyllis Schneck

 

 

Dorwin Stoddard

 

 

Gabe Zimmerman

 

 

Congresswoman Giffords