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/

Abortion and Mental Health: HB 727

StBlogostine's Pic of IRMA women-men 2011 MFLDue to some unforeseen transportation issues, I was unable to make it to the Capitol in time to testify on HB 727. But I still think its important to educate people on why this bill is neccessary, so I’m going to share the testimony I had planned, which I will save for the Senate Committee. So here goes…

 

Dr. Mary Calderone, the former medical director of Planned Parenthood, once admitted: “…in almost every case, abortion, whether legal or illegal, is a traumatic experience that may have severe consequences later on.”[1] And she was correct- in addition to the many other health risks associated with induced abortion, there is a documented risk of increased mental health issues such as depression, drug abuse, and suicide. My name is Deanna, I am a law student at LSU, and I’m here today on behalf of Law Students for Life of America, in support of this bill, because Louisiana women deserve to receive informed consent about the mental health risks associated with abortion.

In his book Abuse of Discretion, attorney Clarke Forsythe points to the fact that there have been more than one hundred peer-reviewed studies, published in international medical journals, suggesting an association between abortion and adverse mental health outcomes.[2] Among these studies are:

  • A 2000 study in the American Journal of Drug & Alcohol Abuse finding a “five-fold increased incidence of abuse of alcohol and drugs in those who had aborted compared to those who carried to term.
  • A 2004 study in American Journal of Drug & Alcohol Abuse that found that women who had abortions had a higher rate of subsequent substance abuse than women who had never been pregnant or women who gave birth after unexpected pregnancies.
  • A 2003 Obb-stet-trick-cal & Gynecological Survey found that “induced abortion increased…[the incidence of] mood disorders substantial enough to provoke attempts of self-harm.”
  • A study in the Medical Science Monitor found that women with a history of abortion have a significantly higher risk of experiencing clinical depression than women who carry their children to term. This study was reinforced by a 2005 study in the Journal of Anxiety Disorders.
  • A 2006 study in the Journal of Child Psychology and Psychiatry that concluded “young women who aborted were at a higher risk for various mental health problems compared to women who carried to term…” including:

o   42% reported major depression

o   39% suffered from anxiety disorders, and

o   27% reported suicidal ideation.

  • 2010 study in the Canadian Journal of Psychiatry found that “abortion was associated with an increased likelihood of several mental disorders- mood disorders… substance use disorders…as well as suicidal ideation and suicide attempts.”
  • a 2011 study in the British Journal of Psychiatry, which is a publication of Britain’s Royal College of Psychiatrists, showed a moderate to high increased risk of mental health problems after abortion, specifically:

o   34% higher risk of anxiety

o    30% higher risk of depression

o   110% higher rate of alcohol use

o   220% higher marijuana use

o   155% higher risk of suicidal behavior.

In addition to the studies cited by Forscythe, I’ve provided you with a list of publications dealing with the mental health risks of abortion; this list was compiled by the American Association of Pro-Life Obstetricians and Gynecologists.

In upholding informed consent in Planned Parenthood v. Casey, the Supreme Court stated that “In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”[3] The proposed legislation would uphold the Court’s standard on informed consent, and should be passed to protect Louisiana women.

 

 

 

[1] Calderone, Illegal Abortion as a Public Health Problem, at 951

[2] Forsythe, Clarke D. (2013-09-24). Abuse of Discretion: The Inside Story of Roe v. Wade

[3] Planned Parenthood v. Casey 505 U.S. 833, 882 (1992)

 

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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 5: Is Abortion Good for Women?

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“All factors-physical, emotional, psychological, familial, and the woman’s age-relevant to the well-being of the patient…”[1]

“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.”[2]

These are the words used by Justice Blackmun in Roe and her companion case Doe v Bolton, to describe the so-called “health exception” in regards to the right to abortion. Additionally, Justice Blackmun implied that abortion was safer for the mother[3]. He also repeats this and go, saying that “advances in medicine and medical techniques have made it safer for a woman to have a medically induced abortion than for her to bear a child.”[4] But the credibility of these sources cited in regards to this claim, has been seriously called into question by many people.[5] Even today, maternal mortality and abortion mortality rates cannot be compared, due to the fact that neither federal nor state governments maintain any system of human form and mandatory reporting of abortion deaths or injuries. The Centers for Disease Control and Prevention depends completely on voluntary reporting systems and estimates the maternal deaths are underreported by 30 to 150 percent.[6] also things that have nothing to do with the biological risks of pregnancy, such as accidents, and homicides are also included in maternal death figures, this means that maternal death numbers are likely inflated, while the lack of reporting requirements means that abortion death figures are likely under  reported.[7]

Even Planned Parenthood, the nation’s largest abortion provider, acknowledges that abortion has many short-term risks, including blood loss, blood clots, incomplete abortions (which occur when part of the unborn child or other products of pregnancy are not completely emptied from the uterus), infections, and injury to the cervix or other organs, including cervical lacerations and incompetent cervix – a condition that can also affect subsequent pregnancies.[8]

Additionally, at that time there had been no studies done on the long-term effects abortion can have on women, both physically and emotionally. In the more than 40 years since Roe, doctors and psychologists have documented at least six long-term risks associated with abortion[9]:

  • Increased risk of preterm birth or premature delivery and future pregnancies.
  • Increased risk of placenta previa and future pregnancies.[10]
  • Increased incidence of drug and alcohol abuse.
  • Increased risk of suicide in psychiatric admission after abortion.
  • Loss of the protective effect against breast cancer of the first full term pregnancy.
  • Increased risk of violence and assault after abortion

Preterm birth occurs when the child is born prior to the 37th week of pregnancy, and it is very dangerous to the child. In fact, according to the US Center for Disease Control premature birth is a leading cause of infant mortality in the United States.[11] Preterm birth can also be a risk factor for later disabilities, including cerebral palsy and behavior problems in the child.[12]

As of right now over 130 published studies have shown statistically significant association between induced abortion and subsequent preterm birth or low birth weight. Three different systematic studies were performed in 2009, and each one demonstrated the risk of preterm birth following induced abortions.[13] The increased risk of preterm birth in these studies fell between 20% and 37%, increasing exponentially to over 100% when the woman had multiple abortions. The Institute of Medicine, a section within the National Academy of Science, also lists first trimester abortion as a risk factor for subsequent preterm birth. [14]

Placenta previa, which is when the placenta covers all or some of the cervix, is another condition associated with previous abortions that can cause serious health risks for women. The mother can experience life-threatening hemorrhaging, and the child is placed in danger of perinatal death or medically indicated preterm birth.[15] Three separate studies showed a 50 percent increase in the risk of placenta previa after an induced abortion,[16] while another study found that the risk of placenta previa can more than double when the mother has had two or more abortions.[17]

The link between breast cancer and abortion has been hotly contested over the years, but it is scientifically indisputable, that a woman’s first full-term pregnancy can reduce her lifetime risk of breast cancer.[18] A 2003 study concluded that “clinicians are obligated to inform a pregnant woman that a decision to abort her first pregnancy. They almost doubled her lifetime risk of breast cancer through loss of the protective effect of a completed full-term pregnancy earlier in life.”[19] Additionally, at least thirty-one studies have raised the possibility that induced abortion is an “independent risk” for breast cancer, or that induced abortion can directly cause breast cancer.[20]

One of the most disturbing consequences of abortion is the mental health impact. While Justice Blackmun focused on the opinion that pregnancy and motherhood could lead to psychological distress or harm, we now have evidence that abortion increases a woman’s risk of mental health problems. As Dr. Mary Calderone, the former medical director of Planned Parenthood, once admitted: “…in almost every case, abortion, whether legal or illegal, is a traumatic experience that may have severe consequences later on.”[21]

In 2011, a groundbreaking study on the effects of abortion on mental health was published in the British Journal of psychiatry, which is a publication of Britain’s Royal College of Psychiatrists. The results of this study showed a moderate to high increased risk of mental health problems after abortion, specifically a 34% higher risk of anxiety, 30% higher risk of depression, 110% higher rate of alcohol use, 220% higher marijuana use, and 155% higher risk of suicidal behavior.[22] In fact, in his book Abuse of Discretion, Clarke Forsythe points to the fact that there have been more than one hundred peer-reviewed studies published in international medical journals, suggesting an association between abortion and adverse mental health outcomes.[23]

Recently there have been disturbing cases of men attempting to force or trick their partners into abortions, such as New York pharmacist Orbin Tercero, who was convicted in 2011 of lacing his partners drink with an abortive drug or Thomas Hill, who sexually assaulted his partner in front of their children after she refused to get an abortion for a subsequent pregnancy.[24]

While not all studies agree with these outcomes, and some come down on both sides of the issue, there’s clearly a need for further research into this issue. At the very least, these studies suggest that the Supreme Court was too hasty in supposing that abortion was good for women.

 

[1]

[2] Doe, 410 US at 192

[3] Roe, 410 US at 149

[4] Doe, 410 US at 190

[5] Abuse of discretion, pages 155-180

[6] Letter of Julie Louise Gerberding, M.D., M.P.H, , director, Centers for Disease Control, July 20, 2004, reprinted in brief amicus cure I have the American Center for Law and Justice in Gonzales v. Carhart, 550 US 124 (2007), Gonzales v Planned Parenthood Federation of America, 2005 US briefs, 1382.

[7] Abuse of discretion, page 175.

[8] See http://www.plannedparenthood.org/health-topics/abortion/in-clinic-abortion-procedures-4359.asp

[9] The cost of choice (Erika bachioci); Reardon, strahan, thorpe and shuping, deaths associated with abortion compared to childbirth, 20 J.contemporary health law and policy, 279, spring 2004; Clarke Forsythe and Stephen B Presser, tragic failure of Roe V Wade: why abortion should be returned to the states, 10 Texas review of law and policy, 87, 2005; abuse of discretion, pages 155 through 180;  Thorpe, hartmann and shadigian, “long-term physical and psychological health consequences of induced abortion.

[11] Jim Thorpe et al, long-term physical and psychological health consequences of induced abortions: review of the evidence, obstrectial and gynecological survey 58(1):67, 68 (2003).

[12] W.M. Callaghan, contribution of preterm birth to infant mortality rates in the US, pediatrics 118(4): 1566 (oct 2006); B.Rooney & B.C Calhoun, induced abortion and risk of  later premature births. Physicisans & Surgeons 8(2): 46, 46-47 (2003).

[13] P. shah et al. induced termination of pregnancy and low birth weight and preterm birth: a systematic review and meta-analysis, B.J.O.G. 116(11):1425 (2009); R.H. van Oppenraaij et al, predicting adverse obstetric outcome after early pregnancy events and complications: a review, Human Reproduction. Update Advance Access 1:1 (Mar. 7, 2009); H.M. Swingle et al., Abortion and the Risk of Subsequent preterm Birth: a systematic review and meta-analysis, J. Repro. Med. 54:95 (2009).

[14] R.E. Behrman, Preterm Birth: Casues, Consequences and Prevention 519 (2006)

[15] J.M Thorpe et al., supra at 75.

[16] see  Forsythe abuse of discretion, page 255

[17] J.M. Thorpe et al., supra at 70-71

[18] Reeves, Kan, Key, et al., Breast Cancer Risk in Relation to Abortion, at 1741. See also Forscythe, Abuse of Discretion, supra pg 263-4

[19] JM Thorpe et al., supra, at 76

[20] See generally, Lanfranchi, The Abortion-Breast Cancer Link; M.C. Pike et al. Oral Contraceotive Use and Early Abortion as Risj Factors for Breast Cancer in Young Women, British Journal of Cancer 43 (1981); L.A. Brinton et al., Reproductive Factors in the Etiology of Breast Cancer, British Journal of Cancer 47 (1983)

[21] Calderone, illegal abortion as a public health problem, at 951.

[22] P. Coleman, Abortion and mental health: quantitative synthesis and analysis of research published 1995-2009, BJP 199:180-186 (2011)

[23] Page 257 ,citing  Letter to office of the United Nations High Commissioner on human rights, November 27, 2009 attachment  two, available at http://www.aaplog.org/internationalissues/aaplog-objection-to-incusion-of-universal-acess-to-reproductive-healthcare-as-a-part-of-mdg-5-letter-to-un-high-commissioner-on-human-rights/.see, e.g., Berlin at all, reasons for induced abortion, 36; Cougle, Rearden and Coleman, generalized anxiety following unintended pregnancies; Gissler et al., injury, death, suicides and homicide; Bradshaw and Slade, the effects of induced abortion or emotional experiences and relationships.

[24] Forsythe, Clarke D. (2013-09-24). Abuse of Discretion: The Inside Story of Roe v. Wade (p. 442). Encounter Books. Kindle Edition.