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| ROE V. WADE
What is the legal legacy of the 1973 Supreme Court decision on abortion? January 30, 1998 |
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Questions asked
in this forum:
Shouldn't the Supreme Court interpret laws, not make them? Should the state legislatures have decided the abortion issue? Did Roe v. Wade changed the public perception of the Supreme Court? How have privacy rights been used since Roe v. Wade? Will Roe v. Wade eventually be reversed? Should the Supreme Court have allowed the issue of abortion to be argued out in the state legislatures? If this had happened, would the abortion debate be different today? Cynthia Gorney, journalist and author, responds:
This is a tough one to answer in retrospect. Many observers from both sides of the abortion debate--including Justice Ruth Bader Ginsburg, a firm supporter of legal abortion--have argued that the majority rulings in Roe and Doe went too far too fast. Remember, the first state legalization of abortion--Colorado's very cautious "reform" law, which permitted abortion only for women who met certain pretty stiff state requirements--had come only six years earlier, in 1967. By 1973 the issue had been argued in some form in every state legislature in the country, but more than half the states had still left their criminal abortion laws intact. So the argument goes: the Court should have held off a while longer, maybe proceeded in stages, maybe saying first, you can't criminalize abortion, and then second, a few years later, you can't restrict it either. Perhaps, it is argued, that would have allowed American citizens to carry on the public argument for a longer time, and to feel that change was coming through the democratic process rather than by sudden fiat from Washington.It's important to think about the other side to that argument, though: there's no guarantee at all that abortion would have been legalized in a majority of the states. Many states responded to the great public argument by leaving their criminal abortion laws intact. And lots of us forget that in New York, which in 1970 suddenly became the most open and accessible legal-abortion state in the country, the legislature turned around the following year, after intense lobbying by abortion opponents, and reversed the legal abortion law. Only Gov. Nelson Rockefeller's veto saved legal abortion in New York. So if one's goal in 1973 was not the wonderful democratic process in the abstract, but rather legal and available abortion for all women, then it would seem cruel to make so many women wait--for what might turn out to be many more years--just to keep the argument alive at the state level for a longer time.
Would the debate be different today if the Court had held off, or proceeded more cautiously? I think it would in one sense. There's no question that the sweep and suddenness of the Roe and Doe decisions created a national right-to-life movement almost literally overnight. Right-to-life volunteers had organized in every state, to protest changes in their own state laws, but until January 1973 there really was no effective national movement at all. By the closing days of January there was suddenly a powerful national movement, coalesced around a single astonishing ruling, and focused now on a new target. Would diffusing that target, or holding it off a few years, have made a difference in the power and passion of this new national opposition movement? I think it might have. It would not have quelled the movement or made its members any less ardent in their opposition to legal abortion, but the fervor might have been tamped somewhat if people felt that they were trying to persuade their own fellow citizens and legislators rather than fighting the oppressive force of the nine old men imposing their will from Washington D.C.
Janet Benshoof, president of the Center for Reproductive Law and Policy, responds:
Since Roe, state legislatures have given into political pressure by a vocal minority of anti-choice activists who seek to deny women of their constitutional rights to access abortion. By the 1980's the Supreme Court had upheld laws clearly designed to promote fetal rights over the rights of women. The politically disenfranchised -- the young and the poor -- became the first targets as cuts in Medicaid funding, significant obstacles for teens and bans on abortion in public hospitals began to pass constitutional muster.In addition, most states have failed to make efforts to prevent abortion access from becoming severely curtailed nationwide. Currently, 84 percent of counties in the United States have no abortion provider. This is a result of anti-abortion restrictions, combined with violence against abortion providers and the decline in the number of physicians being trained or willing to provide abortions under such conditions. Indeed, until President Clinton enacted the federal Freedom of Access to Clinic Entrances act, (FACE), which provides protection and assistance to abortion providers, clinics and physicians often received little help from state or local authorities when confronting anti-abortion protestors.
Most recently, seventeen states have passed so-called "partial birth abortion" bans that, contrary to the claims of their supporters, ban abortion throughout pregnancy and may be interpreted to restrict the most commonly used and safest methods of abortion. Although courts have blocked most of these laws, the legal victories have come with a cost as they have subtly shifted the legal focus away from women's health and choices while elevating the status of the non-viable fetus. As these recent actions by states indicate, the state legislators have disregarded women's need for reproductive services, placing politics above women's health and their constitutional rights.
Mary Spaulding-Balch, state legislative director for the National Right to Life Committee, responds:
The unprecedented extremity of the Supreme Court's Roe decision is well known. After Justice Blackmun announced the Court's opinion on January 22, 1973, not a single abortion statute in any state of the Union still stood. Even the law of New York, the "abortion capital of the country," which allowed abortion on demand through the twenty-fourth week of pregnancy, was too protective of the unborn for the majority of the United States Supreme Court. For under Roe, it is constitutionally impossible for any state to prohibit abortions at any time during pregnancy.Had the Supreme Court allowed the issue of abortion to be controlled by the state legislatures, the debate itself would not have been substantively different. The question of whether an unborn child deserves the protection of law would have still existed and needed to be addressed. However, resolution of the question by the people through our democratic institutions would have been possible. The Supreme Court, however, made the effort to protect unborn children through the democratic process extremely difficult. It extinguished laws that had been protecting the unborn for years and made it impossible to replace them with anything comparable. Most significantly, it made abortion a national issue. It made abortion a hyper-protected right or fundamental right. This lead to attempts to change the Constitution itself. The Supreme Court itself was changed by its own decision, since who is on the bench is now a matter of life and death. While a variety of state laws would not be the pro-life ideal, since unborn children deserve the protection of law regardless of the state they are in, at least the people of the several states would have the opportunity to seek protection for the unborn child.
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