|ROE V. WADE
What is the legal legacy of the 1973 Supreme Court decision on abortion?
January 30, 1998
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? Has Roe v. Wade changed the way the public perceives the Supreme Court?
Cynthia Gorney, author and journalist, responds:I don't know of another decision handed down in this century that has made so many ordinary Americans learn the names of particular justices and the direction of those justices' votes on one issue. I am sure that no justice has ever received the kind of personal mail that Harry Blackmun received for the rest of his days on the bench--hate letters by the thousands, but also letters of gratitude. Blackmun himself has a rather extraordinary effect on people when he talks about Roe and the preparation of the opinions--he's a small man, somewhat frail looking, and when he finishes speaking the room is often full of women who have begun to cry and then make their way toward him, weeping, so that they can embrace him. (I've watched this happen on several occasions, and he always looks both startled and moved, and does his best to return the embrace.)
Janet Benshoof, president of the Center for Reproductive Law and Policy, responds:
Despite efforts to tear down the Roe decision and infringe access to abortion, according to recent polls most Americans support legalized abortion. For example, 60 percent of respondents to a recent New York Times/CBS News Poll said that they believed Roe's decision establishing a constitutional right to abortion is a good thing; while 59 percent said government should stay out of abortion decisions, and 76 percent oppose amending the constitution to make abortions illegal. Actually, more recent decisions made by a Supreme Court with a dramatically altered composition as a result of the post-Roe Reagan and Bush appointees may have given the public a more negative perception of the High Court, as these decisions permit states to severely restrict women's access to abortion.
Mary Spaulding-Balch, state legislative director for the National Right to Life Committee, responds:
The Court's articulation of its position is so embarrassing that the invariable approach legal scholars writing in support of Roe's holdings is to "rewrite" the opinion, suggesting some constitutional rationale not proffered by the Court which attempts to justify its conclusions. Archibald Cox speaks for many: "The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations, whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child-birth and abortion or new advances in providing for the separate existence of a foetus." (Cox, The Role of the Supreme Court in American Government. 113-14 (1976)) Virtually every aspect of the historical, sociological, medical, and legal arguments Justice Blackmun used to support the Roe holding has been subject to intense scholarly criticism. As a result, the Supreme Court tarnished its image (as it had before in cases like Dred Scott, Plessy v. Ferguson, and others) as objective and non-political.
The public perception of the Supreme Court is likely to be of an unresponsive, removed and powerful political body that is simply another means of furthering a political end. Few on either side believe the image of objective Justices viewing the case before them without bias or prejudice. Today the image of a Justice is someone who enters the courtroom with a judgment and then searches for justification in the case presented. We hope that the public image is false since the objective judge will agree with us, but Roe and cases since do little to assist our hope.