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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? How has the argument of privacy rights been used by the Supreme Court in cases since Roe v. Wade? Cynthia Gorney, author and journalist, responds:
Since Roe the Court has ruled on abortion in more than a dozen major cases, and each of those in some fashion invokes the privacy right--examining different aspects of state abortion law to see whether those laws impinge unacceptably on the privacy right as it was outlined in Roe v. Wade. (Almost always, up to the late 1980s, those laws WERE found to have impinged unacceptably--except when they cut off funding or required parental consent for minors.) The notion of a right of privacy was also invoked in Bowers v. Hardwick, the 1986 case challenging the Georgia sodomy law. But in that case the Court backed off, and found that the right of privacy did not include a constitutionally protected right to engage in gay sex.Janet Benshoof, president of the Center for Reproductive Law and Policy, responds:
Although the right to privacy has been expanded considerably in some areas of constitutional law since Roe, the erosion of Roe's protections began immediately as well-funded abortion opponents pressed state and federal lawmakers to enact a wide range of restrictive abortion laws, which would directly or indirectly reverse the protection of women's reproductive choices. Many states adopted requirements, some of which were subsequently found unconstitutional, requiring for example, that married women involve their husbands in their abortion choice, mandates that young women consult their parents in their abortion decisions, restrictions on abortion coverage in state Medicaid programs and state employee health plans, bans on the performance of abortions in public hospitals, mandatory delay and biased counseling requirements, and bans on particular abortion methods. By 1976, Congress had passed the first Hyde Amendment, which continues to ban the use of federal Medicaid dollars and other federal funds for all abortions except those in cases of rape or incest.
Lawsuits challenging the constitutionality of these restrictions provided the Supreme Court with numerous opportunities to dilute the fundamental right to choose abortion, and it wasn't long before the more reluctant members of the seven-Justice majority in Roe abandoned full protection for this right. A series of decisions, culminating in Planned Parenthood v. Casey, from 1976 to 1992, weakened Roe's protection of women's right to make reproductive decisions, particularly for young women and women in poverty, as the Supreme Court became increasingly conservative after the retirement of several of the Roe majority Justices and the appointment of several Justices by Republican presidents.
Mary Spaulding-Balch, state legislative director for the National Right to Life Committee, responds:
The most dramatic example was in the assisted suicide cases of Washington v. Glucksberg and Vacco v. Quill decided in 1997. Lower federal courts had made much of the logic behind Roe v. Wade, especially as interpreted in the 1992 abortion case Planned Parenthood v. Casey, as a precedent for declaring a constitutional right to euthanasia. Indeed the "autonomy" aspect of the right to privacy was the key basis used by legal advocates of euthanasia. However, in a unanimous decision, the Supreme Court declined to apply the "right to privacy" rationale of Roe to the euthanasia area. Many commentators have speculated that the vigorous reaction to Roe, especially the way that not only opponents of abortion but also constitutional law theorists who support legal abortion as a policy matter have questioned the legitimacy of the Roe decision, played a significant role in dissuaded the contemporary Court from using it as a basis to step into the fray over assisted suicide and euthanasia.
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