|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? Roe v. Wade has been challenged again and again since 1973. Could it eventually be overturned once the members of the Supreme Court change? Isn't Roe v. Wade doomed to fail eventually unless it is added to the Constitution?
Cynthia Gorney, author and journalist, responds:The Supreme Court is the 800 pound gorilla--it sits where it wants, it does what it wants, and with the right change of composition, anything could happen. But a solid majority now favors constitutionally-protected abortion in some form. Planned Parenthood v. Casey, the 1992 ruling that established this state of affairs, took nearly everybody by surprise: the betting on both sides was that the Court was preparing to overturn Roe, either explicitly or implicitly, and lots of writers like me got caught up in what turned out to be Ooops headlines like the one that appeared on my Washington Post Sunday Magazine article about the impending Casey ruling: End of the Line for Roe v. Wade. (I didn't write that headline, but I didn't object to it, either!)
Instead, what the Court said in Casey, in essence, was this: We're not going back. Too many women have come to depend on abortion; to undo this right would cause unacceptable chaos & damage in the private lives of our citizens. We will re-examine Roe to a certain extent; we will no longer use trimesters to divide up acceptable levels of interference by the states. Instead we will use a new standard: "undue burden." If the law in question imposes an Undue Burden upon women, then that law is unconstitutional and must be overturned. (The Pennsylvania law requiring women to notify their husbands before an abortion, for example, was found to be a U.B.) But we may find that certain requirements previously thought unacceptable--mandatory waiting periods, for example, forcing women to wait 24 or 48 hours between first visit to doc and the abortion itself--are not a U.B. and will now be allowed to stand.
Since that time, of course, Mr. Clinton has been elected and has added to the Court the apparently adamant legal-abortion supporters Stephen Breyer and Ruth Bader Ginbsburg. Both are young, as justices go, and Breyer replaced the anti-Roe justice Byron White. So anything could happen, one supposes...an ardently conservative right-to-life President could be elected to office; death or sudden retirement or amazing philosophical conversion could suddenly strip the six-vote legal-abortion majority; the whole exhausting constitutional question could be hauled out of the trunk into which the Court tried to pack it with its Casey ruling...
But I'd say that's pretty unlikely.
Janet Benshoof, president of the Center for Reproductive Law and Policy, responds:
The tremendous breakthrough in repudiating the stereotype that a woman's biology is her destiny and motherhood her only legitimate choice was short-lived. Roe galvanized an entire anti-choice movement determined to reinstate the myths the Court had rejected. Their principal means of achieving this goal was to focus the public's attention away from the woman and onto the rights of the fetus, and to promote the myth that women seeking abortions are somehow "bad" women -- godless, selfish and immoral.
By the time the Supreme Court heard Planned Parenthood v. Casey, in 1992, two consecutive anti-choice presidents had dramatically changed the Court's personnel, and Roe's pro-choice majority was long gone. While the Casey decision did not overturn Roe outright, it allowed the states to create obstacles that severely hamper women's --especially poor women's -- access to abortion. Ironically, over the last 25 years, the Court has continued to reject sexist stereotypes in virtually every area of law except reproductive rights. While women have gained more power in the work place, in the classroom, and over their financial affairs, they have lost ground in controlling their reproductive lives. It is time for a new era in constitutional law; one in which the Supreme Court wakes up to the social reality that there is no real difference between the woman who chooses to have an abortion and the woman who chooses to give birth. It would be a shame if the next generation of women continued to be burdened by the same stereotypes that the Supreme Court sought to abolish on their behalf 25 years ago.
Mary Spaulding-Balch, state legislative director for the National Right to Life Committee, responds:
Certainly Roe may be overturned and we hope it is very soon. Who is on the bench is of utmost importance to us as a result. Who appoints and approves the members of the Supreme Court is also very important as a result. However, simply overturning Roe would not make abortion illegal. Some statutes that Roe invalidate may become valid again, but by and large, reversal of Roe would simply move the matter to the state legislatures. While protection of the unborn child would not be secured by this, it would at least be a possibility; whereas, today abortion on demand allows no protection for the unborn child aside from the pro-life choice of her mother.
Making Roe part of the Constitution cannot change the fact that it is wrong to kill an innocent unborn child. It does not settle the question of the humanity of the unborn child, it simply attempts to disenfranchise those of us who want to protect another more vulnerable member of the human family - the unborn child. Making Roe part of the Constitution would do nothing to resolve the abortion issue. Roe v. Wade is indeed doomed to failure, regardless of whether it is incorporated into the Constitution. Once the Supreme Court held that the right to life was an arbitrary right and not an inalienable right, it set the wheels in motion for its own doom.