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Jami FloydBack to OpinionJami Floyd

Why Roe v. Wade is not like a typewriter

Forty years ago, The Supreme Court issued its decision in Roe v. Wade, with a 7-2 vote in favor of the plaintiff, Norma L. McCorvey, whose alias was Jane Roe.

It was a complicated ruling, with a companion decision in Doe v. Bolton, but ultimately the Court ruled that a right to privacy under the due process clause of the 14th Amendment to the United States Constitution extends to a woman’s decision to have an abortion.

Pro-choice rally, 1971

AP Photo: Demonstrators rally for a repeal of all anti-abortion laws in Washington, D.C., Nov. 20, 1971.

Life for women before Roe v. Wade

One in three U.S. women will undergo an abortion by the time she is 45 years old. Almost half of them are married or living with their significant other, and 73 percent of them are affiliated with a religion.

While Roe remains a controversial decision, women in this country pretty much take their right to an abortion, or at least their ready access to one, for granted. And none of us under the age of 45 remember the days of illegal abortion that predated Roe, the days of back alley abortions and the infamous “coat hangar” procedures that all too often resulted in loss of fertility and, in the worst cases, the life of the woman in question.

Dr. Waldo Fielding does, however, remember. He is a retired obstetrician and gynecologist. In a 2008 piece for The New York Times, he recalls those days with heartfelt professional insight.

The worst case I saw… and one I hope no one else will ever have to face, was that of a nurse who was admitted with what looked like a partly delivered umbilical cord. Yet as soon as we examined her, we realized that what we thought was the cord was in fact part of her intestine, which had been hooked and torn by whatever implement had been used in the abortion. It took six hours of surgery to remove the infected uterus and ovaries and repair the part of the bowel that was still functional.

The doctor offers such grisly detail for the essential context it provides. Conditions and results such as these were precisely what motivated the fight for the right to choose.

Demonstration protesting anti-abortion candidate at the Democratic National Convention, 1976, LOC, Photo by Warren Leffler

This is the painful landscape in which Roe v. Wade was rooted. In 1970, Linda Coffee and Sarah Weddington, two women’s rights lawyers were looking for a plaintiff to challenge the nation’s laws limiting access to abortion.

They found their “Jane Roe” in a poor 21-year-old woman who was unemployed and pregnant. Norma Nelson was born in Louisiana, but raised in Texas in a single parent home by a violent, alcoholic mother. She dropped out of high school at the age of 14 to marry Woody McCorvey — but he was abusive and she left him, moving back in with her mother and giving birth to her first child at age sixteen.

The following year, Norma McCorvey became pregnant again. This time, she placed the baby with an adoption service. When Norma told her mother she might be gay, her mother disowned her and took custody of Norma’s first-born child.

In 1969, at the age of 21, while working low-paying jobs and living with her father, Norma became pregnant for the third time. Friends advised her to assert falsely that she had been raped. That would have made her eligible for a legal abortion, as Texas’s law allowed for abortion in cases of rape and incest. Due to lack of police evidence or documentation, however, the scheme was not successful. Norma then attempted to obtain an illegal abortion, but the authorities had closed all suspect clinics.

That’s when Norma found attorneys Coffee and Weddington, and their three-year odyssey to the Supreme Court began. (Norma’s third child, meanwhile, was born and adopted.) Days after the Roe decision came down, Norma McCorvey explained that she had wanted the abortion because she was unemployable and extremely depressed.

In recent years, however, McCorvey has converted to Catholicism, joined the pro-life movement and stated that she is “no longer a lesbian.” In the 1980’s McCorvey went so far as to state that she had been a pawn of the two lawyers in their search for a plaintiff through whom they could challenge the laws limiting abortion. No doubt the lawyers would have found many other women, similarly situated — unmarried, unemployed, emotionally unable to care for children — who could have been Jane Roe.

The abortion debate rages on.

Roe v. Wade was not the end of the debate over women’s reproductive rights, however. Women’s reproductive rights are still being challenged today.

Just this month, Rush Limbaugh weighed in on the issue on his still popular radio program:

“You know how to stop abortion,” he quipped in response to a caller who compared legalized abortion to the shootings at Sandy Hook Elementary School that happened just before Christmas. “Require that each one occur with a gun.”

Rush Limbaugh is not alone.

A group called Americans United for Life released its annual “Life List” this week. The list celebrates states with the greatest number of restrictions on abortion, states they see as the most protective of human life. The group named Louisiana as America’s “most protected” state, while Washington was deemed the “least protected.”

And it’s no wonder the Pelican State won those kudos from a pro-life non-profit. Last summer, Louisiana passed a law requiring women to wait 24 hours between the time they undergo mandatory ultrasounds and the time they terminate their pregnancies. This includes a requirement that the fetal heartbeat be audible unless the woman ask that it not be. And — unless the woman is a victim of rape, and has reported it — she must listen to a description of the ultrasound, as well.

The mission of organizations like Americans United for Life and other pro-life groups is clear: To defend human life from conception to natural death. Moreover, they are not a fringe minority. Twenty-nine percent of registered voters say they would like the Supreme Court to overturn Roe v. Wade.

The real issue

Abortion is still what the pundits like to call a “hot button issue.” But Roe v. Wade and abortion are not interchangeable terms. The Supreme Court did not create, invent or even increase the rate of abortion with its decision in the landmark case. Abortion has been a reality since the beginning of human intercourse and ingenuity. By some accounts, the first abortion was performed as early at 1550 BCE in ancient Egypt.

Abortion was legal in the United States from the time the earliest settlers arrived. Founder James Wilson explained it thus:

With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and in some cases, from every degree of danger.

Compare that to the language of Justice Harry Blackmun in Roe v. Wade:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Justice Blackmun understood the evolution of the law in this area. In the mid-to-late 1800’s, states began passing laws that made abortion illegal. The motivations for anti-abortion laws varied from state to state, but one of the principle reasons included fears that the population would be dominated by the children of newly-arriving immigrants, whose birth rates were higher than those of native Anglo-Saxon women. Of course, the incidental cost was in the lives of women of all races, in the 19th and 20th centuries, who could no longer obtain abortions legally and were forced into primitive and suspect termination procedures.

Justice Blackmun, writing for the majority in Roe, did not manufacture a new medical procedure. He simply recognized a woman’s right to terminate her pregnancy in a medically accepted setting, in consultation with a medical professional, and in constitutional privacy.

How quickly we forget

My childhood memories include images of women marching on Washington first to secure, and then to preserve the right to choose. Just as many people marched with pro-life signs painted mostly in red.

Now, a new Pew Research Center poll finds that just 44 percent of Americans between the ages 18-49 know that Roe v. Wade is about abortion. They do not know that it protects their right to privacy and their right to choose.

And those folks who do remember Roe (according to Pew, that’s six out of ten Americans) may not realize that things have changed since 1973.

New precedents have emerged from the Supreme Court (in 1992 and 2007) that have reinterpreted Roe v. Wade. In 1992, Planned Parenthood v. Casey upheld a central part of Roe v. Wade, saying that women were still allowed to make their own decisions, but at the same time allowed for more government regulation and less privacy. As long as state restrictions did not create “undue burden” on a woman, they were permissible. What constitutes undue burden is still being debated.

Then, in 2007, in a highly controversial decision, the justices upheld a ban on late term, or so-called “partial-birth abortions.” This procedure is performed later in pregnancy and involves delivering the fetus after collapsing its skull. The ruling was noteworthy because it did not include an exception that would make it legal to perform the procedure when a woman’s life was in danger and there were no other medical options.

The same Pew Research Poll found that, once young people understand what Roe v. Wade is, they want it to stand. Fewer than one-third — 27 percent — of that age group wants to see the ruling overturned. Young people seem to believe that the question of whether or not they are in charge of what they do with their bodies is settled law. But it’s not. We can never be complacent about our civil rights.

It may seem like a world without the right to self-determination about your body is like going back to a world with rotary phones and typewriters and diesel engines. But unlike the tangible, our civil rights can disappear if we are complacent about them.

It is time for us to remind our daughters (and sons) about the decision that came down forty years ago today. Because the next generation can’t defend a woman’s right to choose if they don’t understand what it means to live in a world without it.

Jami Floyd is a lawyer, an award-winning journalist and a nationally renowned news anchor.