Woeful Roe

You may think the Supreme Court decision in Roe v. Wade was a watershed moment in women’s rights. You may think it was the beginning of the end. I’m not going to try and change your opinion on abortion: there are very few people who haven’t developed a very firm opinion on abortion. What I am going to try to do is argue that regardless of your views on abortion, legally Roe must change, and explain why that is so.

To do that, we must first understand the history of abortion, and what the status of abortion as a medical procedure was in the United States in 1973, when Roe was decided.

Of course abortion is nothing new. Some of the oldest medical texts and treatments involve abortion. So abortion has been around just a slightly shorter time than pregnancy, to make a point. And during all those eons, almost all major societies either outlawed abortion, limited it to certain hard cases (e.g., prostitutes, rape victims, women too ill to carry a child to term) or severely frowned upon it. Certainly once Christianity entered the scene, all Christian societies outlawed it. Yet it continued in the shadows. Which reminds us there is a difference between what we dislike or criminalize, and what people do.

In 1967, Colorado decriminalized some forms of abortion, and by 1973 sixteen US states had rules permitting abortion under some circumstances. That is when the US Supreme Court heard the legendary Roe v. Wade case, and held that a Texas law criminalizing abortion was wholly unconstitutional. With that broad ruling, the laws in thirty-four other states were singularly swept aside, and with it even some of the restrictions in the sixteen states which had permitted abortion.

In the place of the slowly changing public mores, the Supreme Court presented an absolute personal right to abortion (based on the right to privacy), and balanced this new right against the interests of the States by providing a trimester policy: in effect, earlier in the pregnancy, the pregnant mother should decide, later in the pregnancy, the State could intervene. This ruling seemed congruent with medical science at the time, which admitted the fetus was of course going to be a person, but could not answer definitively when (other than birth) that person-hood began.

The problems with Roe are several. First, it was overly broad, as already noted. The Supreme Court usually tries to limit the extent and effect of its rulings, but here it emphatically extended and amplified them. Second, the profound change Roe envisioned generated a unique resistance that only grew over time. And third, the pseudo-scientific trimester approach (which seemed so logical) was entirely at the mercy of scientific and medical advances, which would greatly undermine it.

Who am I to call Roe “overly broad?” Nobody. How about Ruth Bader Ginsburg; would her opinion matter? Nobody would dream of calling into question her support for a woman’s right to choose. But when asked about Roe v. Wade, she said “Doctrinal limbs too swiftly shaped may prove unstable.” She went on to criticize the ruling–not its outcome, but the way it was decided–as so sweeping as to be vulnerable to being overturned by future courts for the contention it caused. To be clear, she sought a broader, deeper basis for the right to abortion, not its end. But being the insightful jurist she was, she could not fail to point out Roe’s weak reasoning.

Nor can anyone doubt that Roe unintentionally birthed the pro-life movement, which has only grown over time. Despite little or disparaging coverage in national media, pro-life groups organized crisis pregnancy clinics, prayer vigils, fasts, rallies, and the largest annual protest march in Washington, DC. All this happened despite a series of rulings stigmatizing or even criminalizing their behavior. The pro-life movement is the longest, most successful protest movement in the history of the nation.

Both the pro-choice and pro-life movements enjoy citing strong polling data indicating large majorities of Americans support their cause. How can this be? First off, abortion was the test case among pollsters for how to word and stage questions to elicit results. Ask “do you think rape victims should be forced to carry an attacker’s child to term?” or “should anyone be able to have an abortion for any reason even at the very end of a pregnancy?” and you get predictable results. And most Americans don’t understand the nuances of what Roe held, how it has changed over time, and what role the States still play. Public opinion does not provide a solid basis for determining a way forward.

Finally, scientific advances and improved neonatal care led to pictures worth more than a thousand words. Talk all you want about a fetus or a “potential person,” once the pro-life movement could show high-definition images of a thumb-sucking little person (not to mention the gruesome results of rare, late-stage abortions), the other euphemisms fell cold. These images, and the gradual extension of earliest preemie survival undermined Roe’s trimester approach. It is worthwhile here to mention how quietly pro-life the medical community has always been. While a few outspoken activists carry the headlines, the greatest limiting factor to abortion availability has always been the number of doctors and nurses who refuse to employ the procedure; even most hospitals avoid teaching it. While some claim this is because of the perceived threat of pro-life violence, the medical establishment’s resistance goes back to the beginning, long before Roe came into effect. There was little doubt there what the fetus was, and what an abortion represented.

The combination of Roe’s sweeping effect, its persistent resistance, and the changing scientific and medical environment played out in unforeseen ways. Roe and its companion Doe v. Bolton case added the concept of a pregnant woman’s “mental health” to the list of possible legal justifications for abortion; subsequent cases expanded the list to include financial and “family” interests. That resulted in the US having one of the most permissive abortion regimes in the world. While the laws vary by state, the most liberal states can and have legalized abortion for any reason at any time. I am not saying abortions happen moments before birth; just that Roe and some state laws would permit it. Most of the so-called liberal nations of Europe severely restrict abortion after twelve weeks; only North Korea and China have fewer restrictions than Roe does.

Since much of the initial opposition to Roe came from religious groups, pro-choice organizations counterattacked by claiming that the Constitution required a separation of Church and State. This charge failed in the courts, which require all policies to be adjudicated on their merits, not on who proposes them. After all, many of our laws stem from religious rules (e.g., “Thou shall not kill.”) and it was only a decade before Roe that religious leaders were lionized for their leadership in the civil rights movement. Note that the growth of the pro-life movement in younger generations has happened at the same time society overall–and younger people in particular–has become less religious. It won’t go away.

Finally, and most importantly in my opinion, the pro-life movement tirelessly submitted legals challenges to Roe, constantly pressuring the courts on the obvious logical fallacies, the detrimental effects on the democratic process, and the changing medical environment. Various members of the Supreme Court were loathe to jettison Roe altogether, and their compromises only further weakened Roe’s basis in law. The final straw was the recent Texas law which is currently before the Supreme Court. This law avoids judicial scrutiny by not using the State to enforce its provisions, but rather deputizing anyone (literally) to sue a doctor or clinic (or others, but never the pregnant woman) for supporting or performing an abortion. The threat of unlimited civil fines of $10k USD has had a truly chilling effect on abortion rates in Texas.

Despite being pro-life, I don’t support the Texas law, and I hope the court invalidates it. This law if replicated could choke the judicial system with similar case involving gun owners, voting rights, and a host of other policies. But the exercise demonstrates how far the pro-life movement is willing to go.

Most likely, the Supreme Court will invalidate the Texas statute. But it will also hear a case in December from Mississippi (Dobbs v. Jackson Women’s Health Organization) which directly calls for overturning Roe. I believe the Court will do so, to send the matter back to the States and end the federalization engendered by Roe’s privacy right. Some states have trigger laws, either banning abortion or re-instituting Roe. The nation has lived with different laws in different states for drinking, driving, gun-owning, voting, age-of-consent, marriage and divorce, and many other life-and-death matters. Abortion access will become one more.

Ending Roe will not end abortion, either legally or in fact. What it would do is take a hot-button issue off the national stage and send it to the states for local decision. After almost fifty years of increasingly tortured legal rulings, ridiculous charges and counter-charges (on both sides), and entrenched partisanship, that’s good enough.