Roe and abortion on demand
Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality. – Chief Justice William Rehnquist
It’s a bit disconcerting to realize that technically one person can decide for all the American citizenry whether or not a law is constitutional. Though Roe v. Wade was a 7-2 decision, many landmark Supreme Court cases have been decided on a 5-4 split, meaning that literally one justice’s interpretation of the law determined whether or not a legal right or prohibition was allowable under our constitution. The fact that half of his or her fellow justices interpreted it differently demonstrates the indeterminacy of much of what is said to be the law of the land.
This of course means that in subsequent, related cases with a different group of justices, alternate interpretations of constitutionality are likely. This appears to be the case with Roe such that though it is still respected as a precedent, it has been so altered by a number of later abortion-related cases as to render it “a mere facade” in the opinion of Justice Rehnquist, as quoted above from Francis J. Beckwith’s book Politically Correct Death: Answering Arguments for Abortion Rights. (1)
I’m in Chapter 2 of Beckwith’s book which he has titled, “Why Abortion on Demand is Legal in America.” Many Americans mistakenly have believed that the Supreme Court legalized abortion only through the second trimester of pregnancy or up until viability unless the mother’s life was in danger. This has lead to false claims in the media and the public square perpetuating the myth that the court did not sanction abortion for virtually any reason up to the point of birth.
But though the Roe v. Wade decision may have on the surface seemed to limit legal abortions to non-viable fetuses and threats to the mother’s life, it effectually did not. Even Chief Justice Warren Burger, who sided with the majority in Roe, revealed in his dissent in a later abortion case that his interpretation of the decision was not accurate. The key provision unlocking abortion on demand is the court’s determination that not only the mother’s life but her health is an allowable consideration for intentionally taking the life of her unborn child. And crucial for understanding the scope of what the court meant by “health” is the companion abortion case Doe v. Bolton decided the same year (1973) as Roe v. Wade, which many are unfamiliar with. In Bolton, the court said that health must be defined “in light of all factors – physical, emotional, psychological, familial, and the woman’s age – relative to the well-being of the patient. All these factors relate to health.”
Beckwith cites a number of legal scholars concluding that the court’s decisions allow for abortion on demand, as well as the U.S. Senate Judiciary Committee in their report on the Human Life Bill in 1981:
Since there is nothing to stop an abortionist from certifying that a third-trimester abortion is beneficial to the health of the mother – in this broad sense – the Supreme Court’s decision has in fact made abortion available on demand throughout the prenatal life of the child, from conception to birth.
Yet even today, 38 years later than the Senate’s report, you hear people falsely claiming that late-term abortions are only allowed if the mother’s life is in danger. But according to the pro-choice Guttmacher Institute, that’s not even the primary reason women get them.
Most women seeking later abortion fit at least one of five profiles: They were raising children alone, were depressed or using illicit substances, were in conflict with a male partner or experiencing domestic violence, had trouble deciding and then had access problems, or were young and nulliparous.
(Nulliparous means never having given birth – had to look that one up.)
So, as Beckwith says, “it is safe to say that in the first six months of pregnancy a woman can have an abortion for no reason, but in the last three months she can have it for any reason.”
This has been the reality ever since Roe was decided, so we can confidently expect that one or more of the recent state legislative decisions severely restricting abortion to before a heartbeat is detected, or even earlier, will be challenged all the way to the Supreme Court in the near future. But though Roe is still in effect, it is a “gutted decision,” according to Beckwith, because of several subsequent landmark abortion cases, which would seem to make it vulnerable to overturning…like “a storefront on a western movie set.” I’ll talk about those next time.
1. Francis J. Beckwith, Politically Correct Death: Answering Arguments for Abortion Rights (Grand Rapids: Baker Books, 1993)