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Abortion History 101

Understanding the 'Right to Choose' on the 37th Anniversary of Roe v. Wade

by Margaret Datiles 

Thirty-seven years ago, the U.S. Supreme Court handed down a decision that wiped out the abortion laws of all 50 states, dramatically altering the landscape of U.S. abortion jurisprudence. Roe v. Wade has become a household name, in accord with its monumental impact on our nation’s laws and culture.

Anyone who attends the 2010 March for Life in Washington, D.C. this Friday will hear chants of “Overturn Roe v. Wade!” and see countless signs with the same message.  However, there will be many participants at the March for Life who had never read the Roe v. Wade opinion, and who do not know what would really happen if Roe were reversed.

So, what did the Roe v. Wade opinion say?  Where did the “right to choose” come from, and what exactly does it mean?  What would happen if Roe were overturned?  And, what effect does the March for Life have on an eventual reversal of Roe? 

These are all very good questions that many pro-lifers have. To start, a brief review of a few key U.S. Supreme Court cases is in order: 

Griswold v. Connecticut (1965):  

In this case, the U.S. Supreme Court established that married couples have a right to choose whether or not to use contraceptives.  This right emanates from the “right to privacy.”  There is no right to privacy mentioned anywhere in the Constitution.  However, the Court claimed that the right to privacy can be found in “penumbras,” or shadows, of different constitutional guarantees, such as the Due Process Clause of the Fourteenth Amendment.  The Court stated: “Various guarantees create zones of privacy.”

Eisenstadt v. Baird (1972): 

The U.S. Supreme Court expanded and re-characterized the right created by Griswold v. Connecticut.  Here, the right to contraception was re-characterized from being a right of married couples to an individual right.  Importantly, the Court stated: “If the right to privacy means anything, it is the right of an individual, married or single…[to make] the decision whether to bear or beget a child.”  As the decision “to bear or beget a child” could be made before or after conception (i.e., it could be interpreted as applying to both the contraception and abortion decision), the Court’s terminology in Eisenstadt set the stage for the holding of Roe v. Wade.

Doe v. Bolton (1973): 

The companion case to Roe v. Wade, this case set forth the broad definition of “maternal health” applied in Roe: [T]he medical judgment may be exercised in light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient.  All these factors may relate to health.”

Roe v. Wade (1973): 

The U.S. Supreme Court further expanded the right to privacy to include a federal right under the Fourteenth Amendment of a woman to choose “whether or not to terminate her pregnancy.”  This decision also held that an unborn child is not a “person” under the Fourteenth Amendment.

Roe set up the “trimester framework” for determining when abortion is legal.  During the first trimester of pregnancy, the state may not outlaw abortions.  During the second and third trimesters, abortions may be regulated.  However, exceptions must be made for “maternal health” reasons.  Applying Doe v. Bolton’s all-encompassing definition of “maternal health,” abortion could be legally performed during the second and third trimester for any reason whatsoever. 

Since abortions could not be regulated during the first trimester, and the “maternal health” exception allowed abortion for any reason whatsoever during the second and third trimesters, Roe established a nationwide policy of abortion-on-demand throughout all stages of pregnancy.  

By creating a federal right to abortion and establishing the overly-broad “maternal health” exception, Roe overturned all the state abortion laws in the nation.  It made abortion an issue governed on the federal level, rather than on the state level. Before Roe, abortion law was up to each individual state.  Roe made the U.S. Supreme Court and the federal courts the sole authority on abortion law.

Planned Parenthood v. Casey (1992): 

In this case, the U.S. Supreme Court reaffirmed the essential holdings of Roe and replaced the trimester framework with a structure based on viability.  Pre-viability, the state could not prohibit an abortion if such a prohibition was an “undue burden” on the woman’s right to choose abortion.  Post-viability, abortion may be regulated, but is allowed for “maternal health.”

The Court did not provide a meaningful definition of “undue burden,” and it did not alter Doe’s definition of “maternal health.”  In addition, the Court stated that women’s dependence on abortion to live the kind of social life they desire is a factor which can determine (1) whether an abortion law is an “undue burden” or (2) whether abortion is necessary for “maternal health.” 

So, abortion remained effectively available upon demand throughout all stages of pregnancy, both before and after viability.

Stenberg v. Carhart (2000):

The decisions of Roe and Casey were reaffirmed in this case. Here, the Court’s decision invalidated the partial-birth abortion bans of 30 states.  It ruled that all abortion laws must have a broad “maternal health” exception that must be applied both pre-viability and post-viability.  At this point, the “maternal health” exception swelled to its largest since before Casey.

Gonzales v. Carhart (2007): 

This case upheld the constitutionality of the Federal Partial Birth Abortion Ban Act of 2003.  It established that an abortion procedure may be banned without a broad maternal health exception when safe alternative procedures exist and the banned procedure is not medically necessary.  The ever-growing “maternal health” exception was narrowed slightly by the Court’s emphasis on physical “significant health risks,” as opposed to social and emotional factors.  Although the ruling was successful in overturning Stenberg v. Carhart, the essential holdings of Casey remain in place.

 

In short, the “right to choose” originated from a “right to privacy” which is nowhere in the Constitution itself, but supposedly can be found in its “penumbras.” After various decisions by the U.S. Supreme Court stretched and expanded the right to privacy and the “maternal health” exception, we get what we have today: abortion-on-demand at all stages of pregnancy.

If Roe were reversed today, abortion would become an issue governed on a state-by-state basis, rather than on the federal level.  Each state would once again have the ability to decide on the abortion issue for themselves, and citizens would be given more direct access to participate in and influence such decisions.  This new situation would be very much in line with the Catholic principle of subsidiarity, which states that, when possible, policies and decisions should be made at the local level.

However, if Roe were overturned, abortion would be legal in at least 41 states (if not all 50).  This is because, after Roe, many states took their old abortion laws off the books.  In addition, some state supreme courts handed down their own state-level versions of Roe.  The pro-life movement would have to work very hard in each state to establish policies to protect the unborn.

The March for Life plays a crucial role in an eventual reversal of Roe and the return of the abortion issue to the states.  As most of the participants are under 30, the March impresses upon the youth the importance of standing up for the unborn.  It allows them to actively participate in the pro-life movement and enkindles in their hearts a desire to take action to protect the sanctity of life at all stages of development.  Indeed, it will be the future generations who will continue to keep the fight alive and eventually overturn Roe.  Lastly, the March for Life educates policy makers on the reality that the majority of Americans do not favor abortion and identify themselves as pro-life rather than pro-choice.

If you go to the March for Life this Friday, remember – although the March will not result in an immediate reversal of Roe and an end to abortion, your presence gives hope and encouragement to those who are fighting for life in the legislatures and courts.  Your presence at the March keeps the spirit of the pro-life movement alive and ensures the continuation of the fight for life for generations to come.

 

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(The views expressed in this column are those of the author and do not necessarily reflect the positions of Headline Bistro or the Knights of Columbus.)