This week my twitter feed was full of optimism surrounding the prospect that the court would finally repeal Roe v. Wade. The news of Supreme Court Justice Anthony Kennedy retiring brought on this optimism. Even though I welcome the illegality of abortion, my legal knowledge, and general cynicism keep me from sharing in the optimism of my fellow Catholic followers. Rather I believe my fellow Christians and I must do a better job of changing the court of public opinion rather than being content with changing the legal landscape. To understand why one must look at 1. the historical landscape before Roe v. Wade, 2. Legal precedent up to the present, and 3. the consequences of overturning Roe v. Wade.
Abortion before Roe v. Wade
The legality of Abortion ebbed and flowed. In the early period of American history, when legal jurisprudence was governed by common law, abortion procedures were legal up to the point of “quicking.1 In the mid-1800 Massachusetts became the first state to introduce legislation making it illegal to get an abortion. 1 By 1960s 44 states had followed suit although some would make an exception if the mother’s life was endangered. 1 In 1967 Colorado became the first state to amend their abortion laws to allow an exception in case of rape, incest, life endangerment, woman’s health or the baby had a severe defect. 1 In 1972, one year before Roe case, 17 states had introduced legislation making abortion legal in some capacity. 1
There are two different narratives that emerge out of this historical perusal into American abortion legislation. The first is from a pro-life perspective in which abortion had always been criminal prior to Roe v. Wade either outright illegal or after a certain point such as ‘quicking.’ The legality of abortion is a modern trend. The second narrative is from a pro-choice perspective in which the legality of abortion from 1967 onward reflects a change in public opinion. This point will play an important role when discussing Roe v. Wade.
Roe v. Wade
Abortion as a Fundamental Right
The issue addressed by the court is whether the right for women to terminate her pregnancy is protected as the right to privacy located in the fourteenth amendment’s due process clause. In order to address this issue, the court must first determine if the right is implicit to the concept of ordered liberty. This is usually determined by asking the question is the right deeply rooted in American history or traditions. As we discussed above, the answer is not so straightforward. At certain periods in American history, abortion had been legal and at other times illegal. How you view the history largely depends on whether you are pro-life or pro-choice. A majority of the court concluded that “restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage.”2 Thus a fundamental right exists.
Possible state interest
Having established a fundamental right, the court goes on to determine possible state interests. A state may still restrict a fundamental right if it has a compelling interest to do so. The court address two possible interest: 1. protecting the women from a dangerous medical procedure, and 2. Protecting prenatal life.2 In regards to the former, the court said the current medical knowledge makes abortions performed in the early trimester safe for women.2 Addressing protecting prenatal life, the court stated that “protection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.” Hence a state’s interest only becomes compelling at the point of viability.2 Abortion as a fundamental right will be defended in the case of Planned Parenthood v. Casey.
Planned Parenthood v. Casey
Justice Kennedy was one of the three justices to write the deciding opinion of Planned Parenthood v. Casey and it is his vote that led to the reaffirming of Roe v. Wade. The principle of stare decisis, or the idea that a court must follow the decisions that came before the case in question led the court to uphold the ruling. The court in Planned Parenthood v. Casey states, “Application of the doctrine of stare decisis confirms that Roe’s essential holding should be reaffirmed”.3
In reexamining that holding, the Court’s judgment is informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling the holding with the idea of the rule of law, and to gauge the respective costs of reaffirming and overruling.”3 The important thing to note is that the court deliberately chose not to in this case.
Undue Burden Standard
The court goes on to say that changes in the understanding of when a fetus is viable do not change the fact that states interest only becomes compelling at viability.3 The court also states that weakened precedent has not been shown. However, in order to accommodate the state’s interest in potential life, the court will introduce the undue burden standard.3 “An undue burden exists, and therefore a provision of law is invalid if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”3
Ways the Court Could Overturn Abortion Jurisprudence
There are two questions that govern the legal landscape of abortion: is the right to terminate your pregnancy a fundamental right, and is the legal restriction an undue burden on the women’s access to abortion? A conservative court could address both, most likely it will seek to limit abortion by upholding laws restricting abortion access.
Reasons The Court Will Not Address The Fundamental Rights Question
I do not see the court re-addressing the fundamental right question for two reasons. The first reason has to do with the fact that the question regarding a fundamental right depends on whether it is rooted in the traditions and conscience of our people. The reality is that the general consciousness of the people is more accepting, not less. According to Pew Research Center, “Though abortion is a divisive issue, more than half of U.S. adults take a non-absolutist position, saying that in most — but not all — cases, abortion should be legal.”
Furthermore, the issue has already been decided. Stare decisis requires the court to uphold it’s prior ruling unless the ruling is unworkable or there exists significant societal changes.4 Kurt Lash’s insightful journal article chronologies the history of stare decisis as applied by the court from Casey and onward. He describes how stare decisis is often applied due to pragmatic concerns. When ruling on constitution decisions there is no remedy for judicial error other than a constitutional amendment and therefore courts applying stare decisis will also discuss the cost of judicial error.5 This can be seen in Casey, where the courts interpreted Roe’s judicial error as minimal and the cost to equal rights for women as very high.5 My argument is that nothing in society has changed to make the cost of repealing Roe less high.
Attacking the Undue Burden Standard
Thus the courts will have more success in upholding legal restrictions on abortion. An example can already be seen when the court upheld the validity of the ban on partial-birth abortion despite the legislation providing no exemption for the health of the mother. The court rationalized that a ban on intact D&E’s (procedure where baby’s head is partially birthed and then crushed) did not threaten the health of the mother because standard D&E procedures are available.
Consequences of Roe v. Wade repeal
If the court does manage to repeal Roe v Wade, I don’t think it will drastically change the abortion industry sadly. A repeal of Roe would mean that the states would now be free to define the legality of abortion. The decision would make a difference in pro-life states like Texas; however, I imagine that most states would allow abortion to remain legal due to the perceived hopelessness regarding the women’s situation.
Failure to Support Women
The pro-life movement has done a good job of defending life at conception; it has not defended the women, who are stuck with the pregnancies. Most women instinctively know that a fetus is living. When I worked at a pro-life pregnancy center, I was taught that if a woman ever said that she could never give her baby up for adoption, we were to question her about why if she chooses to carries it to term that it becomes a baby. Similarly, I learned that most women turn to abortion due to hopelessness. They believe that they have nowhere else to turn. As Christians, we have an answer to hopelessness. Jesus through the power of the gospel gives us hope and we are supposed to share this hope and love with others, who are hopeless and marginalized. We need to implement policies helping pregnant women.
Practical Solutions to Help End Abortion
If we truly want to end abortion, we need to stop picketing planned parenthood and start volunteering at pregnancy centers. We need to write our state legislators to support easier adoption policies, better foster care, and free childcare for low-income families and students. Support unemployment benefits for pregnant women, who are let go, and incentives for employers to hire pregnant women and paid maternity leave. Churches and Christian families need to stop shunning women, who are pregnant out of wedlock (yes, it’s a sin, but abortion is so much worse). However, if we continue to do nothing and society still believes that pregnancy holds women back then it won’t matter what the judicial courts do because we have failed to support pregnant women and we have failed to change the court of public opinion.
- Gold,, Rachel. “Lessons From Before Roe: Will Past Be Prologue?”. Guttmacher Institute, 2018, https://www.guttmacher.org/gpr/2003/03/lessons-roe-will-past-be-prologue. Accessed 2 July 2018. ↩ ↩ ↩ ↩ ↩
- ROE v. WADE 410 US 113. Supreme Court of the United States. 1971. ” Findlaw, 2018, https://caselaw.findlaw.com/us-supreme-court/410/113.html. ↩ ↩ ↩ ↩
- Planned Parenthood v. Casey 505 US 833. Supreme Court of the United States.1992 Findlaw, 2018, https://caselaw.findlaw.com/us-supreme-court/505/833.html ↩ ↩ ↩ ↩ ↩
- Oyen, Timothy. “Stare Decisis”. LII / Legal Information Institute, 2018, https://www.law.cornell.edu/wex/stare_decisis. Accessed 2 July 2018. ↩
- Lash, Kurt. “The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory”. Notre Dame Law Review, vol 89, no. 5, 2014, pp. 2189-2218., https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=4561&context=ndlr. Accessed 2 July 2018. ↩ ↩