Roe v. Wade at 40

Justice Harry Blackmun
Justice Harry Blackmun.

Today, January 22, 2013, is winding down as I type. It is the 40th anniversary of Roe v. Wade (1973), the Supreme Court’s 7-2 decision that declared abortion a constitutional right.

The decision once seemed, for all its outrages, at least young, fresh and daring. Now it feels middle-aged beyond its years. It has greyed, put on pounds, and become familiar–so as to breed contempt. It walks the halls of American minds like some long-time executive–always hanging around, present at nearly every meeting, making stale points backed by weak reasoning, yet invariably carrying the day. Linked to a vast network of powerful people, it knows how to throw its weight around.

And a kind of androgyny has set in. Roe when young was a woman’s ruling. It seemed to express women’s needs and interests. Now, long used by men for sexual leverage against women, Roe has taken on a mannish face.  A father who refuses responsibility for his unborn child can pressure the woman to abort without asking her to do anything illegal. We can hardly tell whom Roe favors, whom it helps.  The ruling shifted power from the unborn to the woman, but more than half that power has now passed into the hands of men. The math cannot be denied: this is a net loss for women.

What, exactly, did the Roe v Wade decision say? The Court divided pregnancy into three trimesters of three months each–that much was clear. But the division had little scientific justification. After fertilization, the sharpest line of demarcation in pregnancy comes at eight weeks, when the embryo, having acquired all the organs, attains the status of fetus. Nonetheless, the Court soldiered on with its arbitrary framework. It prohibited states from curtailing abortion in the first trimester. It permitted states to regulate abortion in the second trimester, but only for the sake of protecting the mother’s health. States could prohibit third-trimester abortions, but only so long as the woman’s life or health (including mental health) was not in danger. This new legal regime  swept away anti-abortion statutes in more than forty states and created virtual abortion-on-demand. Yet for years many Americans have believed that Roe  legalized only abortions in the first trimester.

The Court’s constitutional justification was that a right to abort lay within the Fourteenth Amendment’s guarantee of “liberty.” Justice Harry Blackmun, author of the majority opinion, argued that abortion had been a right under the English common law and in that form had been incorporated into our Constitution. The primitive, tendentious, and fragmentary scholarship on which Blackmun relied has since been exploded. It is now impossible to reasonably regard abortion as ever having been a common-law right folded into American constitutional rights. By 1868, when the Fourteenth Amendment was adopted, 27 of 37 states prohibited abortion throughout pregnancy. By 1910, every state had an anti-abortion statute on the books. If Americans considered abortion a constitutional right, and meant to include it in the Fourteenth Amendment, they had a strange way of showing it.

But does the Court’s bogus science and its shoddy legal history matter? Did they matter when Roe v. Wade was young? Do they matter now that Roe is old? Roe was appealing when young and is powerful now that it is old. Still, as the fabric of this day finally unravels, I cannot help but think that Roe is mortal, just like the rest of us. Maybe we’ll see you at 50, Roe, but maybe not.

6 responses to “Roe v. Wade at 40”

  1. Finally, an essay about abortion without all the inflammatory invective. While the end goal of RvW was abortion wasn’t part of the legal question the disparity over laws between states that did or did not permit abortion? Is there, 40 years on, a demographic breakdown of who availed themselves of abortions in that time? I wonder. Did the effects of the Great Society which cut poverty almost in half between 1965-1970 have any impact on suppressing illicit abortions, by taking some of the hardship out of raising a child (AFDC, formula and nutrition assistance and leading to head start, etc., etc.)

    Is it possible that the so-called entitlement programs so detested by Republicans, did, initially, make it more possible for a poor mother to see keeping her baby as a viable option. I think most historians looking backward would say that the income policies of welfare, had some impact on breaking up, particularly black families in Urban Ghettos, when it became possible for mother and children to survive without a father’s income in the home. That’s the social conservative narrative, at least, that government assistance induced women to have (more) children.

    Ireland will probably later this month, see only the 2nd piece of legislation since it’s founding in 1922, attempt to legalize abortion. The Catholic Church has had such control over Ireland, not only prohibiting contraception until 1973 (When it’s supreme court labeled that ban unconstitutional) but censoring all media and the arts and even implying pressure to censor any debate of the legislature in it’s perfectly Jansenist way. But now in the aftershock of Chuch sex abuse, the moral authority of the Church in Ireland is quite diminished and so this begets the first attempt to introduce legislation about abortion in almost the same 40 year window since R v. Wade.

    • I wasn’t going to be a baby machine to sifsaty some other peoples’ needs. I wasn’t going to let MY child be taken away and be raised for the next 18 years by some strangers I knew for a few months. I had an abortion and I know where my son is right now and I know he’s safe. But with adoption I wouldn’t even know his name.Adoption isn’t just adoption. Adoption is HARDER than having an abortion. If you think adoption is no big deal and that it’s so easy, then how about you carry a baby for 9 months and then hand it over to some random friendly couple and never see him again? Then come back here and tell us how easy it was.And it doesn’t matter if you think the fetus is just cells or a baby , it turns into the same thing, and if I can’t keep him then nobody can.And that’s right, I rather kill a fetus than to let him be born and taken away from me. I might seem selfish but the adoption industry is even more selfish.

      • Adoption IS a big deal and it IS difficult for the birth-mother. There are no easy options when a child is conceived out of wedlock and the mother lacks the support of a husband and father. Adoption is not a perfect solution but it does preserve the life of the child. Adoptions today can be “open,” allowing the birth mother to keep up with the child’s life. This takes some of the sting out of her loss.

  2. This is a very informative article. I once picked at an anthropology instructor who remarked that a “female’s primary goal (contribution) would be procreation and once they become unable to procreate their functionary usefulness would be over with.” (He did not mean it as it sounded, and of course the class knew that–but what a picking opportunity!) This was compared to a male’s life contribution which would continue until he dies. Of course I am referring to the times of the “humanoid.”
    Since procreation of life is a 50/50 contribution in most cases, I feel that men should have always played an active part, but this is not always the case for various reasons. Each case has to stand on its own merits. Then there are other issues of morality and the emotional ability of people to be parents. Just because a man or woman can become a parent, doesn’t necessary make them such, but just part of a biological fact. There is so much that one has to consider in making such decisions based on an highly emotional topic. Of course there are always unforeseen factors in everything whether it be abortion, adoption, or parent(s) raising a child.
    Michael O’Connor mentioned “Did the effects of the Great Society which cut poverty almost in half between 1965-1970 have any impact on suppressing illicit abortions, by taking some of the hardship out of raising a child (AFDC, formula and nutrition assistance and leading to head start, etc., etc.)” The Great Society in helping actual did more damage than good and in today’s society race is not an issue. It created a culture of young girls who have become women who learned to make a living off government social programs. I am not making this statement blind but from personal experience of actually meeting such women.
    I suppose what I am trying to say, there is no clear cut answer of correctness or morality in the situation of abortion. It is an “hot topic issue” that the political arena dances around “barefooted.” When the legislation and future legal challenges are made not everyone will be happy–Dr Joseph you made it clear that “The Court’s constitutional justification was that a right to abort lay within the Fourteenth Amendment’s guarantee of “liberty.” I personally think it is wonderful, but at what costs? Was the future cost considered in making this decision? This is another question that I have to ask, have we as a collective society allowed too many personal rights, too much liberty? To answer those questions, I think all emotion needs to be removed out of the equation. But in making that statement, I have to be what may sound contradictory — heavy prayer is needed for God to open up the right door, because he will probably judge the politicians pretty hard if the wrong door is opened.

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