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.