The Legacy of Roe and How We Got Here
In 1973, the Supreme Court of the United States contrived a new Constitutional right—the fundamental right to abortion. Fast forward to December 2021 and the Supreme Court agreed to hear oral arguments for the most significant abortion case today. The reason that Dobbs v. Jackson Women’s Health is so significant is that the Court has agreed to answer the question: Are all state laws that prohibit abortion before viability unconstitutional? If the Court answers the question with a “no,” it will strike at the very core of Roe v Wade. After hearing the oral arguments on December first, the Court is expected to announce its decision in June 2022.
In a series of articles, we will seek to answers a few questions on the topic of abortion in America. First, what is the legacy of Roe and how did we get to the point we are today? In this case (Dobbs v. Jackson), should the Court’s precedent be upheld? If the Court rules in favor of the Mississippi law, what could this mean for Roe v. Wade? What can Christians do at such a time as this? Over the next few weeks, we will seek to answer these questions from a Constitutional and Biblical perspective.
In a nutshell, the legacy of Roe is nearly 60 million dead babies since its passing in 1973. The first question we should ask when looking at the legacy of Roe is . . . well . . . how did we get here? How did we get to the place where abortion is considered, not just a necessary evil, but a fundamental, constitutional right? How did we get to the place where, every time the Court looks at an abortion case, it is within the framework of abortion as a Constitutional right?
In Roe v. Wade, the Court ruled that states could not prohibit abortions in the first trimester and that they could only regulate abortions in the second and third trimester as long as those regulations were “reasonably related to maternal health.” Before Roe, abortion laws were left completely up to the people of the individual states. In Roe v. Wade, the Supreme Court overruled 46 state laws based upon the argument that these laws, made in the nineteenth century, were archaic and failed to conform to evolving societal standards. This restriction on state laws was based on the Court’s previously contrived “right to privacy” supposedly found in the Fourteenth Amendment. Justice Blakmun, who had formerly worked in a Minnesota clinic that provided abortions and wrote the Court’s opinion, admitted, “The Constitution does not explicitly mention any right of privacy. In a line of decisions however . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[Emphasis added] Basically, the Court overturned the state law simply because the Court did not like them. The Court then pieced together “principles” from numerous constitutional Amendments to find justification for its decision. So, the Roe decision was not based on the will of the Constitution itself; it was based on the whim of the Court.
Not only did the Roe decision make abortion a constitutional right, but it also made abortion a fundamental constitutional right. The Court’s Roe decision gave abortion an extra layer of protection through a doctrine called “substantive due process.” This is the idea that some constitutional rights are so fundamental (or substantive), that no measure of legal process may justify the state depriving a citizen of those rights in any way. By applying the doctrine of substantive due process to abortion, the Court made it even more difficult for states to restrict abortion in any significant way. A state would have to prove “compelling interest” in protecting the life of the fetus or maternal health before it could restrict abortion pre-viability. This is the reason that abortion activists have sought to challenge state laws, like Texas’ heartbeat bill and this Mississippi law. Such laws seek to regulate or prohibit abortion before the age of viability.
In Roe’s companion case, Doe v. Bolton, the Court ruled that a doctor may perform an abortion after the first trimester when it is necessary for the health of the mother. The Court then expanded the definition of “health” to include “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” Together, Roe and Doe, in practical terms, legalized abortion-on-demand throughout all nine months of pregnancy nationwide.
Affirming Roe, the Court’s decision in Planned Parenthood v. Casey (1992) imposed a new standard to determine the validity of a law restricting abortion: the undue burden test. This means that an abortion law cannot impose an “undue burden” on a woman seeking an abortion. An “undue burden” is defined as “a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” This adds just another layer of protection for abortion against state regulations.
In brief, let’s consider the significance of these three cases. Roe did three significant things when it comes to abortion. First, it made abortion a constitutional right. Second, it made abortion a fundamental (ultra-protected) constitutional right. Third, it made viability the standard by which state laws would be judged either constitutional or unconstitutional. (Viability refers the baby’s ability to survive outside the womb, which is usually considered to be around 24 weeks. The viability standard is an extremely subjective standard. As modern technology advances, the age of viability changes. Today, babies as early as 20 weeks have been able to survive outside the womb.) Doe made it possible to get an abortion for practically any reason by broadening the definition of “health.” And Casey created the latest standard by which state laws are judged—the “undue burden test.” These three cases (Roe, Doe, and Casey) conspired to make abortion a fundamentally protected, constitutional right that can be chosen for practically any reason at practically any time during pregnancy. Therefore, whenever the Court has looked at an abortion case, it has always been within this framework of abortion as a constitutional right.
Now, the Court has a prime opportunity to reconsider Roe’s legacy. Ironically, while the Roe and Doe decisions have allowed for the killing of 60 million other babies, the women whose names were used in these cases did not kill their own unborn children. Roe (Norma McCorvey) decided to give birth to and put her child up for adoption and Doe (Sandra Cano) never sought an abortion. Both women later regretted their involvement in the cases and came out against the Court’s decisions. They were not proud of the legacy Roe left and neither should the Court be. Neither should the American people be.
So, how did we get to this point where abortion is an ultra-protected right? We got here by allowing the Court to contrive new rights that have no basis in the Constitution. As pro-life Christians, we can be confident in pushing back against Roe because we have not only morality, but also legality on our side. Next time, we will delve more into the legality of the Roe decision and whether or not the Court should uphold its own precedent.