Does Roe v. Wade have a future?

Published 7:14 pm Tuesday, June 4, 2019


Contributing columnist

Roe v. Wade has always been controversial, but the water is getting even hotter. There is a permanent injunction against Kentucky’s recent abortion ban after 15 weeks of pregnancy, but the list of banning states is growing, with Missouri the latest addition.

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The ultimate goal of the “pro-life” protesters seems to be to reverse the famous (or infamous) 1973 Supreme Court decision. Sensing the possible jeopardy of the decision in light of the new balance of power in the Supreme Court, defenders are also mobilizing.    

In Washington, Democratic leaders are taking names on both sides of the aisle of those who will defend the legality of that decision. Recruiting calls are going out for Roe Rallies. The issue is looming large in election campaigns. What is ahead for Roe v. Wade? 

Recent statistics from the Public Religion Research Institute are relevant:

• 59% of Americans believe that abortion should be legal in all or most cases.

• 37% believe it should be illegal in all or most cases.

• 56% of Americans believe that Roe v. Wade was rightly decided.

• 33% believe it should be overturned.

Other recent polls have found that 71% of Americans oppose overturning Roe v. Wade and that six in 10 Catholics support it.

Concerning abortion bans as extreme as the ones adopted in Alabama and Missouri, 14% agree that abortion should be illegal in all cases. Less than three in 10 white evangelicals believe that. 

73% of Democrats support Roe v. Wade, and 21% of them believe it was wrongly decided. 52% of Republicans believe it was wrongly decided while 34% support it. Roughly equal percentages of the two parties (47% to 40%) assign priority to the issue. Only one in five Republicans believe abortion should be illegal in all cases.    

Some historical perspective is in order. Two Supreme Court decisions laid the groundwork for the landmark case. In Griswold v. Connecticut (1965), the court overturned a state law prohibiting the prescription or use of contraceptives, based on the “constitutional right to privacy.”

In the second case, Einstadt v. Baird (1972), the court declared unconstitutional a Massachusetts statute prohibiting the distribution of contraceptives to unmarried persons. Again, the right to privacy was the basis.

After numerous challenges to state abortion laws in the mid-1960s, Roe v. Wade (1973) became the foundation for federal policy. The Court ruled (7-2) that a 22-year-old woman had her constitutional right to privacy, protected by the Due Process Clause of the Fourteenth Amendment, abridged by the restrictive Texas statute.

The Court did not attempt to answer the question of when the fetus becomes a person, but it did affirm two important interests of the State — protection of the health of the pregnant woman; and protection of the potentiality of human life. In the language of the decision, “Each grows in sustainability as the woman approaches term and at a point during pregnancy, each becomes compelling.”

For the stage prior to approximately the end of the first trimester, the decision to abort must be left to the attending physician. After this period, with the increased risk of medical complications, the state, in promoting its interest in the mother’s health, may regulate the procedure in ways that “are reasonably related to maternal health.”

During the last 10 weeks, the fetus is considered viable. Both due to its “interests in the potentiality of human life” and in “the preservation of the life and health of the mother,” the state may “regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Decisions in 1989 and 1992 reaffirmed abortion rights but gave greater latitude to states for regulating and restricting.

Along with most Americans, Roe v. Wade stands between an absolute right to life of a fetus from the moment of conception and an absolute right of a woman to choose abortion until the moment of birth.  It assumes that, whenever human life is said to begin, a human fetus is not yet a person, but that it gains a growing claim to protection as it nears personhood, which involves membership in a legal or moral community. With viability, the development of the human life in the uterus reaches a new stage in its assumption of personhood with the attendant dignity and respect of community membership.

This personhood position is clearly a departure from the creationist argument that God creates a new soul for every person at the moment of conception.

(This claim seems at odds with the fact that a clear differentiation of an individual human life occurs only with the appearance of a primitive streak between the second and third week of gestation. At that time undifferentiated cells, not yet assigned to parts of the body, begin to differentiate, a nervous system forms, and twinning is no longer possible.)

If the use of artificial means of birth control cannot be criminalized, some other point in fetal development is stipulated for the ban to begin — six weeks or eight weeks in the laws of Alabama and Missouri. Whether it is detection of a fetal heartbeat or a number of weeks, some point of illegality is fixed by Roe opponents due to the determination that human life is now present.  Even if the pregnancy is the result of rape or incest, only jeopardy to the mother’s life excuses an abortion.

Pro-choice supporters have opposed the series of state laws permitted by several Supreme Court decisions that have placed various barriers in the way of a woman’s right to control of her body and have access to abortion as part of her health care.

If you simply look at the protest signs, you might think that the pro-choice position, like the pro-life position, adheres to an ethical absolute (in this case, the woman’s right to control her own body and its reproductive processes). 

In fact, many pro-choice arguments are more complex than that.  The woman’s right to bodily self-determination is central, but the value of the fetus is not overlooked. Neither is the moral ambiguity in actual abortions denied or the idea that abortion is just another form of birth control affirmed. That recognition of complexity is certainly needed. 

Choice advocates are invested in Roe v. Wade because, in the final analysis, it resists allowing the state or any religious authority to take the ultimate decision away from the pregnant woman. As matters now stand, most Americans agree. Roe v. Wade still has a pulse.

Eric Mount is the Nelson D. and Mary McDowell Rodes Professor Emeritus of Religion at Centre College.