The front page of the New York Times on January 23, 1973 was nothing if not eventful.
The country learned of two major events that morning: Former President Lyndon B. Johnson died from a heart attack and the U.S. Supreme Court ruled in favor of Jane Roe of Dallas County, Texas.
39 years ago today, on January 22, 1973, the Supreme Court in a 7-2 decision ruled that Texas’s criminal abortion statute, which made abortion illegal except “for the purpose of saving the life of a mother,” violated the Due Process Clause of the 14th Amendment, effectively legalizing abortion during the first trimester of a woman’s pregnancy.
In March 1970, Jane Roe argued the state’s abortion statute was “unconstitutionally vague” (two other complaints were filed along with Roe’s - from a physician and a married couple - but both were later dismissed).
Justice Harry Blackmun authored the Roe v. Wade opinion. While I urge you to read Roe v. Wade in its entirety if you haven’t, here are a few key points made by Blackmun:
Broader rights in earlier times: Blackmun wrote that abortion was a more acceptable practice during the adoption of the Constitution and throughout most of the 19th century compared to the time of the Roe v. Wade opinion.
”[…] a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.”
The abortion procedure is no longer dangerous: A common argument against abortion was that the procedure was too dangerous and placed a woman in danger. Therefore, state laws criminalizing abortion argued state regulation existed to protect a woman’s maternal health. The Roe v. Wade decision states modern medical techniques made abortions safer than they had been in the past, writing that abortions performed before the end of the first trimester are “relatively safe.” Therefore, Blackmun wrote, the state’s concern for protecting women from a dangerous medical procedure had “largely disappeared.”
The right to privacy includes a woman’s decision to terminate a pregnancy: Blackmun wrote that, although the right to privacy is not explicitly referenced in the Constitution, a multitude of previous decisions referencing a right to privacy made it “broad enough to encompass a woman’s decision on whether or not to terminate a pregnancy.” He writes that the state does indeed have a “compelling state interest” in regulating abortion - “safeguarding health, in maintaining medical standards, and in protecting potential life” - and that the right to privacy is not absolute. The decision rules that the state has a compelling interest at “viability” (24-28 weeks into the pregnancy) and can regulate abortion after the end of the first trimester “in ways that are reasonably related to maternal health”.
The Constitution does not recognize an unborn child as a person: The Court ruled that an unborn child is not a “person” under the Constitution, specifically the 14th Amendment.
“In short, the unborn have never been recognized in the law as persons in the whole sense.”
While they make this assertion, they explicitly write that they will not answer the question of whether or not life begins at conception.
The decision:“…for the period of pregnancy prior to this ‘compelling’ point [at approximately the end of the first trimester], the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. […]Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those ‘procured or attempted by medical advice for the purpose of saving the life of the mother,’ sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, ‘saving’ the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.”
The dissent: Justice Rehnquist wrote the dissenting opinion. He disagreed with the Court’s lack of restrictions on a woman during the first trimester of her pregnancy and argued that the right to privacy was not applicable in this case.
“Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not ‘private’ in the ordinary usage of that word. Nor is the ‘privacy’ that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution…”
Why choice still matters today:
Numerous states across the country have enacted laws just in the past year to restrict abortion services. From the Guttmacher Institute (including photo above):
Fully 68% of these new provisions, 92 provisions in 24 states, restrict access to abortion services, a striking increase from last year, when 26% of new provisions restricted abortion. The 92 new abortion restrictions shattered the previous record of 34 abortion restrictions adopted in 2005. About the only bright spot for reproductive rights supporters was the defeat in Mississippi of a ballot initiative that would have sharply restricted women’s access not only to abortion but also to various contraceptive methods by defining a person under state law as “a human being from the moment of fertilization.”
Today we are surrounded by GOP presidential hopefuls who wish to criminalize abortion, some even in the case of rape and incest.
- “The child did nothing wrong,” says Rick Santorum.
- Mitt Romney, 2002: “I will preserve and protect a woman’s right to choose, and am devoted and dedicated to honoring my word in that regard.”
- Mitt Romney today: ”My view is that the Supreme Court should reverse Roe v. Wade and send back to the states the responsibility for deciding whether they’re going to have abortion legal in their state or not.”
- Newt Gingrich says he’ll end “taxpayer subsidies for abortion by repealing Obamacare, defunding Planned Parenthood and reinstating the ‘Mexico City Policy’ which banned funding to organizations that promote and/or perform abortions overseas.” While Newt said earlier this year that he didn’t think life began until “implantation,” he changed his tune later to say he believes life begins at conception.
- Ron Paul, this week: “I see abortion as a violent act. All other violence is handled by the states — murder, burglary, violence. That’s a state issue.So don’t try to say that I’m less pro-life because I want to be particular about the way we do it and allow the states the prerogative.” His website clearly outlines his views: “Not even the most radical feminist would find it okay to tear apart a recently-born baby just because it is not wanted by its mother. All other considerations aside, the only reason many individuals can support abortion with a good conscience is because they believe it’s not murder… and that unborn babies do not count as human beings. Ron Paul has delivered more than 4,000 babies. He believes that human life starts at conception, and that casual elimination of the unborn leads to a careless attitude towards all life.”
I still find it a complete joke to assume that being pro-choice indicates a leaning towards radical feminism. But these GOP candidates, plus numerous Republican governors across the country, seem convinced. There is nothing radical about viewing my right to privacy in my decision whether or not to get an abortion as a right that truly makes me proud to, say, be here and not there.
Throwing aside any language of a state’s “compelling interest,” a right to privacy, etc., my belief that life does not begin until viability had led me to decide that I simply don’t want the government legislating my uterus. Think that’s radical? Take a number.
[Photo: Chellie Bowman participates in a pro-choice rally in Jackson, MS, in 2006. Credit: Barbara Gauntt, The Clarion-Ledger]