Roe v. Wade: A Landmark Decision or SCOTUS Gone Rogue?

It could be the Supreme Court of the United States (SCOTUS) decision of our lifetime. Arguments are currently underway involving Mississippi laws that severely limit the practice of abortion. Both pro-choice and pro-life advocates believe it’s the case to reverse the famous 1973 Roe v. Wade.

But what’s really at stake?

Will abortion be outlawed in America if Roe v. Wade is reversed? Was the 1973 case an example of unconstitutional judicial over reach? Is it just a religious matter?

The legality of abortion rests on four primary points:

1. Humanness: at what point is the fetus clearly human?
2. Viability: at what point can a fetus survive outside the womb?
3. Right to Privacy: does the U.S. Constitution protect the rights of the fetus or the mother? Or both?
4. Accessibility: are abortion services a federal or state responsibility?

Roe v. Wade was a “landmark decision” because it fundamentally changed existing law and carved a new interpretation for the Constitution. Landmark decisions are often done without legal precedent (that’s why they’re “landmark” in their rendering). Essentially, the 1973 Burger SCOTUS in a 7-2 decision acted outside the established law at that time. This is not a debatable fact. Roe v. Wade was “landmark” for how the 1973 SCOTUS interpreted historical Constitutional law.

But who guided this Warren Burger SCOTUS? 

The Burger Court included William O. Douglas (considered the most liberal SCOTUS justice in U.S. history), William J. Brennan, Jr. (the leader of the SCOTUS liberal wing), and fellow liberal justices Harry Blackmun (who wrote the Court’s opinion on Roe v. Wade) and Thurgood Marshall. Marshall once described his legal philosophy: “You do what you think is right and let the law catch up”

Consequently, the Warren Court was leaning left in 1973. A decade earlier the SCOTUS had ruled to eliminate prayer and Bible reading in public schools. With the transformative cultural changes of the late 1960s, every American institution was under attack. New religions, new lifestyles and new cultures were soaking the American landscape.

Abortion was a practice that was becoming newly acceptable in America.

Until 1973, abortion had been a matter of state legislation. Connecticut was the first state to make the practice illegal in 1821. By 1900 every state had abortion legislation. The biggest issues were accessibility and criminality. Historically, abortion providers were back alley, under the table and often dangerous options for pregnancy termination. It’s why many states legislated against their existence. There was no such thing as a medically “safe” abortion. In fact, it was a horrific practice often with horrific consequences.

Consequently, the women who pursued an abortion were desperate. They had no other options. And it didn’t take long for law enforcement to target the pregnant in their attempts to root out illegal abortion centers and their doctors (who faced stiff fines for performing abortions). However, women were also charged with crimes. In 1971, a hospital in Florida reported a woman for having an abortion and she was charged with manslaughter (receiving a two-year “house arrest” probation). The Florida Supreme Court eventually overturned her sentence.

The first state to legalize abortion on demand was California in 1967. There was no state line limitation. Consequently, women from around the U.S. flew to the Golden State to terminate their pregnancies. A particular flight from Dallas to Los Angeles was so popular for pregnant women that it was dubbed “The Abortion Special.” There were even prepackaged “non-family plan” trips. Abortion was a new industry in California. And it created new problems for other states.

In 1969 at Texan named Norma McCorvey learned she was pregnant. It was her third child and she didn’t want it. Her friends encouraged her to falsely claim “rape” in order to obtain an abortion (as many states allowed abortions for rape or incest). But Texas law was stricter. Abortions were reserved only to save the life of the mother. She became known as “Jane Roe” to protect her identity. The defendant was the District Attorney in Dallas named Henry Wade.

And that’s how “Roe v. Wade” came to the U.S. Supreme Court in 1970.

Arguments for the case were scheduled for December 13, 1971, but the retirements of two justices (Hugo Black and John Marshall Harlan) created pause. There were also other related cases (Doe v. Bolton, Younger v. Harris, United States v. Vuitch) that influenced how much jurisdiction the SCOTUS enjoyed. In the Vuitch case, the constitutionality of criminal abortion was at play, particularly using abortion as a medical procedure. When the Vuitch case was narrowly decided in favor of abortion, and the two SCOTUS openings were filled (by Lewis F. Powell and William Rehnquist) it opened the gate for a full hearing on Roe v. Wade. The Burger Court ultimately used their own precedent ruling (for Vuitch) to rule in favor of abortion as a federally-protected medical practice.

Many constitutional scholars at the time, and to this day, believe the Burger Court technically “legislated from the bench.” The liberal wing of the SCOTUS was progressive and radical, perhaps more than any Court before or since. As mentioned, Thurgood Marshall believed in judicial activism. Only Byron White and William Rehnquist (who was a newly appointed justice) dissented.

Between 1973 and 2019 an estimated 62 million abortions occurred.

However, since 1997 abortions have reduced by nearly half—from 1.19 million to 630,000. The high mark for abortions was 1990 (1.43 million) and the low was 2017 (613,000). In general, the use of abortion services has declined. In the 1980s, with the birthing of the “Baby on Board” generation or Millennials, America began a new chapter in how it viewed family planning, contraception and babies. It’s no surprise than the single largest drop in abortion occurred between 1997 and 1998, when abortions dropped under the million mark (884,000) for the first time since 1975. That’s the year the first Millennials turned 16 years of age. They had a different outlook on abortion. Many preferred adoption to terminating a pregnancy.

In the past half century, the ability to nurse a fetus outside the womb has dramatically improved. Furthermore, the scientific technology now allows us to better observe and track fetal development. It’s why few developmental biologists deny that human life is detectable (with a separate and distinct heartbeat) by the sixth week of gestation. It’s also why pro-life advocates continue to view abortion as the termination of a human life. Meanwhile, many pro-choice proponents argue that abortion should be legal all the way to birth, and some even suggest, immediately after birth. Finally, constitutional scholars continue to cite the Burgers Court’s decision to federally legalize abortion as judicial over-reach. Technically abortion services should be decided by the people and the legislators of each individual state.

So revisiting Roe v. Wade in 2021 is not necessarily a bad thing.

If the science has proven there is human life (just like there is dog life or chicken life) after a certain point, even up to conception, then Roe v. Wade was a wrong decision. Constitutionally, all persons (which would include unborn) have legal protections.

Second if medical advances have improved the viability of a fetus to increase his or her ability to survive outside the womb, then Roe v. Wade was a wrong decision. It would be a criminal act to terminate a pregnancy for any reason other than saving the life of the mother, including rape or incest.

Third if the Roberts SCOTUS disagrees with the Burger SCOTUS on the “right to privacy” for the mother, based upon pre-1973 legal precedents and a historical interpretation of Constitution law, then Roe v. Wade was a wrong (and rogue) decision. Essentially the Robert’s SCOTUS would return the SCOTUS to its historic position as a nonpartisan opinion that judges Congressional law (not state law) for constitutionality. The SCOTUS was not instituted to overturn or uphold rulings by the state Supreme Courts. It was created to temper the laws produced by the FEDERAL legislative and executive branches. Since the FDR administration, the U.S Supreme Court has increasingly became more powerful and even “legislative.” In some cases, and many contend Roe v. Wade is a prime example, they legislated and not judged.

Finally, there’s the matter of accessibility. If Roe v. Wade is overturned, it will not end abortion services. That’s a red herring by pro-choice advocates. All it does is return, rightfully, the LEGISLATION of abortion services to the individual states. If California, Oregon and Washington desire to be states where abortions can be legally and safely administered, so be it. But if Idaho, Mississippi and Texas prefer all abortions services in their state to be illegal, that’s okay too. We are a more mobile culture in 2021. We can safely travel anywhere in the U.S. If a pregnant woman in Idaho wants to terminate her pregnancy, she can cross the state line and have the procedure done in Oregon or Washington.

Overturning Roe v. Wade will not make abortion illegal in every state. It will only make it illegal in states that prefer the practice to be illegal.

The winds are favorable for the SCOTUS to reverse the Roe v. Wade ruling. The conservative majority justices tend to rule via historical precedent and original interpretation of the Constitution. They see it as a fixed document until amended by “we the people.” The liberal minority justices tend to view the Constitution as a fluid document that shifts as culture changes (i.e., progressive). It was progressive justices that paved the way for this landmark 1973 decision (shifting how we looked at abortion in America) and, it seems now, that it will be constitutional justices who could correct the ruling. The only “precedent” case the current SCOTUS has was in 1992 (post Roe v. Wade)–a case that upheld abortion services using Roe v. Wade as precedent. However, if Roe v. Wade is overturned, all later rulings would also fall.

Progressive justice Sonia Sotomayor questioned in the argument phase: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Ironically that has been the argument against the Burger Court since 1973, that it “acted politically” rather than constitutionally. No matter how the current SCOTUS rules on this matter it will be either applauded or despised, just as it was in 1973.

Two conservative justices asked the most compelling questions regarding Roe v. Wade.

Justice Brett Kavanaugh asked, “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” In other words, this is NOT a FEDERAL matter. It should be a state’s prerogative. The Burger SCOTUS was wrong to remove the right for individual states to legalize or criminalize abortion services. It does seem like over reach.

Justice Samuel Alito inquired, “Can it [be] said that the right to abortion is deeply rooted in the history and traditions of the American people?” In other words, is this a matter of recent history or has abortion always been part of “who we are” as Americans? One could argue slavery was, at one time, “rooted to the history and traditions of the American people.” It was “we the people” (through an amendment to U.S. Constitution that corrected that evil). One could also argue for Christian religion as a “right” that’s historically been a part of our national fabric. But abortion on demand?  Before California’s legalization of abortion in 1967, the practice was nearly non-existent in America. It only became more desirable in a post-Pill contraceptive culture. In the era of 1960s sexual exploration and liberty, abortion was the most convenient way to resolve an “unwanted” problem. The question still remains: “Does that make it right?”

That’s why this isn’t a religious issue, even though religious beliefs play into the argument.

In the end, any decision to terminate a pregnancy is an ETHICAL choice based upon biology (is this growing fetus in the womb a human or not?), convenience (how easy, safe and affordable is the abortion option) and pragmatism (what will keeping or ending this pregnancy mean for the mother or the baby birthed)?

What the Robert’s SCOTUS will decide is whether that ethical choice is only for the mother alone. Does the fetus have a “right” to a voice, especially if its biological fact that he or she is clearly human? Regardless of the decision, abortion on demand will not end. Many, perhaps most states, will continue to offer abortion services. America is not going backward to “coat wire” back room, unsanitary abortion rooms. That’s another red herring.

But in the end, constitutionally, this probably is better decided by individual states. But that also means federal funding of abortion will need to end. And that’s probably what abortionists fear the most (the loss of federal funds). However, as many pro-life advocates argue, why should those who fundamentally believe abortion is a murder have to foot the bill for those who use abortion as a convenience, an easy out for “choosing” to engage in sexual relations. Is the privatization of abortion services a bad thing? Does this multi-million dollar industry need propped up by federal dollars? Could federal funds formerly targeted for abortion services be re-directed towards mental and emotional health services?

As for protecting women who conceived via rape or incest, this too is a difficult matter. There is evidence that the physical trauma of the act—especially rape—very rarely ends in a conception, let alone a full-term baby. Perhaps the only exception would be “date rape” where the partners somewhat know each other and and inconvenient and unwanted consequence can happen. Incest can also produce pregnancy, but it also creates genetic consequences too. These are difficult gray areas, but they tend to be exceptions. In general, most U.S. abortions are performed for reasons other than rape or incest (or to save the life of the mother).

Ultimately, the greatest consequence of reversing Roe v. Wade would be federal funding and some inconvenience. Otherwise, women who desire an abortion could still get it and states (populated with people who are more pro-life) can legislate against the practice.

That’s the way it was before 1973.

And perhaps the old way was better.

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SOURCES:

1. “Roe v. Wade” (Wikipedia): https://en.wikipedia.org/wiki/Roe_v._Wade
2. Number of Legal U.S. Abortions: 1973-2019: https://www.statista.com/statistics/185274/number-of-legal-abortions-in-the-us-since-2000/
3. U.S. Abortion Rates, 1960-2013: https://www.johnstonsarchive.net/policy/abortion/graphusabrate.html