by Michael Handley
Today marks the 40th anniversary of the Supreme Court’s Roe v. Wade decision. On January 22, 1973, the U.S. Supreme Court handed down its landmark decision, Roe v. Wade, recognizing the constitutional right to privacy and a woman’s right to make her own reproductive health care decisions. At the time Roe was decided, most states severely restricted or banned the practice of abortion.
Seven in ten Americans support the historic Roe decision, according to just out NBC News/Wall Street Journal poll and a recent Pew Research study found that 63 percent of Americans support the Roe decision.
The decision ruled unconstitutional a Texas state law that banned abortions except to save the life of the mother. The Court ruled that the states were forbidden from outlawing or regulating any aspect of abortion performed during the first trimester of pregnancy, could only enact abortion regulations reasonably related to maternal health in the second and third trimesters, and could enact abortion laws protecting the life of the fetus only in the third trimester. Even then, an exception had to be made to protect the life of the mother.
In 1970, two recent graduates of the University of Texas Law School, Linda Coffee and Sarah Weddington, brought a lawsuit on behalf of a pregnant woman, Dallas area resident Norma L. McCorvey ("Jane Roe"), claiming a Texas law criminalizing most abortions violated Roe's constitutional rights. The Texas law banned all abortions except those necessary to save the life of the mother. Roe claimed that while her life was not endangered, she could not afford to travel out of state and had a right to terminate her pregnancy in a safe medical environment. The lawsuit was filed against Henry Wade, Dallas Country District Attorney, in a Texas federal court. The Texas court ruled that the law violated the Constitution. Wade appealed to the U.S. Supreme Court, which reviewed the case throughout 1971 and 1972.
In a 7-2 decision written by Justice Harry Blackman (who was chosen because of his prior experience as counsel to the Mayo Clinic), the Court ruled that the Texas statute violated Jane Roe's constitutional right to privacy. The Court argued that the Constitution's First, Fourth, Ninth, and Fourteenth Amendments protect an individual's "zone of privacy" against state laws and cited past cases ruling that marriage, contraception, and child rearing are activities covered in this "zone of privacy." The Court then argued that the "zone of privacy" was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." This decision involved myriad physical, psychological, and economic stresses a pregnant woman must face.
Because abortions lie within a pregnant woman's "zone of privacy," the abortion decision "and its effectuation" are fundamental rights that are protected by the Constitution from regulation by the states, so laws regulating abortion must be sufficiently "important." Was Texas's law sufficiently important to pass constitutional muster? The Court reviewed the history of abortion laws, from ancient Greece to contemporary America, and therein found three justifications for banning abortions:
- A Victorian social concern to discourage illicit sexual conduct;
- Protecting the health of women; and
- Protecting prenatal life.
Culturally, while some groups regard fetuses as a "person" deserving full "personhood" rights, no consensus exists. The Court ruled that Texas was thus taking one "view" of many. Protecting all fetuses under this contentious "view" of prenatal life was not sufficiently important to justify the state's banning of almost all abortions. In the last few years Republicans in state legislatures and the U.S. Congress have been pushing legislation to declare Personhood At Conception to Criminalize Abortion and the use of Birth Control. This personhood movement stems directly from the court's Roe decision "persons" finding.
However, the Court ruled that narrower state laws regulating abortion might be sufficiently important to be constitutional. For example, because the medical community finds that the human fetus might be "viable" ("capable of meaningful life") outside the mother's womb after six months of growth, a state might constitutionally protect a fetus from abortions in the third trimester of pregnancy, as long as it permitted an exception to save the life of the mother. Additionally, because second- and third-trimester abortions present more health risks to the mother, the state might regulate certain aspects of abortions related to maternal health after three months of pregnancy. In the first trimester, however, a state's interests in regulating abortions can never be found "important" enough. Such abortions are thus exclusively for the patient and her doctor to govern.
The Pew poll found that more than six-in-ten (63%) say the Roe v. Wade decision should not be overturned while only about three-in-ten (29%) want the ruling overturned. These opinions are little changed from Pew surveys conducted 10 and 20 years ago.
The NBC News/Wall Street Journal poll found that 7 in 10 respondents oppose Roe v. Wade being overturned, including 57 percent who feel strongly about this. By comparison, the NBC/WSJ poll found that just 24 percent now want the Roe v. Wade decision overturned, including 21 percent who feel strongly about this position. As Republican efforts to end reproductive rights intensify, public support for Roe is growing:
As the 40th anniversary of the Roe v. Wade Supreme Court decision takes place on Tuesday, a majority of Americans — for the first time — believe abortion should be legal in all or most cases, according to a new NBC News/Wall Street Journal poll.
What's more, seven in 10 respondents oppose Roe v. Wade being overturned, which is the highest percentage on this question since 1989.
"These are profound changes," says Republican pollster Bill McInturff, who conducted this survey with Democratic pollster Peter D. Hart and his colleagues.
|Chart from Maddow Blog|
40 years later, a woman’s constitutional right to choose still isn’t safe, and Roe is in jeopardy. In 2005, Congress confirmed the appointment of two new conservative anti-choice Supreme Court justices — Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. — both of whom had been nominated by President George W. Bush. Roberts and Alito joined conservative Justices Thomas and Scalia who were appoint by Republican Presidents Bush (41) and Reagan, respectively.
All four of these conservative justices believe the U.S. Constitution does not grant Americans a right of privacy in any circumstance, including the right of women to choose to have an abortion, or even to use contraception. Last summer, Justice Scalia said in a Fox News interview that it is a “lie” that women have a Constitutional right of privacy to choose to have an abortion, or use contraception. Those four conservative justices believe states should be allowed to pass laws restricting or every outlawing abortion and contraception use.
The court is but a single vote away from not only overturning Roe but also overturning the court's 1965 Griswold v. Connecticut decision granting women the right of privacy to choose to use contraception. At the time Griswold was decided, most states severely restricted or banned the distribution of contraceptive products and information. It was even unlawful for doctors to discuss contraceptive options with their patients, women or men.
The court's 1973 Roe v. Wade decision was predicated on the court's 1965 Griswold v. Connecticut finding that women and men have a right of privacy to make their own reproductive family planing choices. Anti-choice legislators in Republican controlled red states like Texas continue to pass a wave of onerous state legislation to effectively ban abortion in the hope they can pass laws so onerous that one will finally be appealed to the Supreme Court. Anti-choice Republican hope the four anti-choice justices might convince one of the other nine justices to join them overturning the court's finding that the Constitution grants a right of privacy for Americans, women and men, to make their own reproductive family planning decisions.
On Monday, Texas Gov. Rick Perry lambasted the U.S. Supreme Court’s January 22, 1972 Roe v. Wade decision, indicating he will continue to push for anti-abortion laws. “In Texas, we’ve worked hard to strengthen our abortion laws to the greatest extent possible under Roe v. Wade,” the governor said. “We will continue working to empower families and protect our children’s future, until the day abortion is nothing more than a tragic footnote in our nation’s history.”
Perry has asked Texas lawmakers to approve a so-called fetal pain bill. The proposed law would prohibit abortion once a fetus is capable of experiencing pain. Citing disputed research, pro-life advocates claim a fetus can feel pain after 20 weeks of pregnancy.
The fetal pain bill would run counter to Roe v. Wade, which upheld a woman’s right to have an abortion within the first 24 weeks of her pregnancy. Courts have blocked similar fetal pain laws in Georgia, Oklahoma and Arizona from taking effect.
Perry has also called for more regulations on abortion clinics, following the example of other states, that would force abortion clinics to shut down.
State Facts About Abortion