Sunday, November 04, 2012

WILL ROE v. WADE EVER BE OVERTURNED?

From My Own Little Corner  For decades now, a large part of the Republican party platform has been it's stance on overturning Roe v. Wade.  Of course, there are other issues, but a large part of it's basic platform is it's pro-life stance.  I am a pro-life, pro-choice Democrat, and before anyone says that I can't possibly be both, please understand this, abortion is not something I would choose for myself, however I don't feel that I have the Constitutional right to force my personal decision on another woman, with no understanding of the circumstances they may find themselves in.  My views on this were altered radically when I was faced with a situation that could have required the termination of my last pregnancy, at 5 1/2 months, in 1987.  I had a difficult pregnancy, and there was a real concern that my youngest had no bladder or kidneys and so could never have survived outside the womb.  Dealing at the time with my daughter's illness and impending death, the thought of having to watch another of my children die, knowing there was no hope, changed my views.  I had a long week of waiting, crying, and praying while traveling to Cardinal Glennon every day to be with my severely damaged daughter.  Thank God, I wasn't forced to make that decision, but it changed the way I viewed the legality of Roe v. Wade.

Knowing how I feel, and having been confronted recently with the opinion from others that if I am pro choice, I cannot possibly also be a Christian (which by the way I am...I have accepted Jesus Christ as my Lord and Saviour, and have been baptized as an outward symbol of that decision), I decided to do some real research on Roe v. Wade.  I found a lot of interesting information about the original ruling and subsequent revisits by the Supreme Court of the United States.  I would like to share this with you, and then share MY thoughts on why after all these years, with all the drama, hand wringing, bombings, disagreements, political posturing, and promises to overturn it,  it is still the law of the land, other than the constitutionality of it.  Please understand I am in no way attempting to change anyone's mind, nor am I telling you that your belief on this subject is the wrong one.  I am simply presenting what I have found and my hypothesis as to why it will never be overturned.

First, a little history on Roe v. Wade.

Although opponents to Roe V. Wade would like to believe that this ruling was the first time that abortion was legal in this country, that is simply not true.  In the 1700's and early 1800's the term abortion only applied to termination of pregnancies after "quickening", or the first feelings of movement.  There were pills readily available to women, called "Female Monthly Pills", that were taken when women wanted to end unwanted pregnancies.

In 1827, Illinois passed a law that taking these pills was illegal and punishable by up to 3 years in prison.  Many states soon followed suit, but the pills were still widely available until the middle of the 19th century.  Abortion did not become a serious offense until between 1860 and 1880, and contrary to popular belief it was not based on any moral outrage, but rather pursued by doctors that felt that the practitioners of abortion were competition and were taking business away from them.  Until that point in time, even the Catholic church had accepted the ending of unwanted pregnancies up until the time of quickening, but soon joined forces with the doctors.

By the turn of the century all states had laws that banned abortion, but these were rarely enforced, and if the woman had enough money, abortion was still available to her.  By the late 1930's the laws were being strictly enforced.  Soon the crackdown led to a reform movement whereby abortion bans were lifted in California and New York, even before the supreme court ruled on Roe v. Wade.  (1)

On January 22, 1973, the SCOTUS issued it's ruling on Roe v. Wade.  This suit had been brought by Jane Roe, an alias for Norma McCorvey.  It was originally brought on her behalf against the state of Texas, alleging that the abortion law there violated her constitutional rights and the rights of other women.  The defendant was the District Attorney of Dallas County, Texas, Henry B. Wade.  Sarah Weddington and Linda Coffee were counsel for the plaintiffs and John Tolle, Jay Flowers, and Jay Floyd argued for the defense. A lower court's decision striking down the abortion law was based on the 9th Amendment, part of the Bill of Rights,  which states "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and protected a person's right to privacy.  The Supreme Court of the United States, chose to base it's ruling on the 14th Amendment to the US Constitution, and was decided primarily on the due process clause. A criminal statue that did not take into account the stage of the pregnancy or other issues, such as the life of the mother,  was a ruled to be a violation of due process. As a result the courts upheld the lower courts decision and issued these guidelines.

1. In the first trimester, the state(that is, ANY government), could treat abortion only as a medical decision, leaving medical judgement to the woman's physician.

2. In the second trimester (before viability), the state's interest was seen as legitimate when it was protecting life of the mother.

3. After viability of the fetus (the ability of the fetus to survive outside and separated from the uterus), the potential of human life could be considered as a legitimate state interest, and the state could "choose to regulate, or even proscribe abortion" as long as the life and health of the mother was protected.

All state laws prohibiting the access to abortion during the first trimester were invalidated by Roe v. Wade.  State laws restricting access during the second trimester were upheld only when the restrictions were for the purpose of protecting the health of the pregnant woman. (2)

In other words, Roe v. Wade held that a woman, with her doctor, could choose abortion in the earlier months of pregnancy without restriction, and with certain restrictions in later months, based on the Constitutional right to privacy.

Sitting on this court were the following:

Harry Blackmun, William J. Brennan, Chief Justice Warren Burger, William O. Douglas, Thurgood Marshall, Lewis Powell, Potter Stewart, the majority, and William Rehnquist and Byron White, the dissenters.  The majority opinion was written by Harry Blackmun, with concurring opinions by Potter Stewart, Warren Burger, and William O. Douglas.  Both Justice Rehnquist and Justice White wrote dissenting opinions.  The interesting thing is the make up of the political appointments of these judges. People often think the justices were all liberal judges appointed by Democratic presidents, when in actuality the opposite is true.  Blackmun, Powell, and Burgher, as well as Rehnquist, were all appointed by President Richard M. Nixon, Brennan and Stewart by President Dwight D. Eisenhower.  Douglas was appointed by President Franklin D. Roosevelt and Marshall by President Lyndon B. Johnson, with White being appointed by President John F. Kennedy.  So, of the 7 judges who upheld Roe v. Wade, 5 were appointed by Republican presidents, 2 by Democratic presidents, and of the 2 dissenting judges, one was appointed by a Republican and one by a Democratic president. (3)

This ruling has been revisited through the years, and in 1992 in Casey v Planned Parenthood, the decision was upheld again.  In releasing the much anticipated decision, the SCOTUS first declared that "a woman's decision to get an abortion implicates important "liberty interests" and "privacy issues" that the Constitution's Due Process clause protects against state interference.  Together these interests form a "substantive right to privacy" that is protected from state interference "in marriage, procreation, contraception, family relation ships, child rearing, and education."  This right also protects the abortion decision, the court again argued, because it implicates equally intimate questions of a woman's personal autonomy, personal sacrifices, emotional and mental health, and fundamental right to define her life." (4)  Roe v Wade was upheld by a slim 5-4 margin, although there were high hopes that since the make up of the court had changed, it would be overturned.  The court now consisted of Harry Blackmun, Anthony Kennedy, Sandra Day O'Connor, David Souter, John Paul Stevens (Justices for the court) and William Rehnquist, Antonin Scalia, Clarence Thomas, and Byron White (dissenting Justices). Of these Justices, 8 were appointed by Republican presidents, 5 of those by President Reagan and President Bush, both well known for their opposition to Roe v. Wade. (5)

Now, with this history in mind, I have to wonder why so many continue to believe that the SCOTUS will overturn Roe v. Wade if it is brought before the court in the future.  In upholding it, the justices have stated that it is unconstitutional to limit a woman's access to abortion services on more than one occasion.

I have thought about this a lot, especially recently when my Christianity has been called into question, and this is what I think. In my opinion,  no matter how vociferously the republican candidates declare otherwise, Roe v. Wade will never be overturned.  It is a rallying cry for the base of the Republican party.  When all else is going wrong, when the candidate that they have is weak and the support of the base is lackluster, the candidate will always go back to the pro-life stance and the promise of overturning Roe v. Wade to shore up support.  If they were to overturn Roe v. Wade and outlaw abortion (which, as history has shown us, will never happen, even when the majority of the Supreme Court justices are republican appointees) they lose a very powerful way to motivate their base.  If the republican party was truly serious about outlawing abortion and overturning Roe v. Wade, they had the perfect opportunity, between January 2001 and January 2007, when the Republican president, George W. Bush, had a super majority.

So, when a Republican candidate says he will strike down Roe v. Wade, I have serious reservations about his intention to truly do so, and those who are voting for him with this hope in mind, are very likely to be disappointed.





1.  http://www.history.com/this-day-in-history/roe-v-wade

2.  http://womenshistory.about.com/od/abortionuslegal/p/roe_v_wade.htm

3.  http://vox-nova.com/2008/05/21/are-liberal-judges-to-blame-for-roe-v-wade/

4.  http://www.pbs.org/wnet/supremecourt/rights/landmark_casey.html

5.  http://en.wikipedia.org/wiki/Planned_Parenthood_v._Casey

4 comments:

Anonymous said...

Brilliant analysis! Your using deeply personal information from your own life strengthens your reasoning. People who have never faced such heart-wrenching choices can have zero appreciation for questions on choice and women's health issues.

The most troubling fact your essay brings up is that the GOP plays deeply religious people for fools. I agree, the leaders of the GOP will NEVER overturn Roe v. Wade. To do so would take away the lever they use to control clueless voters.

Stephanie (and Walter) said...

Anonymous, thank you for your comments. I used to think that there was never a reason for anyone to have an abortion, but one faced with that prospect, I realized I was being shortsighted, self righteous, and just plain judgmental. Never again will I think that I have the right to tell anyone else what they can do with their body, especially when health issues are involved.

As for the GOP overturning Roe v. Wade, I have pondered on this since the presidency of GW Bush. I could not understand why, when presented with the perfect opportunity to overturn something that his constituents were so obviously against, the only changes made were in reference to partial birth abortions, a horrendous procedure, and one that I simply cannot advocate, especially when used a means of birth control. I eventually came to the conclusion that they simply didn't want it overturned and then began to wonder why. This is the only plausible reason I could come up with. If RvW is overturned, they lose much of zeal of their base, and soon the GOP would be weakened to the point of extinction. Just my opinion, but based on many years of watching and studying the dichotomous handling of this issue.

Anonymous said...

Dear Stephanie,

I tend to get very exercised over what I see as people being played for fools around the issue of abortion. The Democratic position of keeping abortion legal, safe and rare would move the right wing far closer to their goal than the current all-or-nothing stance of the GOP.

Interesting to me that now the GOP is also attacking women's right to contraception, a position the Catholic Church has always held. Senator Blunt's amendment (thankfully defeated by the Democrats in the Senate) would have allowed any employer to halt coverage of contraceptive care by insurance for any reason. Mr. Romney supported the Blunt Amendment.

Missouri, with Senator Blunt and with the would-be Senator, Akin, is moving backwards!

Anyway, Stephanie, you seem not to get so exercise and to come at this highly emotional issue with fine judgement. Could be because you understand it so deeply.

Stephanie (and Walter) said...

Anonymous, thank you. I feel that in order to view something objectively, you must remove the emotion from your assessment. I simply cannot believe that any woman who understands what is at stake would vote for the GOP agenda and against their own interests. But I have seen it happen over and over and over. It truly saddens me.