e. magill's Intrigue


“Deep and Seemingly Absolute Convictions”: A Summary of Roe v. Wade and its Latest Challenge

Norma McCorvey (a.k.a. “Jane Roe”), who switched sides in the abortion debate and converted to Christianity eight years ago, is now arguing that new evidence suggests negative side effects exist for women who have undergone abortions. According to the Associated Press, she filed a new suit yesterday challenging the U.S. Supreme Court’s decision on the abortion issue, as it was explored in Roe v. Wade, 410 U.S. 113 (1973) [1].

Her assertion seems to be valid in content. There are numerous studies out there that suggest an increase in physical and mental health risks for women who have undergone an abortion. The risks of adverse stress, child abuse, low self-esteem, guilt and regret, problems with future pregnancies, depression, anxiety, and gynecological diseases all seem to increase after an abortion [2]. The question, then, should focus on whether or not these new statistics change the ruling laid down by the Supreme Court.

According to the language of the Roe v. Wade finding, it would appear that they do. In its official opinion, delivered by Mr. Justice Blackmun, the U.S. Supreme Court states that “the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed” (p.150) and uses this interest to justify legislation restricting the constitutionality of abortions undertaken after the first trimester of pregnancy. Therefore, if it could now be demonstrated to the court that “the woman’s own health and safety” are more at risk than was known at the time of the original hearing, it is conceivable that Roe v. Wade would be overturned.

This does not address, however, the principle argument of the Pro-Choice crowd, which is that a woman has the fundamental right to do whatever she pleases to her own body. It is claimed that this right is a protected liberty under the Ninth and/or Fourteenth Amendments to the Constitution. Despite the fact that this argument lives on over thirty years since the decision (and despite the fact that I wish it were true), the Supreme Court makes it abundantly clear in its opinion that the argument is a fallacious one.

Even though the Court acknowledges that the choice to have a child falls within the so-called right to privacy, it also acknowledges that State interests do not protect the right of privacy from infringement. Consider, for example, drug laws and suicide laws. As the opinion states:

...appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that [the State] either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. (pp.153, 154)

Therefore, according to the United States Supreme Court, the State has sufficient interest in the regulation of abortion if it is deemed appropriate, even when the right of the mother is considered.

And, as the Pro-Life crowd is quick to point out, what about the rights of the unborn? Does the State have an interest in protecting any rights afforded to a prenatal child by the Constitution? Does a prenatal child even have those rights? Is the unborn baby a part of the mother’s body or an individual being?

These questions, as I see it, are at the heart of the abortion debate, and they hinge upon one central dispute: the dispute over when life actually begins. The Supreme Court tackled this dispute as well, but stated that “when those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer” (p.150). I believe that now, thirty years later, we are still unable to arrive at a viable consensus, which ultimately means that the debate will rage on and that the law does not currently define a prenatal child as a “person” for the purposes of the Constitution.

Therefore, in the eyes of the law, as made clear by the Supreme Court, the unborn are not protected by constitutional rights because it is unclear that they are even alive. This acknowledgment of the gray area, though, hurts both sides of the abortion debate, because it also highlights the flawed logic of the “coat hanger” argument.

The “coat hanger” argument states that, when abortions are illegal, women seek out illegal abortions from “back alley butchers” and have abortion procedures performed on them with “rusty coat hangers”. Therefore, the argument follows, abortions should be legal, because illegal abortions carry increased risks of injury and death for the mother.

The argument fails because it does not take into account the possibility that a prenatal child is alive. As Dr. Frank Beckwith states, “if the unborn are fully human, this pro-choice argument is tantamount to saying that because people die or are harmed while killing other people, the state should make it safe for them to do so” [3]. Besides, legal abortion leads to violence at women’s clinics and against abortion doctors, does it not?

I should note that the Supreme Court accepted the premise that illegalized abortion would lead to unsafe abortion practices, thereby harming the mother.

Other, somewhat similar arguments, such as the socio-economic, racial, sexual, and political impacts of abortion, can easily be supported on both sides by facts and figures. However, when considering a matter that deals with integral questions of life and liberty, I, like the Supreme Court, refuse to entertain such speculative, irrelevant, and cold-blooded calculations. The debate should focus on the lives and liberties at risk.

And the liberties at question do not solely surround the potential mother and child. Do doctors performing abortions, for example, have the right to perform or deny an abortion based upon personal choice? The original Hippocratic Oath prohibits abortion, and, even without that prohibition, the mandate to “do no harm” could easily be interpreted by some as an oath against abortion.

That’s what it comes down to for most people, a judgment call based in morality.

The Pro-Life movement, at its heart, tends to treat abortion as a moral issue. The movement generally believes that it is immoral to abort a child, that it leads to an overall decrease in public ethics (increases in premarital sex, decreases in the number of successful relationships, increases in child abuse cases, and increases in infanticide). The numbers seem to indicate that this belief may not be unfounded [2], but at what point should the law be accountable to morality?

Some take a religious stand to support their beliefs as to the immorality of abortion, but this type of stance has never worked in the eyes of the law. If it is immoral in the eyes of the divine, doesn’t the issue of abortion belong in the hands of the Almighty rather than in the hands of legislators and judges? While the phrase “separation of church and state” may come from a letter written by Thomas Jefferson and not actual law, it is a principle our government tends to embrace.

The debate, divorced from its religious overtones, is seen by many of the Pro-Life supporters as being about responsibility. Abortion, some argue, decreases responsibility, and alternatives such as adoption would allow such responsibilities to exist in its absence.

However, as evidenced by McCarvey’s own regrets and the regrets of those around her (CNN described them as “60 women, some who sobbed and held signs that read ‘I regret my abortion’” [4]), choosing abortion has its own built-in responsibilities. The statistics indicate that most women who have undergone abortion have, in the long-term, felt disturbed by the act and have regretted it.

In the end, it is about choice. It is impossible to tell whether or not a prenatal child deserves to choose, but it is known that doctors and pregnant women have the ability to make their own choices, no matter how difficult those choices might be. At no point do I mean to imply that the choice is an easy one--a woman seeking to abort should be well-informed as to the potential consequences of such an action--but, as I see it, there is no government interest strong enough at this time for the courts to force the issue of abortion either way, despite the fact that it is possible that, given this new “Roe” lawsuit, it will.

(This list does not represent the entirety of my research on this subject)
1. FindLaw: Roe v. Wade, 410 U.S. 113 (1973)
2. Roe v Wade.org
3. More on Illegal Abortion Myths
4. CNN.com: Ex-plaintiff in landmark Roe v. Wade ruling asks case to be overturned
5. CDC: legal abortion statistics 1973-1998 (PDF)

-e. magill, 6/18/2003
Copyright ©2003 e. magill. All rights reserved.