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ROE V. WADE AND THE RIGHT TO CHOOSE

“At the heart of liberty is the right to define one’s own concept of existence, of meaning,

of the universe, and of the mystery of human life. Beliefs about these matters could not

define the attributes of personhood were they formed under compulsion of the State.”1

U.S. Supreme Court Justices O’Conner, Kennedy and Souter Planned Parenthood of

Southeastern Pennsylvania v. Casey

Abortion in the United States Before Roe

When Roe v. Wade was decided in January 1973, abortion except to save a woman’s life

was banned in nearly two-thirds of the states.2 Laws in most of the remaining states

contained only a few additional exceptions.3 It is estimated that each year 1.2 million

women resorted to illegal abortion,4 despite the known hazards “of frightening trips to

dangerous locations in strange parts of town; of whiskey as an anesthetic; of ‘doctors’ who

were often marginal or unlicensed practitioners, sometimes alcoholic, sometimes sexually

abusive; unsanitary conditions; incompetent treatment; infection; hemorrhage;

disfiguration; and death.”4

The Constitutional Development of the Right to Privacy

During the half century leading up to Roe, the Supreme Court decided a series of

significant cases in which it recognized the existence of a constitutionally protected right

to privacy that keeps fundamentally important and deeply personal decisions concerning

“bodily integrity, identity and destiny” largely beyond the reach of government

interference.6 Citing this concern for autonomy and privacy, the Court struck down laws

severely curtailing the role of parents in education, mandating sterilization, and

prohibiting marriages between individuals of different races.7

Important aspects of the right to privacy were established in Griswold v. Connecticut8,

decided in 1965, and in Eisenstadt v. Baird, decided in 1972.9 In these cases, the

Supreme Court held that state laws that criminalized or hindered the use of contraception

violated the right to privacy. Having recognized in these cases “the right of the individual

to be free from unwarranted governmental intrusion into matters so fundamentally

affecting a person as the decision whether to bear or beget a child,”10 the Court held in

Roe that the right to privacy encompasses the right to choose whether to end a

pregnancy.11

The Court has reaffirmed this holding on multiple occasions throughout the past 25

years,12 noting in 1992 that “[t]he soundness of this . . . analysis is apparent from a

consideration of the alternative.”13 Without a privacy right that encompasses the right to

choose, the Constitution would permit the state to override not only a woman’s decision

to terminate her pregnancy, but also her choice to carry the pregnancy to term.14

The Roe Compromise

Although Roe invalidated restrictive abortion laws that disregarded women’s right to

privacy, the Court recognized a state’s valid interest in potential life.15 That is, the Court

rejected arguments that the right to choose is absolute and always outweighs the state’s

interest in imposing limitations.16 Instead, the Court issued a carefully crafted decision

that brought the state’s interest and the woman’s right to choose into balance.

The Court held that a woman has the right to choose abortion until fetal viability, but that

the state’s interest generally outweighs the woman’s right after that point.17 Accordingly,

after viability — the time at which it first becomes realistically possible for fetal life to be

maintained outside the woman’s body — the state may ban any abortion not necessary to

preserve a woman’s life or health.18

25 Years of Roe: A Better Life for Women

By invalidating laws that forced women to resort to back-alley abortion, Roe was directly

responsible for saving women’s lives. It is estimated that as many as 5000 women died

yearly from illegal abortion before Roe.19 Since the legalization of abortion in 1973, the

safety of abortion has increased dramatically. The number of deaths per 100,000 legal

abortion procedures declined more than five-fold between 1973 and 1991.20 In addition,

Roe has had a positive impact on the quality of many women’s lives. Although most

women welcome pregnancy, childbirth and the responsibilities of raising a child at some

period in their lives, few events can more dramatically constrain a woman’s opportunities

than an unplanned child. Because childbirth and pregnancy substantially affect a woman’s

“educational prospects, employment opportunities, and self-determination,” restrictive

abortion laws narrowly circumscribed women’s role in society and hindered women from

defining their paths through life in the most basic of ways.21 In the 25 years since Roe,

the variety and level of women’s achievements have reached unprecedented levels. The

Supreme Court recently observed that “[t]he ability of women to participate equally in the

economic and social life of the Nation has been facilitated by their ability to control their

reproductive lives.”22

Into the New Millennium: What Will the Next 25 Years Bring?

In 1992, the Court rendered its most important decision in the abortion area since Roe. In

Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed Roe,

while at the same time sharply restricting its protections. The Casey Court abandoned the

strict scrutiny standard of review and adopted a less protective standard that allows states

to impose restrictions as long as they do not “unduly burden” a woman’s right to choose.

Under this new standard, the Court approved state obstacles that it had previously found

to violate the right to privacy and effectively invited states to impose barriers on women’s

access to abortion.23 Indeed, today, states are enforcing more restrictions that impede

women’s access to safe, legal abortion than at any time since Roe was decided twenty-five

years ago.24

It seems inevitable that great strides will be made in the next millennium in science,

technology, athletics, communication, and in numerous other fields of human endeavor.

What is less clear is whether proponents of women’s reproductive health and freedom will

be able to move forward in the 21st century — to secure better access to effective methods

of contraception, comprehensive sexuality education, and quality health and child care –

or will remain locked in a struggle against further deterioration of the right to choose

ostensibly secured by Roe a quarter century ago.

It is past time for the nation to develop policies that secure access to abortion, make

abortion less necessary, and improve reproductive health. Our nation must commit

resources to prevent unintended pregnancy by promoting sexuality education, family

planning and healthy childbearing. Only then will the promise of Roe be fulfilled.

January 8, 1998

NOTES:

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992).

Roe v. Wade, 410 U.S. 113, 118-119 n.2 (1973).

See, e.g., Calif. Health & Safety Code ?? 25950-25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. ??

40-2-50 to 40-2-53 (Cum. Supp. 1967); Del. Code Ann., Tit. 24, ?? 1790-1793 (Supp. 1972);

N.M. Stat. Ann. ?? 40A-5-1 to 40A-5-3 (1972) .

Richard Schwarz, Septic Abortion (Philadelphia: J.B. Lippincott Co., 1968), 7; Willard Cates, Jr.,

“Legal Abortion: The Public Health Record,” Science, vol. 215 (Mar. 1982): 1586.

Walter Dellinger and Gene B. Sperling, “Abortion and the Supreme Court: The Retreat from Roe v.

Wade,” 138 University of Pennsylvania Law Review 83, 117 (Nov. 1989).

Casey, 505 U.S. at 927 (Blackmun, J., concurring and dissenting).

See Meyer v. Nebraska, 262 U.S. 390 (1923); Skinner v. Oklahoma, 316 U.S. 535 (1942); Loving v.

Virginia, 388 U.S. 1 (1967).

Griswold v. Connecticut, 381 U.S. 479 (1965).

Eisenstadt v. Baird, 405 U.S. 438 (1972).

Eisenstadt, 405 U.S. at 453 (emphasis omitted).

Roe, 410 U.S. at 153.

See, e.g., Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983); Thornburgh v.

American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

Casey, 505 U.S. at 859.

Casey, 505 U.S. at 859.

Roe, 410 U.S. at 159.

Roe, 410 U.S. at 153-54.

Roe, 410 U.S. at 163-65.

Roe, 410 U.S. at 163-64.

Schwarz, Septic Abortion, 7.

Lisa M. Koonin et al., “Abortion Surveillance — United States, 1993 and 1994,” CDC Surveillance

Summaries, Morbidity and Mortality Weekly Report, vol. 46, no. SS-4, (Aug. 8, 1997): 96.

Casey, 505 U.S. at 928 (Blackmun, J., concurring and dissenting)

Casey, 505 U.S. at 856.

Casey, 505 U.S. at 881-87.

Who Decides? A State-by-State Review of Abortion and Reproductive Rights, 1998 (Washington, D.C.:

The NARAL Foundation/NARAL, 1998), v.

317


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