Abortion
"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.
Bibliography
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).