It has been more than 46 years since the 7-2 Supreme Court ruling in this landmark case. Since the nomination of Donald Trump (a suspected pro-lifer) as Republican Presidential candidate in 2016, the subject has been frequently showcased by media pundits and activists. The noise reached a crescendo during the Judge Kavanaugh Supreme Court nomination hearings, only to rise up again recently.
It might be constructive to review the original case. In 1969, Norma McCorvey, age 21, became pregnant with her third child and wanted an abortion. However, McCorvey lived in Texas , where abortion was illegal except when necessary to save the mother’s life. She hired lawyers who filed a lawsuit in U. S. federal court against her local district attorney, Henry Wade, alleging that Texas’ abortion laws were unconstitutional. In their filing, the lawyers chose the pseudonym, Jane Roe, for their client. A three-judge District Court panel ruled in her favor. Texas then appealed the ruling directly to the U. S. Supreme Court.
The January, 1973 decision held that the Due Process Clause of the Fourteenth Amendment provides a “right to privacy” that protects a pregnant woman’s right to choose whether or not to have an abortion. But, importantly, the ruling did not stop there: The Court said that this right is not absolute. There must be a balance between the government’s interest in protecting women’s health and the government’s interest in protecting prenatal life. The Court went on resolve how this balance should be addressed. They did not suggest splitting the baby in half (ala the dispute brought to King Solomon), but instead split a pregnancy into three parts – the three trimesters:
- First trimester – no government could prohibit abortions at all
- Second trimester – governments could require reasonable health regulations
- Third trimester – abortions could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother.
Finally, the Court classified the right to choose to have an abortion as “fundamental”. The effect of this designation is to make laws allowing abortions difficult to challenge in court.
The decision was greeted by a cacophony of applause and jeers, depending on point of view. It was scorned by some in the legal community as “judicial activism” and “not constitutional law”. It is interesting to note that the decision could not have had any impact on Ms. McCorvey’s pregnancy at issue, coming, as it did, three years after she first filed suit! In fact, after being unable to obtain an illegal abortion, she gave birth and put the child up for adoption.
The post-decision controversy continued virtually unabated leading to a modification issued in the decision on Planned Parenthood v. Casey in 1992. In that case the Court:
- Abandoned Roe’s trimester framework in favor of a standard based on fetal viability.
- Overruled Roe’s requirement that the right to choose to have an abortion be considered “fundamental”, as it relates to judicial review.
So, the one side that clings to the trimester framework is embracing ghosts. The other side that says the right to choose is constitutionally “fundamental” is not quite up to speed. As I read the current situation (I am not a constitutional, or any kind of lawyer) Federal law is leaving it to the states to determine “fetal viability”. However, to those that say that a baby that is full-term but not yet having taken its first breath is not viable – that seems like an excursion into fantasy land, and not what the law intends.
Of course, that is just my opinion. Ultimately, in our democratic system, the majority of voters have to decide the very difficult question of: at what stage of a pregnancy does the government’s responsibility to protect life extend to the unborn, and super-cede a pregnant woman’s liberty to choose.