Wading Into Roe

“Roe v. Wade.” To mention that case name is to drop a verbal bomb. We all have an opinion on abortion because it touches the core of how we see ourselves as human.

BY Andrew Knott

May 20-26, 2007 Issue | Posted 5/15/07 at 7:00 AM

“Roe v. Wade.” To mention that case name is to drop a verbal bomb. We all have an opinion on abortion because it touches the core of how we see ourselves as human.

A friend of mine was discussing how she feels scared that her “right to choose” is in serious jeopardy after the Supreme Court’s recent decision to uphold a federal law banning partial-birth abortion. Another friend believes one more pro-life justice will cause the Supreme Court to put an end to abortion in the United States.

Although my two friends are at loggerheads in their views, they are ironically united by one thing: their gross ignorance of the law and the real issues at play from the standpoint of the Supreme Court.

It wasn’t until recently that the Supreme Court had anything to do with abortion.

Prior to the mid 19th-century, most states had enacted statutes espousing the English Common Law, which prohibited abortion only after a pregnancy had reached what was called “quickening.”

After the Civil War, states began to tighten up on abortion, permitting it only in cases of rape, or prohibiting it all together. Then, in 1967, the pendulum swung back when Colorado allowed abortions in cases other than rape. Over the next six years, one third of the states enacted laws following Colorado’s lead.

Then with Roe v. Wade (and its companion case Doe v. Bolton) in 1973, the Supreme Court discovered a “right of privacy” in the due process clause of the Constitution’s 14th Amendment. That’s the amendment that says, “No state shall … deprive any person of life, liberty or property without due process of law.”

Abortion law was previously the province of state legislatures. The Supreme Court arrogated the abortion issue to itself, making it a national issue decided by unelected judges with life terms.

Theoretically, states still could enact laws restricting abortion to some degree, but none ever met Roe’s exacting standard.

There are many who support a right to abortion who still see Roe as a bad decision. Ruth Bader Ginsburg, before her appointment to the Supreme Court, criticized the high court’s ruling: “[Roe’s] heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

Even Edward Lazarus, a former clerk of Justice Harry Blackmun, Roe’s author, commented, “Roe borders on the indefensible.”

Then in 1992, the Court partially modified Roe in Planned Parenthood v. Casey. For purposes of this article, Casey’s take-home point is that it recognized a legitimate and substantial governmental interest in preserving and promoting “fetal life.” Although winning its case, Planned Parenthood saw Casey more as a threat than a win, since now a fetal child became legally recognized as “potential life.”

Last month’s decision, Gonzales v. Carhart, upheld the federal ban on “partial-birth abortion” largely on technical grounds pertaining to the deference that the court should give to congressional fact finding.

In a nutshell, that’s the Supreme Court’s abortion jurisprudence.

The significance of Roe is not so much that it legalized abortion, since in 1967 abortion was already legal in many states, with the likelihood of being more widespread every year. Roe’s significance is that it turned a reflective public debate on the nature of the human person into an argument over legal technicalities.

At oral arguments in Carhart, the lawyers and justices compared, with a cold dispassion, abortion procedures where a baby is either killed outside the womb with his body intact, or dismembered with forceps while inside the womb. The gruesomeness of these procedures — the real issue to pro-lifers — was barely touched upon.

The life issues will continue to be ignored until Roe is reversed and the abortion debate is returned from the courtroom to the public forum. But, just because pro-lifers would be able to argue the issue as it is, abortion would not necessarily be illegal. The culture of death has a stranglehold on many regions, and the laws enacted in the legislatures would likely reflect that.

And even if abortion were illegal in all 50 states, we must remember what Plato said: “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.” But what that quote doesn’t mention is the generally good but weak majority: Those people that want to do good, but need the aid of a rule or a law to actually do so, when pitted against self-interest.

So, while the fight against abortion and the overall culture of death begins where culture is made — in the home, at the school and in the church — that fight will only be successful if won in the courtroom and at the Capitol. The law shapes our behavior more than any other single factor; if life’s sanctity isn’t respected in its laws, it really isn’t truly respected in the culture, either.

Andrew Knott is a writer and attorney practicing law in Cheshire, Conn. He can be reached at .

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