Roe v. Wade is not the law on abortion in the U.S. — sort of

    Norma McCorvey,

    Norma McCorvey, "Jane Roe," left, and her attorney, Gloria Allred, hold hands as they leave the Supreme Court building in Washington, D.C., on Wednesday, April 26, 1989, after sitting in on arguments in a Missouri abortion case that had the potential to overturn the 1973 Roe v. Wade decision that legalized abortion. (AP Photo/J. Scott Applewhite, file)

    Ask any American where the right to an abortion comes from in the United States, and you are likely to get “Roe” as an answer. Top media outlets from Fox to MSNBC reference Roe v. Wade in their coverage of abortion rights, but they do a grave disservice to the American public by never mentioning what came after.

    In their attempts to make the story digestible for their audiences, they over-simplify the series of conservative decisions that have complicated, restricted, and in some cases eliminated a woman’s access to an abortion. And it’s important to understand the complexity of the issue, because it’s the poor and underprivileged who are affected most.

    It’s true that in 1973 the U.S. Supreme Court decided Roe v. Wade, which established abortion as a constitutional right. Since then, conservatives have waged a two-front war against it to remarkable success. They have battered and beaten Roe such that it is almost unrecognizable today. 

    Before Roe — establishing privacy

    Before going too far toward explaining abortion restrictions, it’s important to establish a baseline. In the years before Roe, the Supreme Court decided two cases — Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972) — which established that the constitutional right to privacy includes the right of people, married or single, “to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In order to restrict that privacy right, the government must have a compelling reason for doing so.

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    This compelling reason requirement is the gold standard of court protection against government intrusion, and it comes up a lot in the story of abortion rights in America.

    These cases were about access to contraception, not abortion, but they formed the constitutional foundation for the Roe decision.

    What does Roe actually say?

    Roe v. Wade was a case brought by Norma McCorvey (called “Jane Roe” to protect her anonymity), who was pregnant and without options because of a Texas statute that made getting an abortion a crime except “by medical advice for the purpose of saving the life of the mother.”

    The most important thing the Roe decision did was to establish that the right to privacy, as outlined in Griswold and Eisenstadt, includes the right to an abortion. This is what people mean when they say that there is a constitutional right to an abortion.

    Roe did not create an absolute right to the procedure, but rather one that the government must demonstrate a compelling reason to regulate or restrict. Justice Blackmun, author of the Roe opinion, recognized that the government does have a compelling interest in potential life, but only after a certain point in the pregnancy.

    Blackmun said two very important things in his opinion, which survive to this day: The government does not have a compelling interest in fetal life before the point it can survive outside of the uterus; and a fetus is not a person for the purposes of the Constitution and thus has no constitutional rights. (This is different from deciding the idea of personhood, which the Court continues to avoid to this day like it’s the business end of a red-hot poker.)

    The concept of viability outside of the womb is critical in abortion rights in the United States. Blackmun combined this concept with the compelling reason standard and created the trimester framework on which abortion rights operated for 19 years:

    1st Trimester: The government may not interfere in any way with a woman’s decision about abortion. It is presumed that the government’s interest in fetal life in the first trimester is not compelling.
    2nd Trimester: The government’s interest in the woman’s health becomes compelling, and it may regulate abortion procedures to protect it, however this may not include an outright ban. The government’s interest in fetal life does not become compelling until viability.
    3rd Trimester: Viability is presumed, and the government now has a compelling interest in the potential life. It may regulate or ban abortion as it sees fit except in instances where abortion is necessary to protect the life and/or health of the mother.

    Right to an abortion versus access to an abortion

    Roe was a huge and unexpected victory for the pro-choice movement. An opinion written by old, white men and intended to protect doctors from prosecution, without an ounce of female perspective at any stage, ended up being one of the most important gains in women’s rights since suffrage. No one expected the opinion to have that far-reaching effect, and conservatives were caught flat-footed.

    Fear not, though; they rallied quickly.

    The language of Roe is very concrete and difficult to work around, however, in 1977 the anti-choice movement put the first, and most important, crack in the armor of abortion rights using two cases decided around the time of Roe.

    In 1970 the Supreme Court decided Dandridge v. Williams, a challenge to a state-level welfare cap that the plaintiffs argued discriminated against larger families. And 1973 the it decided San Antonio Independent School District v. Rodriguez, a challenge to the way that schools are funded through local property taxes that the plaintiffs argued unfairly disadvantaged students from poorer areas. These cases stand for the idea that the poor are not a class protected by the compelling reason standard just by virtue of being poor.

    Fast-forward to 1977, and the Supreme Court is hearing Maher v. Roe (a different Roe). A woman sued the state of Connecticut because it limited state Medicaid benefits for first-trimester abortions to those that were “medically necessary.”

    Susan Roe’s attorney argued that the state was regulating the sacrosanct first-trimester abortions by regulating the funds poor women used to get them. But conservatives argued, brilliantly, that the state of Connecticut did not in any way inhibit a woman from getting an abortion in the first trimester. All it did was decline to pay for it unless it was “medically necessary.”

    Pair this with the Dandridge and San Antonio School District decisions (the poor are not a protected class), and you have a devastating precedent separating the abortion question into two parts. The first part is the right to an abortion itself, still solidly protected under Roe v. Wade. The new second part is access to abortion. Maher v. Roe, and the funding cases that came after it, firmly established that, while the government can’t stop you from getting an abortion outright, it can make it harder to get one by declining to help pay for it.

    This cleared the way for the Hyde Amendment in 1976, which prohibited use of federal Medicaid funds to perform abortions except to save the life of the mother or in cases of rape or incest. The Supreme Court upheld the amendment saying that a woman’s constitutional right to an abortion did not carry with it “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”

    Roe is further weakened, vagueness ensues

    Abortion rights took another blow in a 1992 case called Planned Parenthood of SE Pennsylvania v. Casey. After conservatives took an axe to abortion access for the poor, the pro-choice movement was braced for the Court to overturn Roe altogether, a mere 19 years after it had been decided. It didn’t, to the relief of pro-choice supporters — relief that proved to be short-lived.

    Casey is a long, extremely confusing decision, because there was no clear majority. It rejects outright Blackmun’s trimester system and puts in its place a new test. Pre-viability, the government cannot place an undue burden on a woman’s right to an abortion — but the first trimester is no longer untouchable because “undue burden” is never defined. This is just the sort vague language that conservatives wanted, because it gives them wiggle room for regulation that didn’t exist under the concrete system after Roe.

    Casey allows the government to express a preference, through regulation, for the carrying of a fetus to term from conception rather than after the first trimester. Now the only untouchables left are a woman’s rights to an uninhibited abortion if her life or health are at risk due to the pregnancy, or if the pregnancy is the result of rape or incest.

    The ‘partial-birth abortion’ debate and another nail in Roe’s coffin

    The most recent attacks on Roe happened in a pair of cases over the issue of late-term, or “partial-birth,” abortions. These are uncomfortable procedures to discuss and conservatives used this ick factor to their advantage. In 2000 a case came before the Supreme Court called Stenberg v. Carhart.

    The suit challenged a Nebraska statute that banned any partial-birth abortion unless it was necessary to save the life of the mother. A bitterly disputed decision, within a sharply divided Court, struck down the statute as unconstitutional because it placed an undue burden on the right of a women to seek an abortion and because it contained no exception to protect the health of the mother. The pro-choice movement again breathed a sigh of relief.

    Congress, in response to the Stenberg decision, enacted the Partial-Birth Abortion Ban of 2003. It said that “[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion … is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” There was no evidence offered to support the truth of that statement, so the law was held unconstitutional by several circuit courts.

    Then, in 2005 Justice Sandra Day O’Connor retired from the Supreme Court and was replaced by Justice Samuel Alito. Conservatives saw their chance and appealed those circuit decisions to a newly conservative-leaning Supreme Court in a case called Gonzales v. Carhart.

    This time things didn’t go so well for the pro-choice movement.

    The Court upheld the Partial-birth Abortion Ban as constitutional, disagreeing with its decision a mere seven years earlier. This means that partial-birth abortions are now completely illegal, but what’s worse, abortion restrictions must no longer contain exceptions for the health of the mother, because there is no medical consensus as to what the safest option is. According to Justice Kennedy, since there are several options available to a pregnant woman, there is medical uncertainty, so the legislature has the right to decide her fate. Only a woman’s life and her right to terminate a pregnancy in the cases of rape or incest are absolutely protected.

    What abortion rights look like today

    Fast-forward again to 2013, and Texas has just enacted the most draconian in a long list of abortion restrictions, which includes:

    a mandatory waiting period of 48 hours
    a flat ban on late-term abortions
    a mandatory ultrasound, which the woman must be shown
    a flat ban on abortions after 20 weeks of pregnancy (counted from the date of the woman’s last period, not from conception)
    requirements that any doctor performing an abortion must have admittance privileges at a local hospital
    requirements that any place which provides abortion be an ambulatory surgical center
    a restriction on drug-induced abortions rather than surgical abortions

    In 2011 there were 44 abortion providers in Texas, the second-most populous state in the United States at 26 million people. As a result of these restrictions, the last of which will take effect in September of this year, there will be five. That is one abortion provider per 2.62 million women.

    The whole line of cases after Roe were plain attacks on abortion rights and access to abortion though denial of state and federal funding to those seeking help, all of which represents something very insidious. Because, in spite of all of these cases and restrictions, the rich, and even middle class in this country, are going to be able to take time off of work, travel to a licensed provider, and procure a safe, legal abortion.

    The people most affected by these restrictions are the poor and underprivileged, often without reliable transportation, and often without the ability to take time off of work to travel the sometimes hundreds of miles to the nearest legal abortion provider. These people, who have no lobbyists in Washington, D.C., and no voice on the national stage, are the ones being harmed by laws passed by Republicans to keep favor with a rabidly conservative base.

    Amy Hagestrom Miller, CEO of Whole Woman in Texas, was forced to close several of her clinics under the new regulations. In a March 5th interview, she told Rachel Maddow the stories of the poor women whom she sees and can no longer help. They are going over the border into Mexico to get drugs without warning or dosage labels. They are sticking coat hangers and other objects into their vaginas to self-dilate their cervixes in a desperate attempt to self-induce. They are douching with Coke or Lysol or asking their partners to beat them in an effort to terminate an unwanted or dangerous pregnancy.

    Remember, there is no longer a requirement that women be allowed an abortion to save her health.

    A perfect example is Judge Hovland of the District of North Dakota’s recent decision about that state’s six-week abortion ban. As soon as the decision was issued, every major news outlet, including ABC News, ThinkProgress, NPR, The Washington Times, and many others carried a story about it saying that Judge Hovland overturned the ban as unconstitutional under Roe v. Wade because it tries to ban abortions pre-viability. But that is only part of what he said, and it wouldn’t be enough to decide constitutionality. He says, quite plainly, “H.B. 1456 clearly prohibits pre-viability abortions in a very significant percentage of cases in North Dakota, thereby imposing an undue burden on women seeking to obtain an abortion.”

    But that “undue burden” language comes from Casey, not from Roe. If this had been unconstitutional under Roe, we would have been talking about trimesters, not undue burdens, and any ban before 13 weeks would never even have been considered as legislation. This is an example of media outlets either, a) dumbing things down and not treating us like intelligent adults, or b) being lazy and not doing adequate research.

    So next time you read, see or hear someone say that Roe is the law on abortion, tell them to think again.

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