Everybody knows that pro-life constitutional lawyers believe that Roe v. Wade was a poor judicial decision. But some may be surprised to find that even many so-called “pro-choice” constitutional lawyers believe that the decision was an imprudent act of judicial activism.
Let’s start with some background on Roe. In 1973, the year that Roe was decided, states had already begun to liberalize abortion laws. Many states had begun to allow abortion in the cases of rape, incest, and health of the mother. Roe challenged a Texas statute that only allowed abortions if the life of the mother was in danger. This is important to distinguish from the health of the mother which includes both physical and emotional health.
The Supreme Court overturned this statute on the basis of a right to privacy. The Constitution is not explicit on the right to privacy and this idea is drawn from the Fourteenth Amendment which says that “nor shall any State deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has interpreted this right to liberty as including the fundamental right to privacy.
One of the reasons that this decision was controversial was that in the past all cases dealing with the right to privacy drew from consensual situations such as marriage or the use of contraception. Abortion deals with the life of a child so it differs from the earlier cases relating to privacy.
The ruling of Roe was extremely broad. It stated that there could be no restrictions on abortion in the first trimester and in the second and third trimesters it could be regulated by the states.
A companion case to Roe was Doe v. Bolton which the justices indicated should be read in tandem with Roe. Doe challenged the Georgia abortion law that had three restrictions on abortion. In order to obtain an abortion a woman had to have a judgment of a doctor that agreed with her decision to abort. This judgment had to be confirmed by two other physicians. Then the abortion had to be performed in an accredited hospital. This law was also struck down by the Supreme Court for being too restrictive.
The ruling of Roe called into question the institutional capacity of the Supreme Court. Those in favor of the court working in this fashion say that it protects the minority view. Those who are against it hold that the Court is ill-suited to make these moral judgment calls when the subject matter is not explicitly stated in the Constitution.
Justice Byron White wrote in his dissenting opinion in Roe,
“I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”
This type of moral decision by the Court created a backlash against Roe by both the pro-life and pro-choice sides. This backlash is what has been called “Roe Rage” by a variety of authors. Pro-choice proponents believe that without Roe, abortion would have continued to become more accessible without the strong backlash that followed in the wake of Roe. Because the court struck down nearly all restrictions on abortion, abortion proponents seemingly received what they wanted. However, this put abortion proponents on the defensive, as opposed to being seen as pushing forward for change. Even Justice Ginsburg believes that Roe was decided poorly saying, “My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”
Because pro-lifers saw this decision as an unconstitutional assault on the rights on the unborn, they immediately began to mobilize and fight back against this decision. The public outrage was strong, and continues to be so. In the past few years, more and more pro-life legislation has been introduced and passed in several different states. In 2011, 70 life affirming provisions were implemented and in 2012, 83 more were added to state codes. In this year, already 69 life affirming provisions have been passed by state legislatures. Pro-choice advocates have had to stay on the defensive and it’s becoming hard for them to keep up.
About the Author
Erin Stoyell-Mulholland is a junior at the University of Notre Dame, where she is president of Notre Dame’s Right to Life group. She hopes to pursue a full time career in the pro-life movement. Follow Erin on twitter @erin_sto_mo and read her blog at thenewprolife.blogspot.com