ECLECTIC RANT: Roe v. Wade: Still Controversial After 40 Years

By Ralph E. Stone
Friday March 29, 2013 - 08:47:00 AM

On January 22, 1973, the Supreme Court in Roe v. Wade legalized abortion. In this case, Jane Roe, a pseudonym for Norma Leah McCorvey (née Nelson), brought a class action suit challenging the constitutionality of a Texas criminal abortion laws, which forbids procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. The Supreme Court stated that state criminal abortion laws "that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy." 

Roe established a "trimester" threshold of state interest in the life of the fetus corresponding to its increasing "viability" (likelihood of survival outside the uterus) over the course of a pregnancy. States were prohibited from banning abortion early in pregnancy but allowed to impose increasing restrictions or outright bans later in pregnancy. 

In the 1992 case of Planned Parenthood v. Casey, which upheld the "central holding" in Roe, but replaced the trimester system with the point of fetal viability (whenever it may occur) as when a state's right to override the woman's autonomy begins. Casey also lowered the legal standard to which states would be held in justifying restrictions imposed on a woman's rights. 

In an ironic twist, McCorvey/Roe in 1994 converted to Christianity and expressed remorse for her part in the Roe v. Wade decision. She later worked for the pro-life movement, such as Operation Rescue now Operation Save America, which conducts mass protests at abortion clinics to promote the pro-life cause. 

The Roe decision is significant when you consider that by age 45, about half of American women will have an unintended pregnancy and about four in ten will terminate her pregnancy. Twenty-two percent of all pregnancies (excluding miscarriages) end in abortion. 

But since the Roe decision, there as been a decades-long "Roe Rage" or "Roe Backlash" against the decision. In the last two years alone, 30 states have passed 135 laws restricting access to abortion. For example, twenty-one states have adopted laws restricting insurance companies from paying for abortions. 

The federal Affordable Care Act maintains the status quo of no federal funding for abortions, except in cases of rape, incest or when the life of the woman is endangered. A federal judge recently wrote "the express language does not provide for taxpayer funded abortion. That is a fact and it is clear on its face." Insurers selling their plans on the state exchanges taking effect next year must segregate the premiums they collect for abortion coverage, a definite built-in disincentive. In addition, under the Act, states can enact stricter rules of their own. So far, nineteen states bar or restrict insurance companies on their exchanges from covering abortion. 

North Dakota is taking Roe rage to the extreme by taking a step toward outlawing abortions altogether by passing what has been termed a "personhood resolution," that states a fertilized egg has the same right to life as a person. If passed by the voters, the wording would be added to the state's constitution. In light of Roe and subsequent decisions, the resolution probably violates the U.S. Constitution. But if the matter comes before the present U.S. Supreme Court, who knows how it will rule. 

On the other side of the coin, Washington state is considering legislation, which would mandate insurance companies to pay for abortions. The proposed Reproductive Parity Act would require insurers in Washington state who cover maternity care -- which all insurers must do -- to also pay for abortions. The bill passed the state House, but must now pass the state Senate and, if it does, then goes to a popular vote. 

And in California, AB 154 was introduced, which would expand the number of trained health professionals who can provide early abortion cases. AB 154 would authorize trained nurse practitioners, certified nurse midwives, and physician assistants to provide early abortions. Presently, women in 52 percent of California counties do not have an accessible abortion provider. If passed, women in rural areas will not have to travel great distances to find a provider.  

Some critics of the Roe v. Wade decision argue that the states should have worked out delicate matters like abortion for themselves.  

The broad ruling in Roe stopped activity in state legislatures, created polarization and some would say, damaged the authority of the court. But in "Backlash to the Future? From Roe to Perry," the authors dispute this so-called Roe Rage or Roe Backlash. “Before Roe,” they wrote, “despite broad popular support, liberalization of abortion law had all but come to a halt in the face of concerted opposition by a Catholic-led minority. It was, in other words, decidedly not the case that abortion reform was on an inevitable march forward if only the Supreme Court had stayed its hand.” Thus, it may have been time for the Supreme Courts to step in to vindicate the rights of the minority even at the risk of a rage or backlash. 

Forty years later, the Roe v. Wade decision still ignites rage and a backlash. The opponents of legalized abortion appear to be gaining ground and as a result, the cause of women's reproductive rights are set back. Do we really want to go back to those dark days of back alley abortions with a coat hanger or knitting needle, causing injury and sometimes even death?