Abortion, Legal and Political Issues

Beginning with its 1973 decision in Roe v. Wade, the U.S. Supreme Court in large measure has defined the contours of the debate over the status of abortion. That landmark decision struck down a 1854 Texas law that criminalized abortion except when necessary to save the woman's life. The Court, by a seven-to-two margin, held that the Texas law violated a woman's fundamental right to decide whether to continue a pregnancy free of governmental interference before the point of fetal viability (i.e., the capacity to live if born). On the same day the Court also struck down a more "modern" 1968 Georgia abortion law that prohibited most abortions but lifted criminal penalties in limited circumstances.

THE COURT DECISIONS

Although the Court ruled that the Constitution places substantial aspects of reproductive liberty beyond the reach of government, abortion continues to play a prominent role in electoral and legislative politics. Literally hundreds of abortion restrictions have been litigated in state and federal courts. Roe has inspired mass celebrations, marches, and protests. Some abortion opponents have resorted to violence and even murder. Abortion politics also has affected a range of other issues, from pregnancy prevention policies at home and abroad to scientific research involving stem cells.

Of course, the legal, political, and social ferment and the practice of abortion did not begin with Roe. Roe cannot be viewed apart from the preceding decades of activism, controversy, and change over not only abortion but also contraception and, more broadly, the status of women. At the time of Roe the Court was just beginning to recognize the right of women to constitutional protection from sex discrimination and social and political movements were beginning to lessen barriers to women's equality.

In light of the nascent state of sex equality, it is not surprising that the Court premised Roe on the fundamental right to privacy found in the guarantee of liberty in the Fifth and Fourteenth amendments rather than in the constitutional guarantee of equal protection (which the Court soon afterward interpreted to protect against sex discrimination). The Roe Court built upon earlier decisions in which it held unconstitutional state laws that criminalized the use of contraception (Griswold v. Connecticut in 1965) or ordered forcible sterilization as punishment for certain felonies (Skinner v. Oklahoma in 1942). The Court rejected the argument that the Constitution protects a right to life from the moment a sperm fertilizes an egg or that the government may prohibit abortion to protect the embryo or fetus in the first stages of pregnancy. Instead, the Court declared the right of women throughout the United States to decide when and whether to have children, free from the risks illegal abortions posed to their health, future fertility, and lives.

THE POLITICAL EFFECTS

The political effect of Roe was to energize opponents of legal abortion while reassuring most supporters that the courts would protect reproductive liberty. Until 1989 the courts invalidated most governmental efforts to restrict abortion, with the notable exceptions of restrictions on public funding and mandatory parental notice and consent laws. Within a decade the two major political parties had divided on abortion (though some individuals break with their parties on this issue), with the Democratic Party supporting Roe and the Republican Party calling for its overruling and the appointment of federal judges specifically to accomplish that end.

In the 1980s President Reagan replaced three of the seven justices in the Roe majority. The issue of reproductive liberty and privacy proved extremely consequential in the last of Reagan's Supreme Court appointments, as prochoice Americans began to realize that Roe was at risk. Reagan first nominated Robert Bork, but the Senate narrowly refused to confirm him, in significant part because of his opposition to any judicially protected right to reproductive liberty, including the right of married couples to use contraception protected in Griswold v. Connecticut. Since Bork's rejection abortion has remained a contested issue in Supreme Court appointments. Nominees routinely attempt to avoid disclosing their views on Roe while communicating support for the Court's decision in Griswold.

By 1992 President George Herbert Walker Bush had made two more Republican appointments to the Supreme Court. Prochoice Americans became more engaged in activism and politics as the Court seemed to be on the verge of overruling Roe. The Court surprised all sides in Planned Parenthood v. Casey by reaffirming, five to four, a narrowed version of Roe. (If Bork had been confirmed, he almost certainly would have cast the fifth vote needed to overrule Roe.) The Casey Court announced that it would continue to invalidate the most onerous abortion restrictions, including husband notification requirements and outright bans. However, the Court no longer would protect a "fundamental right" to reproductive choice and, under a far less protective "undue burden" standard, would uphold many more governmental restrictions.

State legislatures responded to Casey by substantially increasing antiabortion legislation. Congress also became more involved in restricting abortion, contrary to many abortion opponents' pre-Casey position that abortion regulation is the prerogative of state governments. Public opinion polls over the years show majority support for choice and Roe, but the degree of support varies significantly with the way the question is phrased. Elected officials typically are far more antichoice than are their constituents.

At the outset of the twenty-first century Casey remained the prevailing law and the Court by a narrow margin continued to provide some level of meaningful protection. Genuine reproductive choice, though, has been precarious and, for a growing number of women, nonexistent. Abortion services are less available in the United States than at any time since Roe, and antichoice organizations openly pursue an incremental strategy to create "abortion-free" states, including legal restrictions that the courts now uphold, diminished abortion training in medical schools, and harassment and violence directed at abortion providers at home and at work. As in the years before Roe, the women who suffer most from legal and practical obstacles to safe abortion services are those who live hundreds of miles from the nearest provider and lack the resources and ability to travel.

BIBLIOGRAPHY

Balkin, Jack M., ed. 2005. What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision. New York: New York University Press.

Garrow, David J. 1998. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. Berkeley: University of California Press. (Orig. pub. 1994.)

Ginsburg, Ruth Bader. 1985. "Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade." North Carolina Law Review 63(2): 375-386.

Griswold v. Connecticut, 381 U.S. 479 (1965).

Planned Parenthood v. Casey, 505 U.S. 833 (1992).

Roe v. Wade, 410 U.S. 113 (1973).

Siegel, Reva B. 1992. "Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection." Stanford Law Review 44: 261-381.

                                                  Dawn Johnsen