Roe vs. Wade

Once again, we are about to witness the traditional “advise and consent” function the US Senate performs for the President in the confirmation process of a new Supreme Court Justice. As has been the case with every Supreme Court nominee for the last 45 years, the question of abortion has arisen, and may possibly dominate the proceedings. The 1973 ruling in Roe vs. Wade is always the focal point of questions on this issue and the nominee is always asked what he/she thinks about this case.  Since the topic of abortion continues to be hotly-debated both during an election year and whenever there is a Supreme Court vacancy, we decided to explore just how relevant the Roe vs. Wade case still is to that debate today.

There are some interesting historical facts about Roe vs. Wade that aren’t usually mentioned in present day discussions. First, who are Roe and Wade? To begin with, Jane Roe is a pseudonym, there was no actual person named Jane Roe at the time the case was brought. The real name of the plaintiff in this case was Norma McCorvey (1947 – 2017), a resident of Texas. A legal pseudonym was given to Ms. McCorvey to protect her privacy during the legal proceedings. Henry Wade (1914 – 2001) was the District Attorney in Dallas, Texas at the time. The reason for this case was that Ms. McCorvey (at the age of 21) became pregnant with her third child and wished to have an abortion. At the time (1969), abortion was illegal in the state of Texas. The Texas abortion law had been on the books for more than 100 years with no substantive changes in its language since 1857. After initially asserting a false claim of rape to try and get around the Texas law, Ms. McCorvey was connected with two attorneys who brought her case to court. They asserted that the Texas law deprived her of her constitutional right to personal privacy. During the time the case wound its way through the legal system, Ms. McCorvey gave birth to a baby who was eventually adopted.

In the late 1960’s, the Texas abortion law was by no means unusual or out of the ordinary. In fact, abortion was illegal in 49 states at the time, with most of the states having laws that banned abortion since the late 1800’s¹. With state abortion laws being similar in language throughout the US and unchanged for nearly a century, it is clear why the stakes of this case were enormous. When Ms. McCorvey’s lawsuit went to the Texas Federal District Court in 1970 it was under the name (pseudonym) Jane Roe. A three judge panel of the Texas District Court did find its longstanding abortion law to be unconstitutional, however it did not order a stop to its continuing enforcement (in legal terms, it did not issue an “injunction”). As a result, District Attorney Henry Wade (the defendant in the case) vowed to continue prosecuting doctors who performed abortions in Texas. The plaintiff, Jane Roe, then appealed to the US Supreme Court for an injunction against the Texas law which was denied by the District Court.

It took well over two years for the case to finally be heard by the Supreme Court and a decision rendered. The Court voted 7-2 to grant the injunction sought by Jane Roe, reversing the lower court decision. The Court also struck down the Texas law in its entirety and put a new legal framework in place limiting the period during pregnancy when a state could ban abortion. The opinion of the Court was written by Justice Harry Blackmun. It is an exceptionally well-researched document that traces laws, moral attitudes, and medical practices relating to abortion all the way back to Greek and Roman times. One common theme Blackmun found throughout this historical analysis was that there was a clear difference in attitude toward abortion during the periods of pregnancy before and after the fetus was considered to be “living” or “formed”. There was a name given to this point of transition called “quickening”. It was generally defined by the first instance of the mother and/or physician being able to feel autonomous movement of the fetus. The earliest abortion legislation typically was drawn around the point of quickening, with little or no regulation of abortion in the period before quickening, and a potentially severe penalty afterwards (though never the same as the penalty for homicide). This concept formed the basis of the Roe vs. Wade ruling by the court. In a variation on the theme of two time periods during pregnancy having different legal contexts (before and after “quickening”), the Court came up with a legal framework that divided pregnancy into three equal periods defined as “trimesters”. A different set of abortion rules would apply during each of the three trimesters of a pregnancy. In the first trimester, states could not restrict abortions. In the period beyond the first trimester, there could be some state regulation on abortion, principally to protect the health of the mother, but abortion itself could not be banned until the point of fetal viability outside the womb.

In the early 1970’s, the boundary between the 2^nd and 3^rd trimester happened to fall right on the then medically-accepted point of fetal “viability” (with the assistance of life-supporting medical technology of the era). This was a convenient coincidence for the trimester legal framework since state laws could be written to definitively ban abortion in the 3^rd trimester, which happened to coincide with the point of fetal viability. However, the Court recognized this convenience would only last for a brief period in history, given the inexorable march of science and medical technology, and purposely left vague in its ruling the precise time of viability. In doing so, the Court created a malleability in the ruling allowing the regulated trimester periods to be adjusted in the future without having to re-litigate the case. Also, while Blackmun did reference the philosophical debate about when life actually begins, he steered the Court clear of rendering an opinion on this aspect of abortion. In Blackmun’s own words: “…We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer…”.

One reason the Court chose not to base its ruling on the question of when life begins was an unresolved legal dilemma that had existed throughout the history of abortion law, and that was in plain view in the Texas case currently before them. If the embryo or fetus was considered a “human life” from any point after conception, why are the legal penalties for ending that life by way of abortion not the same as when one adult murders another? The penalty for violating the pre-existing Texas abortion law was 2 – 5 years in prison. That hardly compares to a sentence of life in prison or the death penalty for homicide. In addition, the penalty was only imposed on the abortion provider. The mother, an obvious “accomplice”, received no penalty at all.

Roe vs. Wade was not a unanimous Supreme Court decision. There were two dissenting justices, one of them a future Chief Justice. William Rehnquist, who would become Chief Justice 13 years later, wrote the dissenting opinion. He vehemently disagreed with the Court stepping out of its traditional role by “legislating” a solution (the trimester framework). But his main objection to the ruling was that the Court did not use the traditional legal test to determine when a “compelling state interest” supersedes an individual right of privacy. This was a key element of the “Due Process” clause in the 14^th amendment upon which much of Jane Roe’s case rested. In his own words “… Unless I misapprehend the consequences of this transplanting of the “compelling state interest test,” the Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it …” Rehnquist also disagreed with how the Court stretched the language of the 14^th amendment to discover a right of privacy (i.e. right to have an abortion) asserted by Jane Roe.  His exact words on this point were “… To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment…”  He pointed out that the 14^th amendment was passed in 1868 (11 years after the Texas abortion law was passed), and for 100 years afterward there was no claim that its meaning extended as far as Jane Roe was asserting. He questioned: What had changed by the year 1970 that now justified this claim?  We believe the answer to that question is much more likely related to the social attitudes of the time rather than anything else.

This brings us to the question of the relevancy of Roe Vs. Wade today. Given that this case is brought up by name (loud and often) every time a Supreme Court vacancy arises, one would think it continues to be the defining legal precedent. In fact, a number of Court cases in the past 45 years have largely replaced Roe Vs. Wade as the legal standard of the day. The most prominent of them occurred in 1992 (20 years after Roe vs. Wade) in Planned Parenthood vs. Casey. In an acknowledgement that medical technology had shortened the gestation period needed to achieve fetal “viability” outside the womb, this case dispensed with the trimester system as a legal framework for determining when and how states can regulate abortion. There were now only two legal contexts: before viability and after viability. States could impose restrictions up to and including prohibition of abortion in the period after viability, similar to the 3^rd trimester in Roe vs. Wade. However, while abortion would still be legal in the period before viability, the states could now impose restrictions during the entirety of that period, so long as they didn’t impose “undue burden” on anyone seeking an abortion. This shifted the debate more toward the moving target of viability as the determining factor in how the law would continue to evolve. In the Roe vs. Wade opinion, viability was written as being at 28 weeks (3^rd trimester). At the time of Planned Parenthood vs. Casey in 1992, viability was considered to be at 23 weeks. Today, some state laws prohibit abortions beyond 20 weeks. One state, Mississippi, has passed a law banning abortions after 15 weeks although it is presently on hold pending a legal challenge.

The most interesting recent legal action on abortion took place this past May when the Governor of Iowa, Kim Reynolds, signed the most restrictive abortion legislation since the period before Roe vs. Wade. The new Iowa law bans most abortions once a fetal heartbeat is detected. In many ways, this is very similar to the historical concept of “quickening”. As mentioned earlier, the point of “quickening” in years past was determined by the first detectable autonomous movement of the fetus. Of course, the autonomous movement of a fetal heartbeat begins long before an arm or leg movement can be felt. Since the heartbeat itself could not be felt or detected with the tools of the time, “quickening” equated to around 16-18 weeks. Today, a fetal heartbeat can be detected as early as six weeks, meaning abortion would be banned under this new law before some women are even aware they are pregnant.  It didn’t take long for this law to be challenged in court (by Planned Parenthood). An Iowa judge issued a temporary injunction in June preventing the new law from going into effect while the suit proceeds through the legal system. This case will be very interesting to follow because the new law takes an entirely different tack from the “viability” line of reasoning in determining the point at which abortion is illegal. At the same time, it reenergizes the debate regarding the fetus being a “life” with its own set of rights and legal protections².

One obvious conclusion to all of this is that there is little left of the original Roe vs. Wade case that stands on its own today. “Viability” and “Undue Burden” have replaced “Trimester” and “Privacy” as the key legal terms³.  Technology and medical science will inevitably continue to shorten the period to viability, effectively allowing state laws to reduce the “legal” abortion timeframe to a point where it nearly vanishes. Additionally, laws like the new Iowa “heartbeat” law, if it stands, could completely eliminate viability as a legal decision point. While viability is a subjective concept open to some debate, a heartbeat is definitive – it is either detectable or it isn’t.

As a postscript, it is interesting to note that by the mid-1990’s, Norma McCorvey became an anti-abortion advocate and never really played the role of “crusader” for the cause that made her famous. She also claimed to be a “pawn” of the two lawyers who took her case in 1970 so they could advance their own careers and make names for themselves. As we watch and listen to the next iteration of the abortion discussion in the forthcoming Senate confirmation hearings for Brett Kavenaugh, we will wonder how much each Senator really knows about the history of Roe vs. Wade.

 ¹Hawaii was 1^st to legalize abortion– but only for Hawaii residents. New York was 2^nd – legalized in 1970 – open to all residents.

²Assigining “rights” to the fetus at any stage of pregnancy raises an enormous set of legal questions, not the least of which is whether destruction of the fetus constitutes criminal homicide. Enshrining into law that life begins with the detection of a heartbeat (or at conception) without first having a supporting legal framework to accommodate the unique circumstance of the fetus would likely create courtroom chaos.

³After the 1992 case of Planned Parenthood vs. Casey, “trimester” no longer had meaning as a legal term in abortion law. However, the term has lived on to this day in other contexts, namely the medical field and in discussions of pregnancy.