In 1973 the United States Supreme Court issued its decision in Roe v. Wade. Forty years later, while speaking at a symposium at Columbia Law School, Justice Ruth Bader Ginsburg opined that she was not sure that the time had been right for the country’s federal judiciary to legalize abortion. I was surprised that a liberal of the current court would question the rightness or timing of that decision.
The social discussion of the 1960s and 1970s was imbued with an understanding of the horror wrought on women, who, for social or economic reasons, could not afford to raise a child. Perhaps she was 18, and had just gotten admitted to college. Would it be fair to her to abort her opportunities because there was not sufficient information available about birth control? Or what if she was 40, and already had four children, and her husband made barely enough money to feed and clothe a family of six? What could they do if they became a family of seven? The law punished women by forcing them into dirty rooms in back alleys where men with wire hangers or venomous liquids would help terminate the cells that were starting to gel. There was guilt and shame and illness, and it was society’s morals, not society’s interest in public health, that governed what was legal. I remember debating the reasons for and against abortion with my friends, teachers and family.
Then in 1973, the decision came out. I recently reread the opinion of the court in its entirety. I stand in awe of this brilliant tripartite balancing of a woman’s right to privacy against the right of the state to regulate the health and safety of its citizens.
The case came before the Supreme Court because an unmarried, pregnant woman had sued the state of Texas on the ground that the law, which made it a crime to terminate a pregnancy unless the mother would die, was unconstitutional.
Just for a minor peek at how the Court addressed the topic, I quote from the opening paragraphs of Justice Blackmun’s opinion:
“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.”
With this awareness in mind, the Court commenced its discussion on the constitutionality of the Texas statute. It provided an historical overview of abortion from ancient Greece (where “it was resorted to without scruple”), to the common law (which held that abortion was not an indictable offense prior to the “quickening” or first movement of the fetus), to the punitive statutes of the modern era that banned abortion “unless done to save or preserve the life of the mother.”
Thus the Court, in determining that a woman had an unfettered right to make her decision concerning pregnancy during the first three months after conception, did not arrive at its decision in a vacuum. It looked to history, science, medicine, philosophy, religion, and precedential case law to confirm that the Constitution guaranteed a right to privacy. However, it also acknowledged that this right of privacy was not unbridled. After that first trimester, the State could intervene and regulate the procedure to preserve and protect the health of the mother. Further at the point of “viability,” the compelling interest of potential life meant the State “may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”
Why would anyone want to reverse this decision? It legitimized the right of women to have control over their body for a total of 90 days after the joining of a sperm, and an egg. Thereafter, the law of the land held that the state has a right to regulate, legislate and protect its persons. This decision, founded squarely on prior law, took into account the entire package: the person who carried the united egg and sperm, the emerging fetus, and state government.
As Justice Blackmun opined, this is, and will always be, a sensitive and emotional topic. The Court’s decision that balances an individual’s right to make the most private decision of her life against the state’s right to protect the health and welfare of its citizens embraced the Constitution, a law “made for people of fundamentally differing views…” Lochner v. New York, 198 U.S. 45, 76 (1905).
The debate will continue. I hope future courts reaffirm and reaffirm and reaffirm the findings of the Supreme Court in 1973.