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Roe v. Wade and the Real World

"It's not what they know that's the problem; it's what they know that isn't so." Mark Twain, Will Rogers, or G. K. Chesterton are all supposed to have said this. Whoever got that quote going, it's a pretty good observation about part of the human condition.

In the three decades since Roe v. Wade, quite a few ideas have been repeated so often that they're often accepted as facts.

Recently, members of Congress and the media received a series of postcards called Roe Reality Checks. These postcards came from the U.S. Conference of Catholic Bishops. Secretariat for Pro-Life Activities, with help from the Knights of Columbus.

Here's a summary of the Roe Reality Checks, with a few comments thrown in:


Idea: "High Court Rules Abortions Legal the First 3 Months." (New York Times, January 23, 1973)

Fact: Abortion is legal in the first three months of pregnancy, and the other six. Right up to birth. The Supreme Court's Roe v. Wade legalized abortion for any reason or no reason at all in the first trimester. In the second trimester, abortion may "regulate the abortion procedure in ways that are reasonably related to maternal health." The Supreme Court graciously allowed prohibitions on abortion, unless the mother's health was involved.

That sounds okay, until you look at the Supreme Court's companion case to Roe v. Wade, Doe v. Bolton. Doe v. Bolton said that the mother's health "health" covered: "all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient." In other words, if a doctor said that an 8-months pregnant woman was sick of being pregnant, aborting her baby would be legal.

Roe v. Wade and Doe v. Bolton made abortion legal for almost any reason through the 9th month of pregnancy.n abortion for any reason during any stage of her pregnancy


Idea: Most women have their babies killed because of their health or "fetal health problems," or because of rape or incest.

Fact: Very few abortions are done for these reasons.

An Alan Guttmacher Institute survey says that women give these as the main reason for their abortion:

  • 21% "unready for responsibility"
  • 21% "can't afford baby now"
  • 16% "concerned about how having a baby could change her life"
  • 12% "has problems with relationship or wants to avoid single parenthood"
  • 11% "is not mature enough, or is too young to have a child"
  • 8% "has all the children she wanted, or has all grown-up children"
  • 3% "other"
  • 3% "woman has health problem" (physical or mental)
  • 3% "fetus has possible health problem"
  • 1% "rape or incest"
  • 1% "husband or partner wants woman to have abortion"1
  • 1% "doesn't want others to know she has had sex or is pregnant"
  • less than 0.5% "woman's parents want her to have abortion"


Idea: U.S. abortion law has the support of most Americans.

Fact: Most Americans oppose it. A recent Harris Interactive poll (Harris Poll #18, March 3, 2005) claims 52% of Americans are for Roe v. Wade, and 47% oppose it. To get that result, the poll described Roe as "the U.S. Supreme Court decision making abortions up to three months of pregnancy legal."

In fact, Roe made abortion legal through all 9 months of pregnancy.

The same poll showed that 72% of Americans said abortion should be illegal in the second three months of pregnancy, and that 86% said abortion should be illegal in the last three months of pregnancy.

If people knew more, support for killing babies during the first three months might slip. A 2004 Zogby International poll showed that 61% of Americans said abortion should be illegal after the fetal heartbeat has begun. Our hearts start beating in the first month of pregnancy.


Idea: Roe v. Wade said the Constitution includes a right to abortion.

Fact: Even legal commentators who support legal abortion have said that Roe is not good constitutional law.

  • Roe v. Wade is "a very bad decision.…because it is not constitutional law and gives almost no sense of an obligation to try to be." - John Hart Ely, Yale law professor
  • As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible…. [It is] one of the most intellectually suspect constitutional decisions of the modern era." - Edward Lazarus, former clerk to Justice Blackmun (who authored Roe)
  • "Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion." - Benjamin Wittes, Washington Post legal affairs editorial writer
  • "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." - Laurence Tribe, Harvard law professor


Fact: Supreme Court justices have criticized Roe v. Wade

  • "I find nothing in the language or history of the Constitution to support the Court's judgment" in Roe v. Wade.1 - Justice Byron White
  • "This Court's abortion decisions have already worked a major distortion in the Court's constitutional jurisprudence….no legal rule or doctrine is safe from ad hoc nullification by this Court … in a case involving state regulation of abortion." - Justice Sandra Day O'Connor
  • Roe v. Wade "destroyed the compromises of the past, [and] rendered compromise impossible for the future … [T]o portray Roe as the statesmanlike 'settlement. of a divisive issue…is nothing less than Orwellian." - Justice Antonin Scalia
  • Roe v. Wade "was grievously wrong." - Justice Clarence Thomas
  • "Roe v. Wade…ventured too far in the change it ordered and presented an incomplete justification for its action." - Justice Ruth Bader Ginsburg


Idea: The U.S. abortion rate is fairly low.

Fact: It is one of the highest among the developed countries.

In 1973 the Supreme Court in Roe v. Wade deemed "every [abortion] law - even the most liberal - as unconstitutional." (The Associated Press, "Ginsburg: Roe decision seemed 'not the way courts generally work'," March 11, 2005 (quoting Supreme Court Justice Ruth Bader Ginsburg))

  • The U.S. has the highest abortion rate in the western world, and the third-highest of all developed nations worldwide. (The Alan Guttmacher Institute, "Abortion in Context: United States and Worldwide," Issues in Brief, 1999 Series No. 1 (1999))
  • There are 1.31 million induced abortions annually in the U.S., or 3,500 every day. (The Alan Guttmacher Institute, "Abortion Incidence and Services In the United States in 2000," Perspectives on Sexual and Reproductive Health, Vol. 35, No. 1 (Jan/Feb 2003))
  • 24.5% of all U.S. pregnancies end in abortion


Idea: Roe v. Wade has the support of most American women.

Fact: Most American women don't support Roe v. Wade.

A national survey of women published by the Center for Gender Equality showed that "only 30% think abortion should be generally available." ("Progress and Perils: How Gender Issues Unite and Divide Women, Part Two," Center for Gender Equality, April 7, 2003)

Most women say abortion should be very limited or never allowed:

  • 17% said abortion should never be permitted
  • 34% said abortion should be permitted only in cases of rape, incest, and to save the woman's life

"Keeping abortion legal" was ranked 11th in a list of 12 "women's" issues. "More girls in sports" came in 12th.


Idea: Most abortions kill babies before their organs are working.

Fact: A huge vast majority are done after the baby's heart started beating.

Our hearts start to beat about 21 or 22 days after conception.

77% of aborted babies in the United States are killed much later than this.


Idea: U.S. abortion law hasn't encouraged abortion as a method of birth control.

Fact: Nearly half of all abortions are performed on women who have already had at least one.

In 1973 Roe v. Wade legalized abortion throughout pregnancy, for virtually any reason.

Today, 48% of women having an abortion in the United States have had at least one previous abortion. Some states have a much higher rate.

In Maryland, for example, 71.4% of those having an abortion have already had at least one. 16.4% have had at least three prior abortions.


Idea: Abortion is legal only when the fetus is in the womb.

Fact: This is what the partial birth abortion debate was about. Even a child who is partially-born can be legally aborted under Roe v. Wade.

Partial-birth abortion kills a fetus during the process of delivery.

At first, abortion providers said it was rare, and used only on women whose lives were in danger or whose fetuses were damaged.

But Ron Fitzsimmons, then the Executive Director of the National Coalition of Abortion Providers, admitted he had "lied through my teeth." ("An Abortion Rights Advocate Says He Lied About Procedure," The New York Times, A11 (February 26, 1997))

He admitted that most partial-birth abortions are not done for "extreme circumstances" but are "primarily done on healthy women and healthy fetuses." ("Medicine adds to debate on late-term abortion," American Medical News, American Medical Association (March 3, 1997))

In 2000, the Supreme Court said states can't ban partial-birth abortion: even if the state allows the ‘save the mother's life. exception.

The Court said such a ban violates "the woman's right to choose" established by Roe v. Wade. (Stenberg v. Carhart, 530 U.S. 914, 929-30 (2000))


Idea: Overturning Roe v. Wade will automatically make abortion illegal in the U.S.

Fact: Overturning Roe may make it possible for states to decide their abortion policies through the democratic process in each state.

This certainly does not mean an end to abortion. All states permitted abortion to save the mother's life, and some permitted abortion in additional circumstances. Then Roe v. Wade. Roe deemed "every [abortion] law - even the most liberal - as unconstitutional." (The Associated Press, "Ginsburg: Roe decision seemed 'not the way courts generally work'," March 11, 2005 (quoting Supreme Court Justice Ruth Bader Ginsburg). See also Linton, 13 St. Louis U. Pub. L. Rev. at 27 (stating that, at the time Roe was decided, "[n]o State allowed unrestricted abortion throughout pregnancy, as Roe effectively does"))

After Roe v. Wade, no state can ban any abortion at any time during pregnancy.

Overturning Roe would not end abortion. It would take the decision about whether or not abortion is legal from five of nine Supreme Court justices and let citizens in each state decide.


Idea: Roe v. Wade only affects a woman's  right to kill her baby. It is not concerned with other people's right to kill.

Fact: Roe has often been used by state and federal judges to put people who are already born in danger.

  • 1986: Relying on Roe, the Supreme Court invalidated a law intended to ensure care for children born alive during attempted abortions.
  • 1983: A U.S. district court invalidated a federal regulation to prevent medical neglect of handicapped newborns in hospitals receiving federal funds. The court said the regulation may "infringe upon the interests outlined in cases such as … Roe v. Wade."
  • 1980: A New York court cited Roe in a "right to die" case, arguing that the "claim to personhood" of a terminally ill comatose patient "is certainly no greater than that of the fetus."
  • 1993: A Michigan judge cited Roe in dismissing criminal charges against Jack Kevorkian and declaring that the state law against assisted suicide was unconstitutional.
  • 1996: The U.S. Court of Appeals for the Ninth Circuit relied heavily on Roe and its successor, Planned Parenthood v. Casey, in finding a constitutional "right" to assisted suicide.

Although some of these ruling were changed or reversed, they all "show how Roe v. Wade has been used to argue that ideas of privacy and liberty can trump life itself - after as well as before birth." (USCCB)


Idea: Abortion is standard medical practice. Religious hospitals and some physicians are the only ones who refuse to provide it.

Fact: Abortion is outside mainstream medicine. Even abortion advocates acknowledge this.

  • 86% of all U.S. hospitals whether religious or secular, public or private, do not participate in abortions. (Stanley K. Henshaw, "Abortion Incidence and Services in the United States, 1995-1996," 30 Family Planning Perspectives 263, 268 (Nov./Dec. 1998), available at journals/3026398.pdf.)
  • 71% of abortions in the United States are performed in free-standing abortion-dedicated clinics. Only 5% are performed in hospitals, 2% in physicians. offices and 22% in other kinds of clinics. (Lawrence B. Finer and Stanley K. Henshaw, "Abortion Incidence and Services in the United States in 2000," 35 Perspectives on Sexual and Reproductive Health 6, 12 (table 5) (Jan./Feb. 2003), available at
  • A New York Times Magazine article reports, "The overwhelming majority of abortions are performed by a small group of doctors. (Some 2 percent of OB-GYN's carry the burden, performing more than 25 per month)." (Jack Hitt, "Who Will Do Abortions Here?," The New York Times Magazine, 20 at 23 (Jan. 18, 1998))

Physicians for Reproductive Choice and Health (PRCH) admits that the medical community looks down on abortion providers. PRCH says one of its "primary strategic goals is to eradicate the stigma that has become attached to abortion and abortion providers within mainstream healthcare." (Physicians for Reproductive Health and Choice, 9 Choice Notes 1 (June 2004), available at


Idea: Roe v. Wade empowers women. Now they can choose freely.

Fact: Legalized abortion made it easy for others to pressure women into having abortions.

High abortion rates are not associated with freedom. They are associated with "lack of financial and social resources" and "lack of control over one's life." (Stanley K. Henshaw and Kathryn Kost, "Abortion Patients in 1994-1995: Characteristics and Contraceptive Use," Family Planning Perspectives, vol. 28, no. 4, July/August 1996, pp. 140-158, at 147)

Women who had abortions showed that many women feel pressured by the baby's father, according to an on-line survey. 85% of fathers offered no encouragement to continue the pregnancy.

When women said they wanted to continue the pregnancy, the fathers. dominant reactions were:

  • Slightly Upset 60%
  • Mad 38%
  • Very Angry 43%
  • Happy7%.

73% of these fathers suggested an abortion. (Survey conducted by host of, a pro-choice, post-abortion support site. Survey available at

Having an abortion didn't help the women who were feel better. They experienced:

  • Regret 83%
  • Guilt 80%
  • Loss 79%
  • Depression 70%
  • Anger 62%

Obviously, some women experienced more than one of those reactions.

Even a website which encourages women to consider abortion "so they can freely decide if it is their choice"3 elsewhere posts personal stories describing pressure, coercion or abandonment by the baby's father. (The stories of Serena, Barbara, and Natalie at For more, see and


The "Roe Reality Checks" series ends by citing Cardinal William H. Keeler's January 6 letter to U.S. Senators. Each of his points was documented throughout this series:

  • "For over three decades, Roe has sparked more informed criticism and public resistance than any other court decision of the late 20th century."
  • "Even legal scholars who support abortion have criticized Roe for not being grounded in the U.S. Constitution."
  • "Further, in 2000, the Supreme Court relied on Roe to rule that the gruesome and inhumane practice of partial-birth abortion must be constitutionally protected."

In the words of a former law clerk to Justice Blackmun, the Roe opinion's author, Roe is a poor choice for a "litmus test" for judicial nominees, for "as a matter of constitutional interpretation, even most liberal jurisprudes – if you administer truth serum – will tell you it is basically indefensible."

Cardinal Keeler put it this way: "By any measure, support for the Supreme Court's 1973 Roe v. Wade decision is an impoverished standard for assessing judicial ability."

The complete "Reality Check" series can be found at:

Brian H. Gill

Brian H. Gill, Editor, Sauk Centre K of C Bulletin

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This page last updated December 19, 2010