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:
1
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
2
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"
3
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.
4
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
5
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
6
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
7
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.
8
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.
9
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.
10
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))
11
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.
12
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)
13
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
www.guttmacher.org/pubs/ 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
www.guttmacher.org/pubs/journals/3500603.pdf)
- 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
www.prch.org/publications/choice_notes/June04_ChoiceNotes.pdf)
14
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
www.afterabortion.com, a pro-choice, post-abortion support site. Survey
available at
www.geocities.com/Athens/Parthenon/1362/surveyresults1.html)
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 www.fwhc.org/stories/story1.htm. For more, see
www.afterabortion.com and www.hopeafterabortion.com/hope.cfm?sel=C18L)
15
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:
www.usccb.org/prolife/issues/abortion/roevwade
Brian H. Gill
Brian H. Gill, Editor,
Sauk Centre K of C Bulletin |