Jan

18

2013

Joe Carter|3:25 AM CT

9 Things You Should Know About Roe v. Wade

On the fortieth anniversary of the landmark abortion decision, Roe v. Wade, a new poll shows the majority of people under 30 can't name what the case was about. Only 44 percent among those ages 18 to 29 know it dealt with abortion. In an attempt to help fill that knowledge gap, here are 9 things young people—and everyone else—should know about Roe:

1. Contrary to the popular conception, Roe does not limit abortion to the first trimester but institutionalized abortion on demand in all 50 states. As the Supreme Court wrote in the 1992 case Casey v. Planned Parenthood, "we reject the trimester framework, which we do not consider to be part of the essential holding of Roe."

2. Another abortion case that was decided the same day as Roe was Doe v. Bolton. The Court's opinion in Doe v. Bolton stated that a woman may obtain an abortion after viability, if necessary to protect her health. The Court defined "health" as follows:

Whether, in the words of the Georgia statute, "an abortion is necessary" is a professional judgment that the Georgia physician will be called upon to make routinely. We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient. All these factors may relate to health.

As Ramesh Ponnuru has explained,

The 'attending physician'—in real life, very often an abortionist with a financial stake in the decision—can always say that in his medical judgment, the abortion was necessary to preserve the woman's emotional 'health,' especially considered in light of her 'familial' situation. Any prosecution would have to be abandoned as unconstitutional. In other words: The Supreme Court has effectively forbidden any state from prohibiting abortion even in the final stages of abortion.

In the Roe decision Justice Harry Blackmun said that the two opinions—Roe and Doe—"of course, are to be read together."

3. Even legal scholars who agree with legalized abortion have admitted that the reasoning in the Roe decision—which was written by Justice Blackmun—was shoddy. Edward Lazarus, a former clerk for Justice Blackmun, has written that, ". . . as a matter of constitutional interpretation and judicial method, Roe borders on the indefensible." Ruth Bader Ginsburg, who is now herself a Supreme Court Justice, wrote in a 1985 law review article that, "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."

4. The majority of American states were not moving toward liberal abortion laws before Roe. In 1971, on the eve of Roe, legislation to repeal abortion laws was voted down in Colorado, Massachusetts, Connecticut, Illinois, Iowa, Maine, Maryland, Minnesota, Montana, North Dakota, New Mexico, and Ohio.

5. Because of the Roe decision, America is (along with Canada) one of the only Western countries in offering no legal protection to the unborn at any stage of development.

6. In a 1971 resolution on abortion, the Southern Baptist Convention resolved that "society has a responsibility to affirm through the laws of the state a high view of the sanctity of human life, including fetal life." However, the largest Protestant denomination in America had a peculiar definition of sanctity of human life, for the very next sentence called upon Southern Baptists to "work for legislation that will allow the possibility of abortion" under such conditions as 'fetal deformity' and 'damage to the emotional, mental, and physical health of the mother.' Three years later—and two years after Roe codified this position into law—the SBC reaffirmed the resolution. It wasn't until 1980 that the SBC finally condemned abortion as a grave evil.

7. "Jane Roe" was the legal pseudonym for Norma McCorvey the plaintiff in Roe v. Wade. In the 1980s, McCorvey claimed she had been the "pawn" of two young and ambitious lawyers who were looking for a plaintiff with whom they could challenge the Texas state law prohibiting abortion. In the late-1990s, McCorvey was working at a Dallas abortion clinic when the anti-abortion group Operation Rescue moved its offices next door. She says Rev. Phillip Benham, Operation Rescue's national director, started "sharing the Gospel of Jesus Christ" with her. She later became a Christian and committed pro-life advocate.

8. No one knows precisely how many illegal abortions there were before Roe, but in 1981 three researchers estimated a range from "a low of 39,000 (1950) to a high of 210,000 (1961) and a mean of 98,000 per year." In 2009, 784,507 legal induced abortions were reported to the Centers for Disease Control from 48 reporting areas.

9. Slightly more than half (54%) of white evangelicals, according to the Pew Research Center study, favor completely overturning Roe. No other religious group, including white mainline Protestants, black Protestants, and white Catholics, agreed with completely overturning the ruling. In fact, substantial majorities of white Protestants (76%), black Protestants (65%), and white Catholics (63%) say the ruling should not be over turned, the survey found.

Joe Carter is an editor for The Gospel Coalition and the co-author of How to Argue Like Jesus: Learning Persuasion from History's Greatest Communicator. You can follow him on Twitter.

Categories: Current Events
  • http://www.thinkpoint.wordpress.com Steve Cornell

    Thank you, Joe.

    It is deeply disturbing to listen to those who frame abortion positively in relation to a woman's health. And (as the propaganda goes) those who oppose abortion are often depicted as being against women. Nothing could be further from the truth. Those who oppose abortion are the ones who support the health and safety of women. The truth is that the political agendas promoting abortion are careless and heartless toward women. I wonder if these politicians have ever talked with a woman who had an abortion.

    The medical effects of abortion and post-abortion stress disorder indicate that abortion is almost never a good health decision for a woman.
    (see: http://thinkpoint.wordpress.com/2012/11/14/health-care-for-all-women/)

  • Derek Butler

    I believe the US is joined by Canada in its "distinction" for having no bans on abortion at any stage.

  • anonymous

    Point #5 is not true, Canada has no laws on abortion and thus offers no legal protection to the unborn in any stage of development. Other than that, a very compelling article. Thank you for your work in the Gospel.

    • Joe Carter

      Thanks, I've updated the article to include Canada.

      • http://www.covenantcaswell.org John Carpenter

        Should the final phrase in the block quote by Ramesh Ponnuru say, "final stages of pregnancy" rather than "final stages of abortion"?
        Or should a "[sic]" be added if this is an original mistake?

  • buddyglass

    Roe did not limit abortion to the first trimester, but it only guaranteed the right to an abortion during the first trimester. That means states were free to ban abortion after the first trimester. Casey changed the inflection point at which the state's interests outweigh the mothers at the point of viability, but affirmed a woman's right to abort "where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

    Another important fact about Roe (and the other cases): in the absence of a court ruling that found it unconstitutional to *allow* abortion, overturning Roe (and the others) would just return the matter to the states. Still a victory, but it would hardly end abortion in this country. Presumably all blue states and many purple states would continue to allow the practice, and women (of means) wishing to have one would just travel to those states.

    • Joe Carter

      ***That means states were free to ban abortion after the first trimester.***

      Actually, that is the myth I was referring to. States were *not* allowed to ban abortion after the first trimester. They could attempt to put limits on abortion, but because of the "health exception" they could not pass constitutional muster.

      In 2000, the Supreme Court even struck down a state ban on partial-birth abortions. Writing for a 5-4 majority at that time, Justice Breyer said the law imposed an undue burden on a woman's right to make an abortion decision. It wasn't until 2007 that the Court upheld the ban since it does not did not, in their words, "violate a woman's constitutional right to an abortion."

      • buddyglass

        Excluding "health of the mother" Roe didn't prohibit the states from making elective abortion illegal. In fact it expressly allowed it. To the extent the "emotional health" wording in Bolton would subsequently be employed overly broadly *that* case can be seen to have essentially prohibited the states from criminalizing elective abortion, but that's not Roe.

        From the text of Roe:

        "For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

        • Joe Carter

          As I note in point #2, Roe says that a woman may obtain an abortion after viability, if necessary to protect her health and Doe (which Blackmun says must be read together) defines "health" in a way that makes any state ban unconstitutional.

          A handful of states have attempted to enact "bans" on abortion after 20 weeks. But they are merely restrictions since if a doctor says the woman's "health" will be affected, she can have the abortion. The health exemption can be, and has been, used to trump any attempts at banning any type of abortion. (The only exceptions to the ban that have ever been allowed are partial-birth abortions.)

          • buddyglass

            So in that case Roe's necessary but not sufficient (by itself) to guarantee a right to elective abortion after viability. Roe guarantees the right to an abortion based on legitimate health concerns at any point during pregnancy. Bolton then expands the definition of "legitimate health concerns" to include "emotional health".

            Why would the authors of the Roe opinion include the phrase "and even proscribe" if they were intending to guarantee a right to fully elective abortion at all points during pregnancy?

            • Joe Carter

              ***Why would the authors of the Roe opinion include the phrase "and even proscribe" if they were intending to guarantee a right to fully elective abortion at all points during pregnancy?***

              I don't know what Blackmun's intent in including that phrase, only the result of the ruling. As many legal scholars, both liberal and conservative, have pointed out, Blackmun's opinion is contradictory.

              The ruling issued in Bolton was issue on the same day, and as it states in the Roe decision they are intended to be read together. That means that when "health" is mentioned in Roe, it is referring to "emotional health" also. If the Bolton decision had not been written, Blackmun would have merely added the health clause into the Roe opinion.

              So in Roe Blackmun is saying that states can sometimes prohibit abortions in later trimesters but only in cases that do not affect the health (including emotional health) of the mother. Either Blackmun was really dumb or he knew that he was issuing an opinion that only pretended to give states the authority to ban abortions.

            • buddyglass

              That begs an interesting question for those who support abortion rights. Given the wording in Roe v. Wade and Doe v. Bolton, under what circumstances is a state *allowed* to restrict abortion past the point of viability? Per the wording of the rulings, it should be able to do so when there is no reasonable risk to the mother's "emotional health".

              It seems like a state could *legally* require women seeking post-viability abortions to demonstrate a legitimate "emotional health risk". Perhaps rape and incest could be taken as a priori evidence of such risk. Outside of those two situations, a state could require post-viability abortion seekers to be submit to be evaluated by a state-appointed panel of psychiatrists who would be tasked with ascertaining ascertaining whether carrying the pregnancy to term represents a legitimate "emotional health risk".

              If challenged, the state's defense would be, "Hey, we're only trying to make sure we accurately ascertain whether there's a legitimate emotional health risk before allowing the abortions to go forward. As stated in Roe, we have a valid interest in preserving the potentiality of human life, and we deem the medical opinions abortion providers who have already been contacted for the purpose of providing an abortion to be highly vulnerable to bias. Hence our use of a panel of medical professionals, none of whom has a direct stake in the medical question being decided."

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  • http://www.joshburnett.org Josh Burnett

    Thanks for this article. People my age need to know these facts. I never knew that Roe became a pro-life Christian. How cool!

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  • CrackerRepublic

    The SBC point is misleading in light of the liberal 1970s and the Conservative Resurgence in the SBC.

    • Joe Carter

      How it is misleading to point out a resolution by the SBC?

      • CrackerRepublic

        It doesn't really say anything about abortion. The SBC changed everything during that time.

        • Joe Carter

          Well, I think it says quite a bit when the largest Protestant denomination in America supported abortion. It wasn't until folks like Francis Schaeffer started talking about it that it evangelicals started seeming it as something more than a "Catholic" issue.

          • CrackerRepublic

            I just don't think that the leadership of the SBC was evangelical until 1979.

          • http://www.covenantcaswell.org John Carpenter

            Keep in mind that the SBC began for the purpose of supporting slavery. Sadly, much of Southern religion, even so-called "fundamentalism", was merely a cultural religion. So when the culture supported abortion, so did the cultural religion. The evangelization of the Southern "Bible belt" is much shallower than many suppose.

  • LJ

    I could be wrong, but isn't partial birth and third trimester abortions illegal now under the Law that Santorum co-authored and which Bush signed into law? If so, the US does have protections for some babies before they are born in contrast to point 5...

    • Joe Carter

      ***isn't partial birth and third trimester abortions illegal now under the Law that Santorum co-authored and which Bush signed into law?***

      Sadly no, the present statute is directed only at a method of abortion (intact dilation and extraction). It doesn't prevent any woman from obtaining an abortion. In fact, many abortion providers have shifted to the practice of injecting the fetus with lethal drugs before all late-term abortions.

    • Kevin

      LJ, my understanding is that the partial birth abortion ban only outlawed that particular procedure, where the child is partially delivered and then scissors are inserted into the back of his or her neck. So this procedure is no longer allowed, but this doesn't mean that the child can't be aborted via other means (including up through the third trimester). According to abortionist Martin Haskell (whose paper describing the procedure is linked to on the National Right to Life site under "The Partial-Birth Abortion Ban" page), partial-birth abortion was the preferred procedure for children at a certain developmental stage, but not the only one. It was preferred because dismembering the child in the womb was more difficult later in the pregnancy because the tissues were tougher than earlier on. You can read it - it is truly gruesome.

    • Kevin

      Sorry for the essential "ditto" on Joe's reply. I took too long to craft that paragraph (w/out refreshing my browser).

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  • http://www.covenantcaswell.org John Carpenter

    At what point do American Christians say that their commitment to justice is greater than their commitment to the US constitution (and the Roe v. Wade decision it allows)?
    Micah 6:8

    Democracy, a constitutional republic, etc., are excellent things if they preserve justice for all people, including the unborn. But when they don't serve that purpose . . . .

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  • Lucas Wright

    Not sure how point number 9 is relevant.

    • Joe Carter

      I think it shows that large numbers of American Christians are not committed to ending this evil.

  • http://www.fbcthecolony.org Dr. Mark L. Richardson

    Excellent post Joe! Thanks for your insights and for standing up. With you in the battle.

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  • Lauren

    #7 isn't true. The Norma Mccorvey story is much more complicated. For a reference, check out Vanity Fair's recent article on her. It seems she has been used by both sides to validate their respective points and subsequently, she has used both sides for money.

    • Joe Carter

      What isn't true about that point? McCorvey did become a Christian and she did become a pro-life activist. According to the Vanity Fair story, she still seems to be both.

      • Lauren

        Thanks for the reply.

        You're right - I shouldn't say "it isn't true." I would just emphasize that her story is very complicated. Saying that "she's a committed pro-life advocate" seems to be a very sanitized version of the truth. (She also converted to Catholicism in 1998 - not sure what your stance on that is).

        Did you read the online snippet or the magazine article in its entirety?

  • Joe Carter

    ***Did you read the online snippet or the magazine article in its entirety?***

    I read the article. While it's certainly biased against the pro-life position, it rightly points out that McCorvey is a very troubled woman. (That's been known by pro-life groups for many years.)

    The point of including her on this list was merely to point out an interesting—and little known—fact related to the Roe decision.

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  • http://www.gracechurchmarietta.org John Harris

    Thanks for the reminders and links about these observations on the issue of abortion. Your post served to shine more light on the subject and helped me prepare for my sermon for yesterday. Also, last week I wrote a letter to the President which our local paper printed in the editorial section. Please pass the link to my letter on to as many people as possible. http://bit.ly/XrqE0f

    Thanks.

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