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Roe in a Nutshell
Roe declared that there is a constitutional right to privacy, that pregnancy is fundamental, and that States had no compelling reason to restrict abortion to the extent they had. Roe also pointed out, in a "strict-constructionist" sense, that the Constitution always used the term "person" to apply post-natally and not to the unborn (Pojman 28-29). The most controversial part of Roe was in the dicta; it established a trimester approach to pregnancy that was based on the viability of the fetus. In this scheme, the abortion decision was left to the woman and her doctor during the first trimester. States could restrict abortions in the second trimester. In the last trimester, States could ban abortions except in cases where it was necessary to save the mother's life. The trimester scheme surprised all the litigants, none more than Sarah Weddington who had argued the case (Weddington 161-162). It was the trimester scheme that received the most flak in the aftermath.
Blackmun
The author of the majority opinion in Roe, the late Harry Blackmun, addressed the controversy that Roe would generate in the second paragraph of the decision. Blackmun wrote that the Court was aware of the "sensitive and emotional nature of the abortion controversy" and of the "deep and seemingly absolute convictions that the subject inspires" and how "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."
Roe Aftermath: The Firestorm
In spite of Blackmun's efforts to soften and explain the decision to the public, which included a proposed press release (Lazarus 359), Roe became for social conservatives a rallying cry for their cause and a symbol of the nation's "cultural degradation" and "the mass murder of innocent unborn children" (Lazarus 360). None other than Norma McCorvey, the "Jane Roe" in Roe, has joined the fray as a vocal anti-abortion activist. McCorvey never had an abortion, gave birth to a child that she put up for adoption. McCorvey can be seen speaking out against abortion on religious programs such as Pat Robertson's 700 Hundred Club.
The Classic Objections to Roe
The then Associate Justice Rehnquist wrote the dissenting opinion in Roe. Rehnquist felt that the trimester approach used by Blackmun had no constitutional basis and amounted to "judicial legislation" (Pojman 34). Rehnquist pointed out that at the time the Fourteenth Amendment was adopted in 1868, "there were at least 36 laws enacted by state or territorial legislatures limiting abortion" and that one could only conclude that the "drafters did not intent to…withdraw from the States" the power to pass abortion legislation (Pojman 34-35). Rehnquist also pointed out that the Constitution had no explicit right to privacy.
In their essay "Roe v. Wade: No basis in law, logic, or history", Dennis Horan and Thomas Balch compared Roe's failure to recognize the fetus as a person to other notorious Supreme Court decisions such as Dred Scott, that ruled that blacks were not citizens, and Plessy, which upheld racial segregation. The authors quote Archibald Cox, who achieved fame as the first Watergate prosecutor, who referred to Roe as "a set of hospital rules and regulations" whose validity will be destroyed with "new advances in science providing for the separate existence of a fetus" (Pojman 74). Horan and Balch also point out that for all practical purposes, if one were to rely on the scheme in Roe, there was no foreseeable scenario in which a State could "constitutionally prohibit abortion at any time during pregnancy" (Pojman 75). People oppose abortion because "it kills unborn human life" (Pojman 77). Historically the unborn was recognized as a person based on "the biological and medical knowledge of each historical era" (Pojman 77).
Another View of When Life Begins
Throughout the centuries there has been different "cutoff" points in which life was considered to have begun. The medieval Catholic Church followed the "forty-and-eighty-day rule" in which "the soul was thought to enter the male fetus forty days after conception and the female fetus eighty days after conception (McDonnell 43)." The Church allowed the abortion of a male up to forty days, and of a female up to eighty days (McDonnell 43). How the Church determined the sex of the fetus remains a mystery to this day. In 1869 the Church "officially abandoned the forty-and eighty-day rule, and adopted the position that the soul was infused at conception, which effectively outlawed all abortions" (McDonnell 43).
Casey: Roe's near-death experience
In Planned Parenthood v. Casey (1992) the Supreme Court struck down a provision of the Pennsylvania law that required married women to sign a statement attesting that they had notified their husbands that they were seeking an abortion. The Court let stand a provision that required parental notification in the case of minors. The Court also scrapped Roe's much maligned trimester scheme. The remarkable thing is that the Court was going to overturn Roe, but did not do so. In his inside the Court book "Closed Chambers", former clerk Edward Lazarus gives a rather telling account of how the Court, prompted by the likes of Solicitor General Ken Starr (among others), had decided to use Casey to overturn Roe. This would have happened had it not been for Judge Souter. Souter shared the same concern for due process and stare decisis of his hero Justice Harlan, the lone dissenter in the 1896 Plessy decision. Souter convinced Justices O'Connor and Kennedy to write an opinion in which they would uphold Roe not on its merits, but to preserve the Court's institutional integrity (Lazarus 459-476). The language was simply stunning; a decision to overturn Roe would be "a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first place." "(Overruling Roe)…would subvert the Court's legitimacy beyond any serious question" (Lazarus 476).
What if the fetus has the right to life?
In her classic article "A Defense of Abortion", Judith Jarvis Thomson argues that a woman has a right to an abortion even if the fetus is a human person. The fetus and the mother have "an equal right to life," but the mother also has the right to decide, "what happens in and to her body...the sum of her rights now outweighing the fetus right to life" (Pojman 119-120). The right to life is not as simple as abortion opponents think it is. From Thomson's point of view, "having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person's body-even if one needs it for life itself" (Pojman 123-124). Thomson illustrates this principle by her use of an "imaginary violinist." Suppose, she asks, that you wake up in the morning and find yourself sharing your circulatory system with a famous violinist. The Society of Music Lovers kidnapped you because you have the only blood type that can help the violinist. What if you were told that the violinist's right to life outweighs your right to decide what happens to your body? What if you were told that, because the violinist's right to life outweighs your right to life, you "cannot ever be unplugged" from the violinist? Thomson's argument is that this situation is as outrageous as saying that the fetus right to life is greater than the mother's right to decide what happens to her body (Pojman 117-118).
Are the Choices Pure and Simple?
In their essay "Breaking Through the Stereotypes," Daniel and Sidney Callahan give an account of a study that they conducted on the beliefs and views of women on either side of the abortion issue. The Callahans found it difficult to label prolifers and prochoicers as having values that were either totally conservative or totally liberal. Both groups shared common values that could be used as a basis for dialogue. The Callahans found in their interviews that most of the women, regardless of which side they were on the abortion issue, were concerned about the socio-economic and cultural conditions that cause women to seek abortions. The women were willing to work together to find ways to limit abortion choices made solely because of poverty, oppression, or lack of social support. The women were also willing to work together to further social reforms that "would be more supportive of troubled pregnancies." The women also rejected the views of many in the prolife movement that any choice for abortion is due to "crass expediency," and its prochoice flipside that seems only interested in the availability of abortion (Pojman 10-11).
In her introduction to Kathleen McDonnell's "Not an Easy Choice," Ellen Herman argues that the anguish that women experience when making abortion decisions are not rooted in morality or personal choices. The anguish is caused by "the sexual guilt and shame imposed on women by a misogynist culture, and the resulting injustice of the context in which reproductive choices are made" (McDonnell xi).
Financial hardship is the most common reason cited by women seeking abortions. Although there are many reasons why a woman would seek an abortion, money is usually what "tips the scales" in its favor. It is tragic when a woman, who wants to have a child, is coerced by her poverty to have an abortion (McDonnell 71). In her book "Not an Easy Choice", Canadian feminist Kathleen McDonnell argues that abortion "must be carried out by those who love and respect women," and who have a "deep reverence for both life and death" (McDonnell 132). McDonnell also proposes that feminists should make clear that the right to choose "shares nothing with a population control ideology that legitimizes the control and exploitation of women's reproductive capacity in the interest of perpetuating an inequitable political and economic order" (McDonnell 133). Poor women are also victimized by the pharmaceutical industry. Many of the new contraceptive methods being developed and distributed in Third World countries are used primarily "for population control purposes, not to increase women's choices" (McDonnell 138).
Should abortion be prohibited?
As we saw earlier in our discussion of Casey, it is unlikely that a future Supreme Court will adhere to the doctrine of stare decisis to reaffirm Roe's essential holding. A second Bush Administration will undoubtedly resume the tactics of the Reagan and first Bush Administrations to overturn Roe by simply changing the Court's composition (Lazarus 469). Justice Clarence Thomas's unremarkable tenure in the Court gives credence to the view that his nomination by President Bush was done to placate the Republican rightwing, and to overturn Roe, and not for his constitutional scholarship (Lazarus 450-451). We can expect more Thomas-like nominees to the federal bench from a second Bush Administration.
One cannot ignore the possibility that further advances in neonatal care developments will continue to push viability closer to the point of conception. Since viability in Roe marks the earliest point at which the State can impose restrictions on abortion (Pojman 38), it would be within the realm of possibility for a State to intervene on behalf of the unborn the moment a woman first finds out she is pregnant without violating what remains of the Roe construct (Pojman 109).
A concern over the vulnerability of Roe has prompted many prochoicers to look for other arguments that could be used to preserve the right to choose. Sarah Weddington and Linda Coffee, the two attorneys that represented the plaintiffs in the Roe v. Wade case, discussed using the gender discrimination argument when they were preparing for trial. Forcing a woman to carry a pregnancy to term would violate her right to due process of law. The argument parallels the one used in racial discrimination cases. Weddington and Coffee did not emphasize the gender discrimination argument because there was a lack of precedent in 1971 (Weddington 260-261).
In a 1985 article written for the North Carolina Law Review, Ruth Bader Ginsburg criticized Roe for being based on the right to privacy rather than on the equal protection clause of the Constitution. Ginsburg argues that abortion prohibitions should have been linked to discrimination against women. The conflict, according to Ginsburg, is not "simply one between a fetus' interests and a woman's interests ...nor is the overriding issue state versus private control of a woman's body for a span of nine months. Also in the balance is a woman's autonomous charge of her full life's course" and "her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen" (Pojman 109).
Conclusion
Philosophers such as Rousseau and Marx described equality under the law as a sham used by the powerful in order to preserve in the law all of the injustices done to the weak. The weak are to give up their class warfare in exchange for being treated as an "equal" to the powerful under the law. To Marx and Rousseau, this is only an illusion because the weak remains weak at the mercy of the powerful having abrogated their right to fight back. Women will continue to be subjugated by society, and be viewed as inferior to men, as long as our society and its laws are based on an unequal power structure. Laws will remain on the books that will treat women on an unequal basis when compared to men. Abortion will continue to be treated as a legal issue rather than as a personal one. It is debatable whether our society can address, much less resolve, the social inequality and injustice that are an inherent part of capitalism.
Works Cited
Lazarus, Edward. Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. New York: Penguin Books, 1999.
McDonnell, Kathleen. Not An Easy Choice: A Feminist Re-examines Abortion. Boston: South End Press, 1984.
Pojman, Louis, and Beckwith, Francis, eds. The Abortion Controversy: 25 Years After Roe v. Wade. Belmont: Wadsworth, 1998.
Weddington, Sarah. A Question of Choice. New York: Penguin Books, 1993.
Copyright
Permission granted by author.
Quoted from Abortion: Should it be prohibited? Published as an article, Reality Complicates Pro-Life/Pro-Choice Issues (May 2001, p. 6) PreConvention 2001 Discussion Bulletin, Communist Party,USA. Copyright the author. All rights reserved.
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