On January 22, 1973 — 42 years ago today — the Supreme Court decided Roe v. Wade, wherein a Texas woman sought an abortion, but existing legislation in Texas prevented her from doing so. The Supreme Court ruled 7 to 2 that it was unconstitutional for states to interfere in the process of a physician providing a first-trimester abortion. Before the ruling, it was illegal for physicians to perform an abortion in 30 states. In the remaining 20 states, it was illegal for physicians to perform abortion unless it was deemed medically necessary.
Women, their autonomy, and their right to decide their future were not given as reasons why Roe v. Wade was decided the way that it was. Justice Harry Blackmun wrote for the Supreme Court, stating that the case was a right to privacy issue that was protected under the Due Process Clause of the 14th Amendment. Before his death in 1999, Justice Blackmun stated outright that Roe v. Wade was not about women’s rights. Ronald Rotunda, law professor at Chapman University, recalls a 1994 conversation with Justice Blackmun where he explicitly spelled out the ruling’s intentions: “Roe ‘protected the woman’s right, with the physician, to get an abortion.’” Rotunda made clear that “Blackmun emphasized the italicized phrase with his voice. He spoke of the case as a doctor’s rights case, not a woman’s right case.”
Some reproductive rights supporters think Roe v. Wade faltered in not explicitly prioritizing women’s rights to control their own bodies.
Each January, reproductive justice advocates celebrate the Roe v. Wade decision because it is absolutely essential that a woman is able to obtain an abortion if that is what she decides — because she, and she alone, should decide her future and fate. However, as interpreted by the Supreme Court, Roe v. Wade was never about women’s rights. Numerous legal scholars in favor of reproductive rights have taken issue with how Roe v. Wade was handled. Their criticisms are largely that: (1) the Supreme Court went beyond its role of judicial power and into that of legislative power by making abortion legal in all 50 states, and (2) the Supreme Court failed to make the decision about a woman’s right to choose her own future. Below is only a brief cross-section of these criticisms.
Justice Ruth Bader Ginsburg (aka the Notorious RBG) has openly disagreed with how the court handled Roe v. Wade. Speaking to the ruling overstepping its role, Ginsburg felt that it “moved too far, too fast,” with the underlying opinion that it should be the states that are given the power to decide these legislative matters for themselves versus the Supreme Court deciding it for them (especially given that the Supreme Court should not have legislative power within the system of checks and balances).
Regarding how the case was not even about a woman’s right to decide her own future, Ginsburg spoke to Columbia Law School students in 2012 and stated: “If you read the decision, it’s as much about the doctor’s right to recommend to his patient what he thinks his patient needs. It’s always about the woman in consultation with her physician and not the woman standing alone in that case.”
Ginsburg felt other cases through the court system at the same time were more reflective of real issues women face relative to their bodies and their future. For example, she stated that if the court had instead heard the case of U.S. Air Force Capt. Susan Struck, they would have had to view abortion within the context of it being a decision that a woman makes about her life and her future. In this case, Struck became pregnant while serving in Vietnam. The Air Force gave Struck the choice either to terminate the pregnancy or resign from the Air Force, but she wanted both to keep her job and continue her pregnancy. The Air Force eventually allowed Struck to retain her position and, thus, the Supreme Court never heard the case. However, Ginsburg noted this case as one that clearly demonstrates that abortion law is about a woman’s decision about her body and her future.
In addition to Ginsburg, Cass Sunstein, former administrator of the Office of Information and Regulatory Affairs under the Obama administration, also points out problems with the ruling. Sunstein states that it was likely the Roe v. Wade ruling itself that galvanized the religious right movement of the 1980s, as exemplified by organizations such as Rev. Jerry Falwell’s Moral Majority. He goes on to say that if Roe hadn’t given strength to the religious right, the Equal Rights Amendment may have passed with less resistance and gender equality efforts may be further along than we find them today. As Sunstein said, “If the court goes in the teeth of the public, it can hurt the cause that you’re trying to promote.”
Finally, in 1973, renowned Constitutional law scholar John Hart Ely famously critiqued the ruling. Ely observed that Roe v. Wade was influenced by the 1965 Supreme Court case Griswold v. Connecticut, which stated that existing laws outlawing contraception were unconstitutional because they violated a married couple’s constitutional right to privacy. Because Ely cites Griswold v. Connecticut as one that influenced Roe v. Wade, it is worth mentioning that this case was also not about women’s rights. The original court ruling stated that a woman could only obtain birth control as part of a married couple making a decision together rather than as a woman making a choice about her future.
For Roe v. Wade, Ely went on to state that, while a woman should indeed have the freedom to choose, the Supreme Court’s ruling to legalize first-trimester abortions was so powerful that it went beyond what is outlined in the Constitution and its own scope of power within the judicial branch. In Ely’s words:
What is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus’s existence is unable to overcome it — a protection more stringent, I think it fair to say, than that the present Court accords the freedom of the press explicitly guaranteed by the First Amendment. What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-a-vis the interest that legislatively prevailed over it.
Because of Roe v. Wade, women who make the decision to terminate their pregnancies are legally able to obtain abortions — and it is crucial that women continue to be able to make decisions about their futures and their bodies. However, as advocates for reproductive rights celebrate the anniversary of Roe v. Wade, it is worth examining the original court decision in an attempt to understand why, 42 years later, women are still being made to battle legislators for this autonomous right. For instance, earlier this month, the Guttmacher Institute reported that, since the midterm elections of 2010, 231 new abortion restrictions have been passed by state legislatures around the nation. (Happily, they also reported that, during the 2014 legislative session, “17 states introduced 95 measures designed to expand access to abortion, more positive measures than in any year since 1990 … Of these, four were signed into law.”)
More than 40 years after the Roe v. Wade decision, 53 percent of Americans want it upheld, while only 29 percent want to see it overturned. In addition, an estimated 30 percent of women will have an abortion by the time they are 45 years old, making it one of the most common medical procedures in the United States. Although abortion is common and access to it is supported by the majority of Americans, discourse surrounding the issue of women’s rights to make their own health care decisions has been distorted in recent decades.
If the Roe v. Wade case had either been framed as being about a woman’s right to choose her own future, or the Supreme Court had heard another case that better demonstrated that right, it may have smoothed the path to women making their own health care decisions without obstacles from influential groups, such as organizations representing the religious right. Further, if the Supreme Court turned the decision over to the states to set abortion law within their jurisdictions, this perhaps would have opened the door to a conversation about women’s equality and rights over their own bodies versus opening the door to legislators and organizations that are using every legal loophole they can find to lead down a path of ending access to abortion in our country.