I was 15 years old in January of 1973, when Roe v. Wade was decided. At the time I think I barely knew what an abortion was. However, one thing I’m sure of is that I never, ever imagined that is that 45 years later we’d be having the same fucking debate! In 2018, we really can’t yet agree that a woman should have control over her own body?
The impetus for renewing this discussion now is, of course, the nomination of Judge Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court. It’s not certain, of course, the Kavanaugh would be the fifth vote to overturn Roe. He will huff and puff mightily during his confirmation hearings that he is a faithful follower of judicial precedent, while promising nothing. But this possibility is one that the right wing has been working very hard at for a very long time. And they’ve done a remarkably good job at it, one must admit.
In any case, this is the first of two articles on the abortion wars. I will be posting about:
- The legalities involved in the Roe (and subsequent) decisions.
- What would happen if Roe were overturned?
The legalities underpinning the Roe decision
Just like the Bible, the Constitution says nothing specific about abortion. At the time that the Constitution was written abortion was not unknown, but also not a particularly common practice. Advances in medicine over the intervening years have changed that.
Before we got to judicial determinations on the constitutionality of abortions, we first had cases determining the constitutionality of birth control. The two cases in question were:
- Griswold v. Connecticut, 381 U.S. 479 (1965), where the court decided that a Connecticut law that criminalizes the use of contraception by married couples was unconstitutional.
- Eisenstadt v. Baird, 405 U.S. 438 (1972), where the court decided that a Massachusetts law that criminalizes the use of contraception by unmarried couples was likewise unconstitutional.
To make that determination the court had to find two things: first, that there was an inherent “right to privacy” implied somewhere in the Constitution, and second, that this right could be applied to the states through the Fourteenth Amendment.[1]
The Ninth and Tenth Amendments
I have argued for some time, that both the contraception and abortion decisions were decided under the wrong amendment. Instead of looking for some implied “right to privacy” there are two amendments that could have created “natural law” rights for procreation in general, and birth control and abortion in particular. These two amendments are:
- The Ninth Amendment, which states that [t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- The Tenth Amendment, which states that [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[2]
One of the set of rights that should have been retained by the people are those that relate to procreation. Questions about whether or not to have a child is about as personal as a right can be. It shouldn’t really be an issue that the Government weighs in on at all.
What Roe v. Wade Actually Said
Building on the Griswold and Eisenstadt cases, the Court found in Roe v. Wade, 410 U.S. 113 (1973) that the decision to become a parent was part of the “liberty” protected under the due process clause of the 5th and 14th Amendments. The right to terminate a pregnancy, the Court wrote, must be balanced against other considerations, such as the state’s interest in protecting “prenatal life.”
Justice Blackmon, the author or the Roe decision, divided the nine months gestation period that is normal for pregnancy into three trimesters, and assigned the following legal consequences:
- First trimester: abortions cannot be prohibited (but may be regulated in certain minimal ways).
- Second trimester: abortions can be regulated in ways that are “reasonably related” to maternal health.
- Third trimester: abortions can be prohibited except if necessary to preserve the life or health of the mother.
How Roe was amended by Planned Parenthood v. Casey
A mere nine years after the Roe decision, the Supreme Court decided Planned Parenthood v. Casey, 505 U.S. 833 (1992). In those nine years the liberal justices William Brennan and Thurgood Marshall had resigned and had been replaced by the much more conservative justices David Souter and Clarence Thomas. Opponents of abortion rights thought they could get another bite at the apple. They thought Roe would just be overturned. But that did not happen.
What did happen is that Roe was amended in a way that is largely technical and mostly of interest to attorneys. But here are the big changes:
- Casey threw out the “trimester” framework and replaced it with a “viability” framework.
- The court allowed government regulation of abortion prior to viability so long as it did not create an “undue burden” on the women seeking access to an abortion
It is the Casey case that is now the law of the land. When people say they want to overturn Roe, what they really mean is that they want to overturn Casey, or at least the portion of Casey that allows access to abortion prior to viability.[3]
What has Happened Since Planned Parenthood v. Casey
Since the Planned Parenthood v. Casey decision, legislatures around the country have enacted more and more restrictions, and the Supreme Court has found more and more of these constitutional. This includes:
- Waiting periods
- Informed consent requirements
- Fetal viability tests
- Reporting and recording requirements
- Medical procedures (i.e., how doctors actually perform abortions)
- Prohibitions on “partial birth” abortions
- Parental notice and consent requirements
- Spousal notice and consent requirements
Please note that the Supreme Court has limited some of these restrictions, and that the case law around these proposals is complicated. Too complicated for this post or this discussion. That discussion would be more appropriate for a law school class.
Tomorrow I will take a look at what would happen if Roe/Case were overturned.
[1] Remember that inherent in it’s nature, the U.S. Constitution only applies to the federal government. The Bill of Rights (first 10 amendments of the Constitution) only regulate what the federal government can and cannot do. It is the 14th Amendment that applies these rules to state and local governments.
[2] Part of the problem with the 10th Amendment is that it lumped together the reserved rights to both the states and the people. Really, those two concepts should have been separated.
[3] As medicine advances, it should be noted that “viability” has become a “moving target” and may eventually move to the point that viability is achieved before the woman really knows that she’s pregnant.
