The 1973 Roe v. Wade Supreme Court decision stands among the most controversial, celebrated and loathed rulings in the history of the Court. For supporters of women’s rights and the right to access safe and legal abortion care, the ruling brought women long sought-after freedom and autonomy over their own bodies. For social conservatives and opponents of the right to choose, it was a marked — if not enduring — defeat.
The case also is a prime example of the significance of Supreme Court appointments, as well as how the continuing struggle for a right can be waged on many fronts. The tactics in the fight over abortion rights may have shifted over the last 35 years, but the struggle in many ways remains the same. Looking forward, the future of abortion rests at the local, state and national levels.
In the January 22, 1973 decision, the justices voted 7-2 that the constitutional right to privacy established in Griswold v. Connecticut and expanded upon in Eisenstadt v. Baird included a woman’s right to choose to terminate a pregnancy before the third trimester, when the fetus was deemed “viable.” Post-viability abortion was ruled permissible in cases of severe fetal anomaly or when the woman’s health or life was in danger.
What’s more, the decision had a distinctly feminist feel. Justice Blackmun, who penned the majority opinion, wrote, “[T]his right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.”
Thirty-five years after that fateful day, the Roe decision still stands, although its reach and impact have been diminished through subsequent rulings and state laws. The seven-vote majority in 1973 has continually eroded. Since the Roe decision, the Court has issued rulings upholding state laws that: require physicians to deliver a biased “informed consent” lecture; require a 24-hour waiting period; restrict coverage for abortion in state Medicaid and employee health plans; ban clinics that receive public funding from providing information about abortion services; prohibit the performance of abortion in publicly funded hospitals; and require minors to obtain written consent from one or both parents before an abortion.
The Court issued its sharpest blow to abortion rights last April in its decision in the companion cases of Gonzales v. Carhart and Gonzales v. Planned Parenthood. At issue was the Federal Abortion Ban, a federal criminal ban on a certain abortion procedure linked to late-term abortions, but also used on some first-trimester abortions. The Federal Abortion Ban is particularly burdensome in that there is no exception for the woman’s health. The ban was signed by President Bush in 2003 and, with his nominees Chief Justice Roberts and Justice Alito on the bench, the Court was primed to hear the case in 2006.
By a 5-4 vote, the Court upheld the law. Unlike any abortion-related case previously decided by the Court, this ruling upheld a restriction on the right to choose that did not have an exception for the health of the woman. It was clear the pro-choice, pro-woman jurists were now in the minority.
For the majority, Justice Kennedy wrote that the ban would in fact be a good way to prevent women from making a decision they may not understand and may later regret: “While we find no reliable data to measure the phenomenon ... it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”
Writing an impassioned opinion for the minority, Justice Ginsberg argued that the Court was being paternalistic when expressing concerns about women’s regret over an abortion, adding that the “solution the court approves [is] not to require doctors to inform women adequately of the different procedures they might choose and the risks each entails. Instead, the court shields women by denying them a choice in the matter.”
Justice Ginsberg summed up the case and its effect on the ongoing struggle over abortion rights, stating the Federal Abortion Ban “cannot be understood as anything other than an effort to chip away at a right declared again and again by this court — and with increasing comprehension of its centrality to women’s lives.”
Indeed, the anti-choice movement scored a huge victory with the appointments of Roberts and Alito and in the outcome of Gonzales v. Carhart. The case underscored the impact that Supreme Court justices — and the presidents who nominate them — have on the lives of ordinary people. For an institution that can seem so far removed from one’s daily life, the Supreme Court’s scope can be far-reaching and immediate.
The next president likely will have more seats to fill on the Court and those new justices will in all probability sit on the bench long after the next administration comes to an end. The next addition to the Court will determine whether or not Roe v. Wade will be overturned in the near future. That means the winner of the presidential election in November will potentially leave a lasting legacy behind him or her.
However, the Supreme Court is not the only player in the struggle for rights. Legislation — at both the federal and state level — is a critical bulwark against those who seek to limit rights. Like the Court, however, legislation can help or hurt one’s cause.
At the federal level, the fight to guarantee abortion rights continues in efforts to gather support for the Federal Freedom for Choice Act, which would put the holding of the Roe decision into federal law. Passage would be an important victory for abortion rights advocates and for women across the country, but with pro-choice congressmen and women currently in the minority, it is certainly an uphill battle.
Here in Washington, we have a positive right to choose written into our state law. Washington voters passed Initiative 120 in 1991, which codifies the findings of Roe v. Wade in Washington law. That means that even if Roe is overturned, the women of Washington still will have legal access to abortion care.
Unfortunately, Washington is an exception to the rule. Nationwide, 15 states have unconstitutional and unenforceable near-total criminal bans on abortion and four states have total bans set to go into effect should Roe v. Wade be overturned. Additionally, 22 states have unconstitutional and unenforceable bans that could outlaw abortion as early as the 12th week of pregnancy, with no health exception. While these laws do not currently pass constitutional muster, they illustrate how much of the country would rapidly ban abortion in the event Roe is overturned.
Furthermore, while these state laws may not be enforceable, they are a clear indication that there are parts of the country that are hostile to abortion rights. Indeed, many of these states have additional, constitutional laws that place significant burdens on women seeking abortion care. Or they simply have extremely limited facilities: North Dakota and Montana, for example, have only one abortion clinic each. For women across the country, access to abortion rights depends on where they live and what resources they have at their disposal.
In that way, the fight for abortion rights 35 years ago greatly resembles the fight of today. The struggle for abortion rights remains a battle at the local, state and federal levels. Without strong state laws (and enforcement of those laws), a federal right to choose means little to the women on the ground.
Should Roe v. Wade be overturned by a Supreme Court growing increasingly hostile to choice, it will be up to Congress and state legislatures to affirm a right to access safe and legal abortion care. For the future of abortion rights, much hinges on the outcome of elections at all levels of government.
Alison Mondi is the director of communications for the National Abortion Rights Action League (NARAL) Pro-Choice Washington, www.prochoicewashington.org.
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