Wednesday, August 20, 2008

Remember Roe v. Wade?

Or perhaps the better question would be: Did you ever know what Roe v. Wade says?

I've seen pro-life literature that says, "Did you know that Roe v. Wade allows elective abortions up to the seventh month of pregnancy?" Nope, I didn't know that. And I read the case.

I've seen seen pro-choice people insist that if Roe v. Wade were overturned, the whole country would be immediately cast into a dark world of back-alley abortions...overlooking, of course, the fact that before that happened, each state would have to enact independent legislation prohibiting abortion.

With the Presidential election around the corner, the issue is once again getting a lot of press, but little (if any) of it accurately represents just what Roe v. Wade said or the role it plays in the future of abortion law across the country.

The law that was challenged (and struck down) in Roe v. Wade criminalized abortion in all cases except where it was a life-saving procedure. The United States Supreme Court found that such a restrictive statute violated the 14th Amendment Due Process Clause and that states could exercise varying degrees of discretion in regulating abortion, depending upon the stage of pregnancy.

During approximately the first trimester, states could not limit the right to abortion--that was to be left to the "medical judgment of the pregnant woman's attending physician."

From the end of the first trimester to viability, the state could "regulate abortion in ways that are reasonably related to maternal health".

After viability, the state could regulate--or even prohibit--abortion except where necessary to preserve the life or health of the mother.

One interesting point is that the regulation allowed post-first-trimester was required to be reasonably related to maternal health, whereas that shifted post-viability and the state interest in preserving the "potentiality" of human life was deemed sufficient reason for the restrictions.

It is important to note, however, that the Supreme Court ruling only placed a limit upon the regulations a state could impose--it did not impose any regulations itself. Thus, for instance, when pro-life activists say that Roe v. Wade "allows" for abortion minutes before birth, it's technically true...because Roe v. Wade doesn't put any restrictions on abortion; it simply sets forth the circumstances under which a state may do so. And that's as it should be; health and welfare provisions are specifically reserved to the states under the U.S. Constitution (and in any case wouldn't be the purview of the judiciary). What Roe v. Wade said about late term abortions was that states could forbid them, except where the mother's life was in danger. Period.

On the flipside, if Roe v. Wade were reversed, it wouldn't mean that abortion was illegal--it would mean that if states so chose, they could MAKE abortion illegal.

Obviously, Roe v. Wade was a landmark decision that changed the face of abortion law across the U.S. But abortion law is made by the states, within the parameters set forth in Roe v. Wade and subsequent cases. Before millions of Americans--pro-life or pro-choice--base their votes in the Presidential election on the chance that the next President might appoint Supreme Court Justices who might have occasion to rule on a case that might impact the Roe decision, we should all understand what the case says, and what that means to the states.


Vote For Brad Lord-Leutwyler said...

Independent candidate, Brad Lord-Leutwyler for President in '08.

We The People matter again!

"If we want something different, WE must ACT DIFFERENTLY. We need to stop falling for hollow slogans. We need to wake up and realize that the major parties created this mess and have a vested interest in perpetuating it."

RockStories said...

I was going to delete the above comment as spam, but I just couldn't resist the irony. "TAKE OUR COUNTRY BACK!" "We the People Matter again!"...and then "We need to stop falling for hollow slogans."


Even if they use caps and exclamation points and all that?

kdawg68 said...

abort brad leutwyler! :)

Nice write-up. How controversial of you to strip away controversy and misinformation. :)

GreyTheory said...

Roe v. Wade was a brilliant opinion. Simply reading Justice Brennen's words should bring understanding of the issue.

Moose Goose said...

Wow! So nice to read factual, non-hysterical information on such a hot button topic. Thanks for posting this.


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