Commentary

Roe v. Wade: Turning Wombs Into Tombs Since 1973

By Lynn Wardle | January 22, 2016 | 3:39pm EST
On Jan. 22, 1973, the U.S. Supreme Court, in its Roe v. Wade decision, legalized abortions using a trimester approach. (AP Photo)

January 22, 2016 marks the forty-third (43rd) anniversary of one of the most infamous and terrible Supreme Court decisions in American History.  On January 22, 1973, the Supreme Court decided Roe v. Wade, 410 U.S. 113 (1973).  In that case the seven-person majority of the Court declared (in a ghastly opinion by Justice Harry Blackmun) that the historic Texas Abortion law, which had codified the centuries-old common law rule prohibiting elective (non-therapeutic) abortions was unconstitutional. 

The effect of the Roe decision was to invalidate the abortions laws then in effect in all fifty states.  Even the Model Penal Code’s abortion restrictions proposed by the prestigious American Law Institute (and adopted in at least fourteen states) were declared to be unconstitutional under Roe that day by the Supreme Court in its ruling in a companion case, Doe v. Bolton, 410 U.S. 179 (1973).  Citing legal “penumbras” (“shadows) of the First, Fourth, Fifth, Ninth and Fourteenth Amendments, the majority of the Supreme Court. 

Thus, January 22, 1973 is the day that abortion-on-demand became to official legal policy in the United States by order of the Supreme Court in Roe and Doe.  The Court decreed that states could only prohibit or directly restrict abortion after a doctor had declared that the child-in-utero (fetus or embryo or baby, however denominated) was “viable.”  Then, the Court suggested that viability did not occur until 24- or 28-weeks gestation (about six or seven months after pregnancy began). 

The practical effect of Roe and Doe was an eruption in the killing of unborn children in the United States.

Just two months ago, the CDC provided its latest statistics on abortion.  It reported that it had gathered reports about 700,000 (exactly 699,000) abortions done in the USA in 2012. 

The CDC data, however, is under-inclusive. The CDC just passively reports information from state agencies who voluntarily provide it.  Thus, the CDC does not include any information about abortions performed in California, Maryland and New Hampshire, which decline to report that information.

The Alan Guttmacher Institute (AGI), formerly the research arm of Planned Parenthood, generally provides more complete and comprehensive abortion data.  The AGI reports that approximately one million (1,000,000) abortions are performed annually in the USA. That equates to over 83,000 every month, 19,230 every week, and 2,700 every day. 

Citing both CDC and AGI data, the National Right to Life Committee estimates that there have been at least 58,586,256 abortions performed in the USA since 1973 when Roe was decided.

Close to half of women having abortions according to the AGI had previously had one or more abortions.  Abortion has become just another method of birth control for hundreds of thousands of women every year.

Abortion is the tragic exploitation of desperate women by a greedy, callous abortion industry. The Roe doctrine of abortion privacy merely constitutionalizes the age of response of irresponsible sexually exploitive men: “It’s your problem; you take care of it.”

Roe especially exploits poor women, unmarried women and minority women.  As national-respected Social Worker Erma Clardy Craven put it, Roe’s doctrine of abortion on demand was “a way to eliminate a certain group of people … . It’s elitist, racist and genocidal.” See Sandy Banisky, Blacks split on issue of abortion Genocide to some is vital choice to others, June 15, 1992.

Roe has initiated a “silent genocide” in America. The unwanted can be eliminated if they are unborn.  Human lives are deemed disposable-at-will.  Roe has turned many wombs into tombs.

Roe stands as a stain on the integrity of the Supreme Court.  The Court abused its authority in Roe. Roe is now forty-three years old, and still illegitimate.

Roe nationalized an issue that had been regulated by the states.  Roe altered the structure of government and distorted the allocation of powers between the federal and the state governments.

In Roe, the Court usurped the authority to decide a policy issue that previously had been exclusively a legislative issue to decide.  In no other country in the world is the national abortion policy set by the courts – only in America after Roe v. Wade. In all other nations, the legislative representatives of the people decide fundamental abortion policy – but not in America. 

Roe v. Wade is a distortion and a disgrace.  For the integrity of our judicial system, for the sake of our representative democracy, and to stop the senseless killing – it is time to expunge and overturn Roe v. Wade.

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.

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