January 22, 2015 marked the forty-second anniversary of the Supreme Court’s decision in Roe v. Wade, in which the Court interpreted the Constitution as mandating that all states must allow abortion-on-demand (until fetal viability). In so ruling, the Court instantly gave America the most radical pro-abortion law in the world. The unwritten “constitutional” right to choose abortion as mandated by the Supreme Court is virtually absolute. States cannot directly or indirectly impede access to abortion.
The right invented by the Roe Court is not, as it is often described, a right to have an abortion in the first trimester, but it is an absolute right to choose to have an abortion for any reason, or for no reason, at least until the fetus is viable (which Justice Blackmun told us, occurs usually about 28 weeks gestation – that’s nearly 7 months into the term of pregnancy). Even after viability, most abortion regulations are prohibited or suspended if they impinge the woman’s access to abortion for any reason that can be characterized by a self-serving abortionist as useful for to the mother’s health. Thus, the Supreme Court even invalidated state laws restricting the use of late-term Nazi-esque “partial-birth abortion” (more accurately, partial birth “infanticide”). Fortunately, Congress pushed back, and the Court upheld federal legislation restricting such gruesome late-term abortion methods.
Only two significant restrictions on abortion have been upheld. First, restrictions on public funding have been upheld – after dozens of lawsuits by Planned Parenthood and other abortion clinics, and at least four separate Supreme Court decisions, it is finally clear that the SCOTUS will not interpret the Constitution to require the government to pay for elective abortions. Second, it is now clear that states can require parental notice or consent if the pregnant girl is a minor, but parental consent must be subject to judicial bypass, and studies in several states have shown that when an abortion clinic goes to court to ask judicial permission to allow them to perform an abortion on a minor for any reason, they get the court approval in over 99% of the cases (it is a rubber stamp). So even parental notice in most states is simply a phantom, a mere pretense and legal fiction.
Roe made American abortion law the most extreme in the world. As Professor Mary Ann Glendon has observed, compared to any country in Europe, East or West, we still would not find any country where there is so little restriction on abortion in principle as there is in the United States. . . . Today, in order to find a country where the legal approach to abortion is as indifferent to unborn life as it is in the United States, we have to look to countries which are much less comparable to us politically, socially, culturally and economically, and where concerns about population overrides both women’s liberty and fetal life. Mary Ann Glendon, Abortion and Divorce in Western Law 2, 24 (1987).
In Roe, the Supreme Court constitutionalized private violence. Abortion is the most violent act one human can commit against another (killing). The primary direct victims of abortion are the most voiceless, vulnerable class of human beings (in utero).
Roe v. Wade is the 20th Century equivalent of Dred Scott v. Sanford – the infamous decision holding that slaves and their descendants were not and could not be “citizens” of any American state for purposes of the Constitution. Conceptually, the Roe abortion rule is like slavery; it de-humanizes and treats as chattel a whole class of humanity. As Dred Scott held that Blacks not persons entitled to constitutional protection, so Roe holds that unborn humans are not entitled to basic constitutional protection for their lives. As the Court in Dred Scott said that Black slaves are merely the property of their owners, so Roe said that an unborn human being is merely property belonging to her pregnant mother – which the woman can dispose of as she wishes. If, as Abraham Lincoln said at Coopers Union, the message of slavery is that a man is not a man if he is Black, the core message of Roe is that a human being is not a human being if she is in utero.
Roe abandoned women to their privacy, turning the age-old retort of male sexual predators – “It’s your problem, you take care of it,” into a constitutional mandate. Roe portrayed an entire generation of women as irresponsible, inferior, inept, unable to represent themselves in democratic political processes and in constant need of the “paternalism” of a rigid constitutional rule of abortion-on-demand – preventing states from restriction elective abortions. Roe presents women as incapable of dealing compassionately or creatively with unexpected pregnancies, except by the violence of abortion.
It is appropriate for Americans to take time in January to reflect on the tragic wrongs of Roe v. Wade. Our laws were distorted by Roe; our Constitution (both principles and processes) was distorted by Roe; our values of democratic self-government were distorted by Roe; and millions of lives of unborn children in utero (now approaching 60 million lives) have been destroyed because of Roe. It is time not merely to mourn for those wrongs, but it is time to correct them. It is time – past time – to constitutionally repudiate the tragic wrongs of 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.