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Roe v. 'W': A Primer

On the 28th anniversary of the landmark Roe v. Wade decision, President George W. Bush reinstated the global gag rule on abortion that was enacted during the Reagan administration and continued during George H. W. Bush’s watch. The gag-rule prohibits the allocation of federal funds to non-governmental organizations (“NGOs”) outside the U.S. who perform or even discuss abortion as part of their family planning efforts. Essentially, it forces organizations that legally perform or discuss abortion in their own country, even with their own funds, to decide between providing their much needed services, or suffering financial consequences.
For an administration whose stated foreign policy philosophy is to limit the U.S.’s policing of other nations, it is strange to witness President Bush’s willingness to blackmail foreign NGOs and his keen interest in policing the wombs of foreign citizens. This likely won’t be the last time President Bush confuses his domestic and foreign policy agendas.
The global gag order is yet another example of the economic hegemony that President Bush’s policies seek to engender. Where his tax cut will line the pockets of the wealthiest of the wealthy, the gag rule will deny access to safe abortion procedures for the penurous populations most in need and least able to afford them.
Even in the U.S. the Supreme Court has upheld legislation that prevents state-funded hospitals (the only places most impoverished families can turn to for medical care) from performing otherwise legal abortion procedures. Moreover, the Court has upheld legislation such as the Hyde amendment that denies Medicaid reimbursement for abortion procedures, arguing that just because a right to an abortion exists, doesn’t mean that the state must provide the economic means to achieve it. The result, of course is the same. Only the wealthy can afford private procedures, and the poor and most in need are disenfranchised.
The truth is that the constitutional right to terminate a pregnancy is as illusory as President Bush’s credentials to govern. The much cherished Roe v. Wade decision of the Supreme Court is in its death throes, and has been devoid of any practical bite for quite some time. The last eight years of benevolent executive rule have only served to mask the sad truth: that religious right and judicial conservatives in this country are only a breath away from denying a woman the right to make basic reproductive decisions.
John Ashcroft displayed either his blatant willingness to perjure himself in pandering to the confirmation committee, or his extreme legal naivet‚ when he stated that Roe v. Wade was “settled law” in the U.S. Tragically, the barometer of civil liberties protection in this country is in danger of taking a nose dive on the abortion issue. The principle that a woman has a “fundamental right” to control her reproduction decisions is tenuous at best, not only given the current resurgence of the religious right in the Bush administration, but the shaky constitutional underpinnings that Justice Blackmun employed in drafting the now famous and much defamed decision.
Norma McCorvey, a.k.a Jane Roe, won a victory for women and civil liberties protection in her landmark class action suit against Dallas District Attorney Henry Wade. However, the opinion opened the door for a series of legal and executive attacks on its holding. The right to privacy and indeed even the word “privacy” do not appear anywhere in the Constitution. The right to privacy is a substantive right that is not specifically enumerated, but “fundamental” or “implicit in a scheme of ordered liberty.” It can be “found” implicit in several areas of the Constitution, such as the Third Amendment’s protection of the home during peacetime, the Fourth Amendment’s prohibition of unreasonable search and seizure, the Ninth Amendment’s reservation of rights to the people and in the due process clause of the Fourteenth Amendment.
Roe asserted that the substantive right to privacy in the Constitution was broad enough to encompass a woman’s fundamental right to terminate her pregnancy, and certainly, few areas of privacy can be more fundamental than reproductive decisions. However, the Court stated that this right could be restricted by a “compelling state interest” in preserving the life of the mother or in protecting a “potential life.” The Court’s greatest mistake, however, was in establishing a framework for balancing these interests that was rooted in medical terms, namely, viability of the fetus. This framework assigned varying constitutional weights to competing state interests based on the state of medical capabilities and data in 1973, referring to specific trimesters.
Specifically, the Court stated that the state’s interest in preserving the life of the mother becomes compelling after the first trimester, allowing states to regulate the who, what and where of abortions as they become increasingly more complex (and therefore dangerous to the mother) as the pregnancy progresses. Similarly, the court determined that “viability” occurs after the second trimester, implicating the state’s compelling interest in preserving “potential life” after that point. As you might expect, medical advances both in preserving the life of the mother and in establishing viability earlier in the term of a pregnancy, put the Roe framework on a crash-course with itself.
Rather than firmly establishing the fundamental nature of the right of a woman to control her pregnancy, the Court produced an untenable framework that opened a Pandora’s box of state regulations and judicial interpretations designed to erode and eventually gut Roe v. Wade of any practical meaning. In Webster v. Reproductive Health Services, the Court took the opportunity to assert that the state’s interest in protecting “potential life” is compelling throughout the pregnancy. Finally in Planned Parenthood v. Casey, the Court shifted the burden of proof from the state’s requirement to show a “compelling interest” to regulate abortions, to now requiring the individual to prove that the state placed an “undue burden” on the availability of a pre-viability abortion.

The death knell of Roe, however, was sounded in the dissenting opinion. Four justices, Rehnquist, White, Scalia and Thomas, used the weakness of Roe’s holdings as the basis for challenging the basic principle that the right to an abortion is part of a woman’s fundamental right to privacy. They argued that the very fact that Roe’s framework has produced confusing judicial opinions and that Casey now enables broad restrictions on abortion, brings into question the nature of this right being fundamental to a scheme of ordered liberty. They boldface declared that Roe was incorrectly decided.
The Bush administration may very well create the opportunity for the Court to again review Roe v. Wade. Justice Blackmun’s weak grounding of reproductive decisions as a fundamental right, and the chaotic sliding scale that his medical framework evoked may very well spell the end of this most personal, most private and indeed, most fundamental of rights.

February 5, 2001
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