Roe v. Wade at Forty

By Charles D. Dern Ph.D.

This January 22 marks 40 years since the Supreme Court overruled existing statutes in all 50 states and declared abortion to be a Constitutional right. When I first read Roe cover to cover some 25 years ago, I steeled myself for what I was sure to be a very sophisticated and well-thought-out argument as to why hundreds of years of jurisprudence that tended to protect the unborn should be thrown away. I was incredibly underwhelmed. As former Philadelphia Inquirer editorial page editor David R. Boldt wrote upon Justice Harry Blackmun’s (Roe’s chief author) retirement “Good riddance – he blew it on Roe.”

Roe famously argues that the “right to privacy” is foundational to the abortion decision, but only after admitting that “The Constitution does not explicitly mention any right of privacy.” Furthermore, Blackmun merely hypothesizes that the right is in the “penumbra” (fringe of the shadow of the) 14^th or 9^th Amendments. He wasn't sure! Roe further complicates things by acknowledging that “The privacy right involved ... cannot be said to be absolute” because “a State may properly assert important interests in safeguarding health, in maintaining medical standards and in protecting potential life.”

The state's ability to protect “potential life” is the core of Roe’s problem. Roe defines potential life as the point at which the unborn child can survive outside the womb, even with medical assistance. This point, also called “viability," was set at 26 weeks gestation at Roe’s writing. However, advancements in medical technology have moved viability to ever earlier points in gestation. Consider that if technology were able to sustain unborn humans outside the womb from the moment of fertilization, abortion could be outlawed completely. Now-retired Justice Sandra Day O’Connor recognized this in a later court case when she wrote that “The framework of Roe ... is on a collision course with itself.”

Even after instituting “potential life” as its core measure of fetal rights, Roe states, incredibly, that “We need not resolve the difficult question of when life begins” because of disagreements among those in medicine, theology and philosophy. Even if every theologian and philosopher agreed that “life begins at conception” what weight would have it really carried? And although those in medicine may have been validly confused in 1973, the incredible advances in biology since then now leave no doubt whatsoever that at the moment sperm and ovum meet, a new human life comes into being.

Some cannot understand why we cannot just leave Roe as “settled law.” But consider other Super Court decisions such as Plessey v. Ferguson’s “separate but equal” doctrine, which thankfully was overturned by the efforts of Thurgood Marshal in Brown v. Board of Education. (Paradoxically, Marshal then voted in favor of Roe as a Supreme Court justice.) Overturning Roe will not make abortion illegal. It will send the issue back to the states and the laws in effect in 1973 presumably would be reinstated. More importantly it would put the debate back into the hands of the people and the legislatures where it always belonged.

Finally, there is a sad irony that, Barack Obama, who refused as an Illinois state senator even to vote against a bill to outlaw the heinous procedure known as partial birth abortion, is to be re-inaugurated on Roe’s 40^th anniversary. He is the head of the party which conjured up the so-called “war on women” and yet thanks to that party, almost 30 million American women are not alive today who might have been if they had not been aborted. Here, 40 years hence, Roe v. Wade remains an intellectual house of straw that should be burned to the ground by the scorching facts of science and logic.

Charles D. Dern, Ph.D. teaches medical ethics at various Catholic institutions of higher education.