The Law Man: Roe vs. Wade, 40 years since decision

Jim Rockefeller | The “Law” Man

Dear Readers,

We will soon mark the 40th

anniversary of the Roe v. Wadedecision.  As Time magazine is doing in its latest issue, this is

an excellent moment to review the current state of abortion rights in this

country; Time’s cover story thematically notes that states have been

eating away at the scope of Roe,

since it was decided.

We have to start this process with understanding what Roe actually says and why.  In 1973, Associate Justice Harry

Blackmun, Jr., a Republican appointee and lifelong friend of the Chief Warren

Burger (also a Republican appointee) wrote the majority opinion.  Hence, Roe was not the result of “leftist”

legal dogma; it was, for the times, a pretty mainstream legal decision.

Roe’s roots lay in a “privacy right”

found in the “penumbra” of the Constitution.  Legal scholars had long

argued, and I think rightly, that the Bill of Rights (and other amendments like

the Civil Rights Amendments after the Civil War) were an expression of a

general concept that citizens have a right to privacy. Some states (Florida

does, Georgia does not, for instance) actually have specific constitutional

provisions guarding a right to privacy.  However, there is nothing

specifically written into the U.S. Constitution protecting an individual

privacy right.

We have a fervor for individual privacy rights and fear of “Big Brother.”

 Politically, this is expressed in concerns about things like a national

ID (a major argument against Social Security when passed as a part of the “New

Deal”) or in the context of gun enthusiasts worries about national registration

of firearms.  In fact, opponents of abortion, arguing for the “rights of

the unborn,” are actually, themselves,  making a constitutional privacy

right argument.  Hence, it is hard to argue against an ingrained

constitutional right to privacy.

In 1965, the United States Supreme Court first found a right to privacy in

taking a “weed-eater” to “moral’s” statutes, when it found unconstitutional a

Connecticut law prohibiting advise and dispensation of birth control literature

and devices to married persons.  State courts quickly jumped on board and,

by 1973, when Roe was decided the

idea that there is a constitutional right to privacy was pretty firmly

entrenched in our legal firmament.

Roe tried to balance the rights of

women, states, and the life-potential of a fetus.  In the first trimester

of pregnancy, states have almost no ability to regulate abortions; in the

second trimester, states can “reasonably regulate” abortions; and, in the last

trimester states can ban abortions, except for medical necessity.  This

decision, rightly or wrongly, was based on 1973 medicine and advancements in

medicine might call into question some of its “viability of fetus” foundations..

As Time magazine states, the current political battle about

abortion, is really being fought at the State level concerning “regulation”

rights States have outside the 1st trimester of pregnancy.  And, these

developments illustrate how elegantly our political system operates; a classic

example of how our federalist system of government, with States retaining

significant sovereignty rights, operates.

Since a constitutional right to an abortion became the law of the land,

conservative state legislatures have tried to erect almost insurmountable

barriers.  From waiting periods, to underage consent law, to mandatory

counseling to, now, mandatory sonograms and onerous limits on physician

practice, in some states abortion has become almost non-existent (or

unavailable).  Since Roe, the

Supreme Court has said, in Casey v.

Planned Parenthood that such restrictions were constitutionally legal so

long as the law was not “unduly burdensome.”

Frankly, this is a well thought out political  approach since Roe explicitly approves regulation of

abortion.  Going forward, some of these laws may be found by the Supreme

Court so burdensome as to be “unduly burdensome” under Casey; particularly, when it comes to rape, incest and health of

the mother.  Perhaps, though, with the Time magazine cover story

noting that the pro-choice movement may have run out of steam, we can all spend

less time in the courtroom and more time cooperatively focusing on what most

Americans agree – Abortion should be rare.

Local attorney Jim Rockefeller owns the

Rockefeller Law Center and is a former Houston Co. Chief Assistant District

Attorney, and a former Miami Prosecutor. Visit www.rockefellerlawcenter.comto submit confidential legal questions,

and to review former articles and  Frequently Asked Questions.

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