Roe vs. Wade: Has it Been Overturned as a Matter of Fact

In its 1973 landmark decision in Roe vs. Wade, the Supreme Court articulated for the first time that a woman’s right to an abortion was protected by the U.S. Constitution. While women throughout the Nation rejoiced in the fact that the Court had decided to place individual rights on a pedestal, Roe subsequently set off a massive backlash, during which conservative interest groups mobilized in order to persuade the Court to reconsider its ruling. Although the Court initially took pride in safeguarding Roe’s expansive protections, the more conservative Court of recent years has issued several rulings designed to limit the right to abortion. For example, in the 1989 case of Webster vs. Reproductive Health Services, the Supreme Court upheld Missouri’s decision to prohibit the expenditure of public funds or the use of public facilities for the purpose of performing an abortion. In addition, in the 1991 case of Planned Parenthood of Southeastern Pennsylvania vs. Casey, the Court upheld several restrictions of a woman’s right to an abortion, including a 24 hour waiting period, requiring a child to obtain the consent of a parent or judge, and an informed consent provision. Although these decisions, coupled with a number of other abortion decisions issued by the Court beginning in the 1980s, severely limited the ability of many women to undergo abortion procedures, the media nevertheless held that in general Roe’s central tenets were still intact and thriving. You would be hard pressed today to find a well known political or legal analyst who believes that Roe has been overturned as a matter of fact. However, in order to determine whether or not Roe still stands as originally decided, it is necessary to answer two questions:
· What constitutes the core of the Court’s decision in Roe?
· Have any of the Court’s recent decisions significantly curtailed Roe’s core?
The central holding of Roe essentially consists of two parts. First, that a woman has the right to choose to terminate her pregnancy before viability and to do so without undue interference from the State. The period of viability has been scientifically defined to occur at the end of the second trimester, or around the 27th or 28th week of pregnancy (McBride 2). In other words, a woman’s right to undergo an abortion procedure can never be denied by the State prior to the 27th or 28th week of pregnancy. Second, the State does retain the authority to ban abortion after the period of viability, except if the procedure is necessary in order to preserve the life or health of the mother (Henry 8). Writing for the Roe majority, Justice Blackmun attempted to devise a system of standards for determining under what circumstances a State had a compelling interest in restricting a woman’s right to an abortion, which has since become known as the trimester framework. The framework consisted of the following guidelines:
· Prior to the end of the first trimester, a woman is free to undergo an abortion without any form of interference or restriction on behalf of the State.
· During the second trimester, the State may regulate abortion from this point forward by adopting measures reasonably designed to safeguard the health of the mother.
· During the third trimester (post-viability), the State could choose to proscribe abortion, except when necessary to preserve the life or health of the mother.
By approving restrictions on the ability of a woman to obtain an abortion, the Court has invalidated much of the trimester framework. However, it does not follow from this fact alone that Roe is dead for all practical purposes. Although it served as a useful method by which to initially formulate the abortion timeline, Justice Blackmun’s trimester framework is not an essential part of this holding. While the framework precludes the states from enacting any restrictions whatsoever during the first trimester, this peripheral protection is not necessary in order to ensure that a woman’s right to an abortion is safeguarded prior to viability. For example, while the enactment of a 24 hour waiting period measure may inconvenience a woman seeking an abortion, it ultimately would not restrict her right to actually undergo the procedure. Despite the fact that the peripheral protections inherent in the framework are greatly beneficial to women, their demise would not alter Roe’s core holding. Thus, in order to substantially impair Roe’s core, a Supreme Court decision would have to either restrict the right to abortion prior to viability, or approve the ability of the State to restrict late term abortions when the life or health of the mother is in jeopardy. At least until 2007, the Supreme Court was unable to do either.
However, in the 2007 case of Gonzales vs. Carhart, the Supreme Court struck a significant blow to Roe’s core holding for the first time. The Carhart dispute involved the legality of the Partial-Birth Abortion Ban Act of 2003. The act proscribed the method of intact dilation and extraction from being used by a medical doctor in order to end a fetal life (Grossman and McClain 1). While the law contains an exception for when the mother’s life is in danger, it lacks a health exception. In its 5-4 ruling, the Court upheld the act, and in turn limited the ability of many women to procure an abortion even prior to the period of viability. As a result of Carhart, a woman planning on using the intact dilation and extraction method can be prohibited from having an abortion as early as the 12th week of pregnancy. According to Justice Blackmun, while the states could impose restrictions on a woman seeking an abortion prior to the period of fetal viability, they were not allowed to proscribe abortion. Due to the fact that Blackmun did not create any exceptions to this rule within his opinion, we can infer that Roe prohibits the states from proscribing a particular method of abortion as well, prior to fetal viability. This decision is the first time since 1973 that the Court has upheld the ban of an abortion procedure before the period of fetal viability.
Anti-abortion activists would counter this argument by stating that a woman is not precluded from having a second trimester abortion: she is only prohibited from using one particular method. However, the reason intact dilation and extraction is used instead of other methods is because a woman has the least probability of experiencing permanent injury to her uterus when this technique is used (Lithwick 2). Prohibiting dilation and extraction will not cut back on second trimester abortions: it will simply cause more women to be injured in the process. As a result of the Carhart ruling, some women with heart disease will thus be unable to undergo abortions after the 12th week of pregnancy, due to the fact that any other method of abortion besides dilation and extraction may be detrimental to their health. At least for this specific disadvantaged class of women, the right to procure an abortion at any time prior to the period of fetal viability no longer exists. Justice Blackmun’s opinion in Roe did not only guarantee the right to undergo a pre-viability abortion to the majority of women: rather, Blackmun established the principle that this right could not be denied to even a single woman. Thus, while Carhart did not overturn Roe directly and place the abortion decision entirely into the hands of the State, it did significantly curtail Roe’s core by limiting the opportunity for at least some women to undergo second trimester abortions.
The media’s inadequate coverage of the implications of the 2007 Carhart decision exemplifies that when deliberating controversial and multifaceted issues such as abortion, it is not always prudent to take the media at its word. Instead, in order to gain a true understanding of the complexities of the issue, it is necessary to dig deeper and explore below the surface of the issue. As a result of the media’s lack of in-depth analysis, for many people it has become almost second nature to conclude that Roe is safe and will continue to be considered the controlling principle in the foreseeable future. However, as shown by the recent Carhart decision, this is not necessarily the case. The elevation of only one more conservative justice to the Supreme Court could ultimately result in the overturning of Roe altogether, and a return to the dangerous days of back alley abortions.

Works Cited
Roe vs. Wade, 410 US 113 (1973)
Webster vs. Reproductive Health Services, 492 US 490 (1989)
Planned Parenthood of Southeastern Pennsylvania vs. Casey, 510 US 1309 (1992)
Gonzales vs. Carhart, 127 US 1610 (2007)
Henry, Kelly Sue. “Planned Parenthood of Southeaster Pennsylvania vs. Casey: The
Reaffirmation of Roe or the Beginning of the End.” University of Louisville Journal of Family Law. Winter 1993.
McBride, Alex. “Landmark Cases: Roe vs. Wade.” PBS: The Supreme Court. 2007. 23 April
2009.
<http://www.pbs.org/wnet/supremecourt/rights/landmark_roe.html>
Grossman, Joanna and McClain, Linda. “Gonzales vs. Carhart: How the Supreme Court’s
Validation of the Federal Partial-Birth Abortion Ban Act Affects Women’s Constitutional Liberty and Equality.” Findlaw Legal News. May 2007. 23 April 2009.
<http://writ.corporate.findlaw.com/commentary/20070507_mcclain.html>
Lithwick, Dahlia. “Father Knows Best: Dr. Kennedy’s Magic Prescription for Indecisive
Women.” Slate. April 2007. 23 April 2009.
<http://www.slate.com/id/2164512/entry/2164020>