"At the heart of liberty is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of human life.
Beliefs about these matters could not define the attributes of personhood were
they formed under compulsion of the State."1 U.S. Supreme Court Justices
O'Conner, Kennedy and Souter Planned Parenthood of Southeastern Pennsylvania v.
Casey Abortion in the United States Before Roe When Roe v. Wade was decided in
January 1973, abortion except to save a woman's life was banned in nearly
two-thirds of the states.2 Laws in most of the remaining states contained only a
few additional exceptions.3 It is estimated that each year 1.2 million women
resorted to illegal abortion,4 despite the known hazards "of frightening
trips to dangerous locations in strange parts of town; of whiskey as an
anesthetic; of 'doctors' who were often marginal or unlicensed practitioners,
sometimes alcoholic, sometimes sexually abusive; unsanitary conditions;
incompetent treatment; infection; hemorrhage; disfiguration; and death."4
The Constitutional Development of the Right to Privacy During the half century
leading up to Roe, the Supreme Court decided a series of significant cases in
which it recognized the existence of a constitutionally protected right to
privacy that keeps fundamentally important and deeply personal decisions
concerning "bodily integrity, identity and destiny" largely beyond the
reach of government interference.6 Citing this concern for autonomy and privacy,
the Court struck down laws severely curtailing the role of parents in education,
mandating sterilization, and prohibiting marriages between individuals of
different races.7 Important aspects of the right to privacy were established in
Griswold v. Connecticut8, decided in 1965, and in Eisenstadt v. Baird, decided
in 1972.9 In these cases, the Supreme Court held that state laws that
criminalized or hindered the use of contraception violated the right to privacy.
Having recognized in these cases "the right of the individual to be free
from unwarranted governmental intrusion into matters so fundamentally affecting
a person as the decision whether to bear or beget a child,"10 the Court
held in Roe that the right to privacy encompasses the right to choose whether to
end a pregnancy.11 The Court has reaffirmed this holding on multiple occasions
throughout the past 25 years,12 noting in 1992 that "[t]he soundness of
this . . . analysis is apparent from a consideration of the alternative."13
Without a privacy right that encompasses the right to choose, the Constitution
would permit the state to override not only a woman's decision to terminate her
pregnancy, but also her choice to carry the pregnancy to term.14 The Roe
Compromise Although Roe invalidated restrictive abortion laws that disregarded
women's right to privacy, the Court recognized a state's valid interest in
potential life.15 That is, the Court rejected arguments that the right to choose
is absolute and always outweighs the state's interest in imposing limitations.16
Instead, the Court issued a carefully crafted decision that brought the state's
interest and the woman's right to choose into balance. The Court held that a
woman has the right to choose abortion until fetal viability, but that the
state's interest generally outweighs the woman's right after that point.17
Accordingly, after viability -- the time at which it first becomes realistically
possible for fetal life to be maintained outside the woman's body -- the state
may ban any abortion not necessary to preserve a woman's life or health.18 25
Years of Roe: A Better Life for Women By invalidating laws that forced women to
resort to back-alley abortion, Roe was directly responsible for saving women's
lives. It is estimated that as many as 5000 women died yearly from illegal
abortion before Roe.19 Since the legalization of abortion in 1973, the safety of
abortion has increased dramatically. The number of deaths per 100,000 legal
abortion procedures declined more than five-fold between 1973 and 1991.20 In
addition, Roe has had a positive impact on the quality of many women's lives.
Although most women welcome pregnancy, childbirth and the responsibilities of
raising a child at some period in their lives, few events can more dramatically
constrain a woman's opportunities than an unplanned child. Because childbirth
and pregnancy substantially affect a woman's "educational prospects,
employment opportunities, and self-determination," restrictive abortion
laws narrowly circumscribed women's role in society and hindered women from
defining their paths through life in the most basic of ways.21 In the 25 years
since Roe, the variety and level of women's achievements have reached
unprecedented levels. The Supreme Court recently observed that "[t]he
ability of women to participate equally in the economic and social life of the
Nation has been facilitated by their ability to control their reproductive
lives."22 Into the New Millennium: What Will the Next 25 Years Bring? In
1992, the Court rendered its most important decision in the abortion area since
Roe. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court
reaffirmed Roe, while at the same time sharply restricting its protections. The
Casey Court abandoned the strict scrutiny standard of review and adopted a less
protective standard that allows states to impose restrictions as long as they do
not "unduly burden" a woman's right to choose. Under this new
standard, the Court approved state obstacles that it had previously found to
violate the right to privacy and effectively invited states to impose barriers
on women's access to abortion.23 Indeed, today, states are enforcing more
restrictions that impede women's access to safe, legal abortion than at any time
since Roe was decided twenty-five years ago.24 It seems inevitable that great
strides will be made in the next millennium in science, technology, athletics,
communication, and in numerous other fields of human endeavor. What is less
clear is whether proponents of women's reproductive health and freedom will be
able to move forward in the 21st century -- to secure better access to effective
methods of contraception, comprehensive sexuality education, and quality health
and child care -- or will remain locked in a struggle against further
deterioration of the right to choose ostensibly secured by Roe a quarter century
ago. It is past time for the nation to develop policies that secure access to
abortion, make abortion less necessary, and improve reproductive health. Our
nation must commit resources to prevent unintended pregnancy by promoting
sexuality education, family planning and healthy childbearing. Only then will
the promise of Roe be fulfilled.
Bibliography
Richard Schwarz, Septic Abortion (Philadelphia: J.B. Lippincott Co., 1968),
7; Willard Cates, Jr., "Legal Abortion: The Public Health Record,"
Science, vol. 215 (Mar. 1982): 1586. Walter Dellinger and Gene B. Sperling,
"Abortion and the Supreme Court: The Retreat from Roe v. Wade," 138
University of Pennsylvania Law Review 83, 117 (Nov. 1989). Casey, 505 U.S. at
927 (Blackmun, J., concurring and dissenting). See Meyer v. Nebraska, 262 U.S.
390 (1923); Skinner v. Oklahoma, 316 U.S. 535 (1942); Loving v. Virginia, 388
U.S. 1 (1967). Griswold v. Connecticut, 381 U.S. 479 (1965). Eisenstadt v.
Baird, 405 U.S. 438 (1972). Eisenstadt, 405 U.S. at 453 (emphasis omitted). Roe,
410 U.S. at 153. See, e.g., Akron v. Akron Center for Reproductive Health, Inc.,
462 U.S. 416 (1983); Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747 (1986). Casey, 505 U.S. at 859. Casey, 505 U.S. at
859. Roe, 410 U.S. at 159. Roe, 410 U.S. at 153-54. Roe, 410 U.S. at 163-65.
Roe, 410 U.S. at 163-64. Schwarz, Septic Abortion, 7. Lisa M. Koonin et al.,
"Abortion Surveillance -- United States, 1993 and 1994," CDC
Surveillance Summaries, Morbidity and Mortality Weekly Report, vol. 46, no.
SS-4, (Aug. 8, 1997): 96. Casey, 505 U.S. at 928 (Blackmun, J., concurring and
dissenting) Casey, 505 U.S. at 856. Casey, 505 U.S. at 881-87. Who Decides? A
State-by-State Review of Abortion and Reproductive Rights, 1998 (Washington,
D.C.: The NARAL Foundation/NARAL, 1998).