After 40 years, Roe v. Wade's legacy is deep divide across U.S.

By David Crary

Associated Press

Published: Monday, Jan. 21 2013 11:55 p.m. MST

The Roe opinion, written by Justice Harry Blackmun, asserted that the right to privacy extended to a women's decision on whether to end a pregnancy. States have been allowed to restrict abortion access at late stages of pregnancy, but only if they make exceptions for protecting the mother's health — and the net result has been one of the most liberal abortion policies in the world.

At the time of Roe v. Wade, abortion was legal on request in four states, allowed under limited circumstances in about 16 others, and outlawed under nearly all circumstances in the other states, including Texas, where the Roe case originated.

One of the most liberal members of the current Supreme Court, Justice Ruth Bader Ginsburg, is among those who have questioned the timing of the Roe ruling and suggested that it contributed to the ongoing bitter debate.

"It's not that the judgment was wrong, but it moved too far too fast," Ginsburg said at Columbia University last year.

She said the court could have put off dealing with abortion while the state-by-state process evolved or it could have struck down just the Texas law, which allowed abortions only to save a mother's life.

Asked about Ginsburg's musings, Cecile Richards of Planned Parenthood said the Roe ruling was critically needed to curb unsafe abortions in states where the procedure was outlawed.

"Women were paying the price with their lives," she said.

However, Carter Snead, a Notre Dame law professor who has studied abortion and bioethics, said Blackmun's opinion was wrong to dismantle state anti-abortion laws so sweepingly.

"One key virtue of democracy is that, win or lose, the outcomes are generally seen as legitimate because all of the competing sides have had their say," Snead said in an email. "In Roe, the court short-circuited this process entirely, and handed a near total victory to one side of a bitterly contested question on the gravest of matters."

Snead said abortion opponents have an enduringly compelling argument — "that the smallest, weakest, and most unwanted nevertheless have a claim on us." But he said this argument can't be translated into public policy without a change in the Supreme Court's makeup.

Looking ahead, there's no clear path toward an easing of the debate. Some activists and politicians say common ground could be found in a broad new campaign to curtail unintended pregnancies, but many anti-abortion leaders have shown little interest in this.

Some abortion opponents, such as Serrin Foster of Feminists for Life, urge bipartisan efforts to support pregnant young women as they pursue careers or education, so they don't feel financial pressure to have an abortion. But supporters of legal access to abortion look askance at such proposals if they are coupled with calls to take abortion decision-making out of a woman's hands.

For Carrie Gordon Earll, now senior policy analyst for the conservative ministry Focus on the Family, that Roe-established freedom of choice once seemed logical. She got pregnant in 1981 while attending a Christian college and opted to have an abortion.

She recently made a video expressing her regrets.

"I can look back at those 40 years and say without a doubt, the world is not a better place because of abortion, women are not in a better place," she says. "What it has created is a world where you're almost expected to abort if you're pregnant at an inopportune time."

In an interview, Earll mused on how the anti-abortion movement has persevered since Roe.

"We've had 40 years of marketing by Hollywood and the cultural elites that abortion is a good thing, and we still have a battle going on," she said. "We're holding our own."

A similar refrain of perseverance is sounded by Dr. Douglas Laube of Madison, Wis., who began performing abortions as part of his practice a year after the Roe decision.

"It was important for women to be able to legally ensure their right to make their own decision," said Laube, who is chairman of Physicians for Reproductive Health Choice. "But it served to polarize society politically."

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