Monday, June 27, 2011

Abortion issues: a brief history of Roe v. Wade as a quasi-response to Jocelyn

There have now been a couple of posts from my very talented colleague Jocelyn regarding an abortion pledge that she posted, the second regarding positive and negative comments she has received from her initial post regarding the abortion pledge and some revisions to said pledge. There are parts of her pledge I agree with and parts of her pledge I disagree with, but I'm not going to get into those sort of details here. I am a very pro-choice individual, and that comes from a long background. My grandfather was a physician from the the late 1930s until the early 2000s. He was not particularly interested in politics (his top 5 interests were family, work, giant gap, big cars, suits, and Vegas), and as such he mostly voted Republican from the mid-60s on because the AMA told him to because of Medicare. I should add he was a first generation Jewish citizen whose mother was an illiterate candy store owner, so it's not like he was someone who you would have guessed would have voted mostly Republican presidential candidates from 1968 to 2000. But he knew what abortion was like before Roe v. Wade. My grandfather passed away when I was 21, and he firmly believed that no person who experienced or really knew what the pre-Roe v. Wade back alley abortions were like could think legalized abortion was a bad idea.

I led with that information because I don't want anyone to think that I take the following statement lightly: Roe v. Wade arguably may have been the worst thing to happen to the overall liberal cause in America. That isn't necessarily because it is the wrong decision, which I'll discuss a bit below, but instead because it gave the right a significant tool to use to make the Republican party the sole party for devout Christians in this country. It tied the 1970s conservative idea of a frighteningly expanding federal government invading the rightful sphere of state and local governments to a medical procedure that was viewed as murder by devout Christians. Now for the good thing that Roe v. Wade did for all Americans, liberals and conservatives alike: on the specific issues of abortion and unwanted pregnancy, Roe v. Wade has prevented a huge amount of suffering that results from unwanted pregnancy.

This post isn't to say anything bad about those who are fervently working to preserve the right to choose. They are necessary, and are doing a clear good. But a history of how we got to Roe v. Wade is important. It started with a 19th century law in Connecticut that prohibited contraception. When Planned Parenthood opened a clinic in New Haven, CT in the mid-20th century, they got hit with a fine for it, and as a result Griswold v. Connecticut made it all the way to the Supreme Court. The Court held that the Ninth Amendment provided a right of privacy to citizens under its penumbra, and that right to privacy included the right to use contraception. That right to privacy was expanded to abortion in Roe v. Wade.

Here's the problem: it's not clear the Griswold Court was right. On the other hand, the argument that the Griswold Court was wrong is no more coherent. I personally agree with the Griswold Court's decision... but I can't say that the Constitutional argument is unassailable. Nor can I argue that Justice Stewart's dissent that the Connecticut law was extraordinarily silly but that the Constitution does not prohibit silly laws was clearly wrong. But the arguments of my conservative friends are no stronger than my own on this issue.

I think we all need to be willing to say that we view the decisions in Griswold and Roe v. Wade as right or wrong because we either agree or disagree with the end result, not because we have some deep understanding of the limits of the Constitution. As I'll argue soon (I promise), you probably would have received a different answer regarding the proper limits of federal authority from each individual involved in drafting the Constitution.

But those of us on the pro-choice side also have to be willing to admit that a conservative Supreme Court overturning Roe v. Wade would not be the end of the world on that issue. Over-turning Roe v. Wade would not prohibit abortions; it would only make laws regarding abortions the province of the states. Presumably states like Massachusetts, New York and California would have very pro-choice regimes, while states like Utah, Oklahoma and Kansas would have very restrictive regimes. But it wouldn't be the end game for the pro-choice movement. Instead, it would make it a state by state legislative battle.

This isn't to say that the overturning of Roe v. Wade wouldn't be a setback in many ways. It would be. But we have to be honest about its complete impact.


  1. I actually had nightmares about abortion becoming a states' rights issue after reading this last night. I'm pretty sure that would be terrible. It's already bad enough that certain states have over-regulated abortion to the point where it might as well be illegal, but to give them the option to officially declare it so would be absolutely detrimental.

    Of course we'd keep fighting, but there are lots of places we just wouldn't win. Overturning Roe v. Wade would be catastrophic.

  2. Oh, I completely agree with you that there are places where overturning Roe v. Wade would at least be temporarily terrible. Much of the middle of the country, the southeast, and the mountain west would ban the practice, and if we were lucky those areas would have exceptions for extreme situations.

    From a purely legal perspective, nearly everyone's views on both Griswold and Roe v. Wade depend wholly on if you agree with the end result or not, without any concern for the process. Both those cases are, in my estimation, extremely close and difficult calls from the process perspective.

    There's a reason why President Obama hasn't gone through the Courts on gay rights issues. Roe v. Wade happened. There are positive and negative things that resulted from that. But a major negative from that is that it made abortion this mollifying issue. Abortion was simply not the issue it was before Roe v. Wade. After the Court's decision, though, the Republican party has used it as a very sharp weapon.

    Honestly, I'm curious if you asked the people involved in the abortion rights movement of the 1960s and 1970s if they would have proceeded in the same way if they could do it over again what they would say. Would they have gone through the courts or gone through the legislatures? Had they gone through the legislatures, the odds that abortion would be as hot an issue as it is now is pretty unlikely. It's more likely that it slowly would have become more accepted among the general populace, much as gay marriage is becoming. It wouldn't have become the powerful issue for Republicans that it currently is.

    But as I said, Roe v. Wade happened. Because abortion has been such a hot button issue its overturning would result in some very repressive anti-abortion measures in many states, at least temporarily. But at the least it should be a lesson that some issues we should try not to get the courts involved in if we can avoid it, even if it is going to cause some pain for us in the short term.

  3. It's an interesting argument. In Canada, they went through the legislature. These days, abortion in Canada is legal without restriction, and people don't really talk about it that much. But then, Canada is a very different place.

  4. Keep up the great work, Dan!

  5. Dan isn't actually blogging here, but we'll pass that along.

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