Fifty years ago, the Supreme Court issued its decision in Roe v. Wade . The Court ruled in favor of the anonymous Jane Roe with a companion decision in Doe v. Bolton. Today a different Supreme Court reversed Roe v. Wade, and with it 50 years of the legal precedent upholding the constitutional right to abortion.
Roe v. Wade stood for the proposition that a right to privacy under the due process clause of the 14th Amendment to the U.S. Constitution extends to a woman’s decision to have an abortion. Today, in Dobbs v. Jackson Women’s Health Organization, Justice Alito writing for the majority holds:
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand. 597 U. S. 6 (2022)
The cited dissent by the late Justice Antonin Scalia is from Casey v. Planned Parenthood, the 1992 case that upheld the right to have an abortion previously established in Roe.
After today’s opinion, however, Roe v. Wade is dead.
One in three U.S. women will undergo an abortion by the time she is 45 years old. Contrary to popular conceptions of who these women are, half are married or living with a significant other, and 73 percent are affiliated with a religion.
Roe v. Wade has long been controversial. Still, many women took the right to an abortion for granted. Few who came of age in the Roe era fully appreciated the days of illegal abortions that predated that ruling — procedures that all-too-often resulted in injury, loss of fertility, and death.
For fifty years that's what I had, the steady and stealthy rollback of Roe was been happening all around us, culminating in the frontal attack that ended today in the U.S. Supreme Court. This battle lost, we are likely to see a return to the “bad old days” in which women who have no access to abortion desperately seek one by any means necessary.
How quickly we forget.
So let’s remember, shall we?
The women who were forced to suffer through illegal abortions before Roe v. Wade never forgot.
Season 7 of Slow Burn begins with the story of Shirley Wheeler, the first woman criminally prosecuted in the U.S. for having an abortion. In 1970, three years before Roe, Florida prosecutors charged the 22-year-old with manslaughter, subjecting her to public humiliation and condemnation for terminating her pregnancy. Before that ordeal, she’d endured the tragic secrecy of an illegal abortion — traveling blindfolded, unaware of where she going, who was performing the procedure, or precisely what was happening to her body. Wheeler’s fortitude was put to the test even before she was arrested by Florida police.
Truth be told, what happened to Wheeler was uncommon. More often, authorities prosecuted abortion providers. In a 2008 piece for The New York Times, Dr. Waldo Fielding, a retired obstetrician and gynecologist, recalled the days before Roe with incisive but frightfully poignant insight:
The worst case I saw… and one I hope no one else will ever have to face, was that of a nurse who was admitted with what looked like a partly delivered umbilical cord. Yet as soon as we examined her, we realized that what we thought was the cord was in fact part of her intestine, which had been hooked and torn by whatever implement had been used in the abortion. It took six hours of surgery to remove the infected uterus and ovaries and repair the part of the bowel that was still functional.
Fielding offers such grisly detail for the essential context it provides. This landscape — littered with blindfolds, death-defying conditions, and horrific outcomes—became the battleground on which we waged our war for the “right to choose.”
Norma Nelson was raised in Texas by a violent, alcoholic, single mother. At age fourteen, Norma dropped out of high school to marry Woody McCorvey. But he was also violent and abusive. So, she left him to move back in with her mother before giving birth to her first child at age sixteen.
The following year, Norma became pregnant again. This time, she placed the baby with an adoption service. When Norma told her mother she might be a lesbian, her mother disowned her and took custody of Norma’s first-born child.
By the time she’d turned twenty-one, Norma had moved in with her father and was working low-paying jobs. She became pregnant for the third time. Texas law allowed for abortion only in cases of rape and incest. Norma had a scheme to obtain an abortion under the pretense of sexual assault, but without a police report or other documentation, her plan failed. She then tried to get an illegal abortion, but the authorities had closed all the clinics. It was 1970, the same year authorities in Florida were busy prosecuting Shirley Weaver.
Norma had never heard of Shirley. But she had heard of two of the best women’s rights attorneys in the country: Linda Coffee and Sarah Weddington. They were working to challenge the nation’s laws limiting access to abortion. In Norma, they found their “Jane Roe” — a woman who would remain anonymous but who could serve as the legal stand-in for poor, young, unemployed women seeking an abortion.
So began the story of Roe v. Wade.
During their three-year odyssey to the U.S. Supreme Court, Norma’s third child was born and adopted, but she remained tied to the case. Days after the Roe decision came down, McCorvey explained that she had wanted the abortion because she was unemployed and extremely depressed.
Norma McCorvey died in 2017. Over the decades, she flip-flopped when asked about her role in the historic case, even expressing regret about her role in it. She converted to Catholicism, joined the pro-life movement, and stated “I was the Jane Roe of Roe vs. Wade, but Jane Roe has been laid to rest.” On her deathbed, however, she told documentarians for the film AKA Jane Roe, “If it’s just the woman’s choice, and she chooses to have an abortion, then it should be safe. Roe v. Wade helped save people’s lives.”
Why are we Surprised?
Roe v. Wade has never been settled law.
In the plain language for which he is famous Justice Alito writes today in Dobbs:
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” 597 U. S. 5 (2022)
Why are we surprised? Roe has been under attack ever since it dropped — and with it, our rights as women to work, decide when to start a family (if ever), and make choices about our reproductive lives.
Back in 2012, on the 40th Anniversary of Roe, the late Rush Limbaugh weighed in on the issue, on his still-popular radio show.
A caller actually compared legalized abortion to the shootings at the Sandy Hook Elementary School. Limbaugh quipped, “You know how to stop abortion. Require that each one occurs with a gun.”
Despite his heartless humor, Rush Limbaugh was not alone in his view.
Check out Americans United for Life, including their call for “Exposing Abortionists and Abolishing the Industry,” “Advancing Alternatives to Anti-Life Violence and Harm,” and their podcast, “Life, Liberty and the Law.” The group also releases an annual “Life List,” celebrating states with the greatest number of restrictions on abortion. This year, they hold out Arkansas as America’s “most protected” state for the second year in a row. Vermont is derided as the “least protected.”
It’s no wonder Arkansas wins kudos from the pro-life non-profit. In 2021, legislators there passed sweeping legislation banning nearly all abortions in the state, and permitting abortion only to save the life of the woman. The Arkansas law does not even provide exceptions for cases of rape or incest.
The mission of organizations like Americans United for Life and other pro-life groups is clear: to defend life from conception to natural death.
And here’s the thing we need to understand: this is not a fringe position.
Before today, twenty-nine percent of registered voters said they wanted the Supreme Court to overturn Roe v. Wade. They have won that battle.
Roe v. Wade is not the issue.
That is what I said. Roe v. Wade is NOT the issue.
We need to focus on our ground game.
Abortion and Roe are not interchangeable terms. The Supreme Court did not create, invent or even increase the rate of abortion with its decision in 1973. A careful reading of Roe reveals the Court’s recognition of just this. Justice Harry Blackmun in Roe v. Wade recognized the tension between interests — and leaves it to the states to balance those interests:
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. 410 U.S. 113, 163 (1973)
The states. This is where we need to take the fight. We must retrain our sights on the statehouses poised to restrict our rights, state by state, across this country. As women’s rights attorney Nancy Stearns told Slow Burn, what happened to Shirley Wheeler “could happen today. … it IS happening today.”
Anti-abortion laws go back only to the mid-to-late 1800′s. But the practice is as old as the Republic. Justice Blackmun, writing for the majority in Roe, simply recognized a woman’s right to terminate her pregnancy in a medically acceptable setting, in consultation with a medical professional, and in constitutional privacy. As he noted then, and as the Court held today: the state has an interest in this business. But so do women.
It is for us to fight for our rights strategically and tenaciously.
Roe v. Wade is not like a Typewriter.
This is a typewriter. It’s obsolete. Now Roe v. Wade is obsolete, too. But unlike the typewriter, it will not be replaced with something new and improved.
Unlike the typewriter, rotary phone, and manual transmission — all of which were replaced with something else, something better — our civil rights can evaporate entirely if we are complacent. And this one — the right to an abortion as found in the 14th Amendment — just disappeared right before our eyes.
This, after a watershed year for the Anti-Abortion Movement.
To see the picture clearly, including a state legislation tracker, visit the Guttmacher Institute, the leading research and policy organization dedicated to advancing reproductive rights.
Here’s a summary. In addition to today’s landmark victory in the U.S. Supreme Court:
- 46 states and the District of Columbia now require hospitals, facilities and physicians providing abortions to submit regular and confidential reports to the state.
- 37 states require parental involvement before a minor obtains an abortion.
- 27 states have varying requirements for an ultrasound before an abortion is provided. And critically,
- 13 states have abortion trigger bans — that means they have a trigger plan in place that kick into effect today with the Supreme Court decision overturning Roe v. Wade.
Do you get me? This is The War on Women that I’ve written about before.
But this is not over. This war has only just begun.