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Today Marks 46 Years Since Roe v. Wade, and Both Liberals and Conservatives Are Still Getting it Wrong


January 22 marks 46 years since the Supreme Court handed down its ruling in Roe v. Wade, and in all that time, Americans have made very little progress in understanding what the case actually did. Political candidates from president to local sheriff use abortion as a central talking point to rally supporters and alienate dissenters. While many Americans are self-proclaimed one-issue voters, few appear to have any material grasp on Roe’s past, present, or future.

In the spirit of raising the American abortion debate to an intellectual level commensurate with its emotional one, I’d like to point out some glaring errors made by well-intentioned folks on both sides of this issue.

  1. Regulation of abortion is, at its heart, a state (not a federal) issue

The relationship between federal and state governments is extremely complex. Although many people believe the federal government is simply universally larger and more powerful, that’s not exactly accurate. Like partially-intersecting circles in a Venn diagram, the relative authority of federal versus state authority depends on the subject matter at hand. For example, when it comes to a topic such as interstate trade, the federal government has the last word. But for topics like health and safety, states have primary authority – subject to some federally-mandated limitations.

So while presidential candidates can’t resist campaigning on pro-life or pro-choice platforms, doing so always obscures the legal reality that each state has its own set of laws relating to abortion. If you’re a one-issue voter, you need pay attention to what your state’s legislature thinks about abortion, not so much what the president does. The federal government’s take on abortion isn’t irrelevant, but it’s several steps removed from the main event, which is state law. If you don’t like it, talk to Thomas Jefferson.

  1. Roe v. Wade was about setting a floor, not a ceiling.

Norma McCorvey (Roe’s plaintiff) argued that a Texas state statute was overly restrictive. Ultimately, SCOTUS agreed with her and struck it down. SCOTUS went on to create a framework upon which states could rely for determining which abortion laws would similarly be too harsh and which would be acceptable.

No one – not the Dallas District Attorney Henry Wade, not the State of Texas, not anyone— was even arguing that SCOTUS somehow rule that states couldn’t allow abortions if they wanted to do so. The legal issue was whether states could legally prohibit abortions.

States that are politically more left-leaning (such as New York, New Jersey, and California) aren’t likely to pass strict abortion laws any time soon. That means that even if Roe v. Wade was overruled, lambasted, and otherwise stricken from the history books, early abortions would go on being perfectly legal in those states. Whether that reality is welcome or reviled, it leaves responsibility with state legislatures.

3. Roe wasn’t a sweeping “win” for women – it was a compromise.

The Roe Court decided 7 to 2 to adopt a framework that attempted to take into account the unique complexities of legal issues involving pregnancy and the unborn. States could not pass laws that forbade abortion during the first trimester, a period during which the woman’s legal interests were paramount. During the final trimester, however, the legal focus shifted away from the woman and toward society’s desire to protect the unborn. Laws to restrict third-trimester abortion could pass constitutional muster.

The second trimester became something of a gray area, in which states could pass some anti-abortion legislation, so long as those laws sought to regulate (and not eliminate) abortion. Later, in the 1992 case Planned Parenthood v. Casey, these rules were further refined, and the trimester framework was updated to reflect more modern medical understanding that viability wasn’t always a strict function of the pregnancy timeline. As medical science continues to advance, the legal function of viability will likely do so as well.

4. Roe didn’t actually set out a “right to an abortion.”

Warning, I’m about to get a little law nerdy here. Under our Constitution, individuals have lots of rights – and the biggies are the ones you hear about all the time, like voting, free speech, freedom to practice one’s religion, and so on. The “right to have an abortion” is the practical result that grew from an expanded definition of the First Amendment. Almost a decade before Roe, SCOTUS decided that although the First Amendment doesn’t explicitly say so, its guarantees include an implied right to privacy. That concept – that we as individuals have a Constitutional guarantee to privacy – has since become a hard and fast rule.

The part that’s not so clear is what exactly “privacy” entails. One thing we’ve generally agreed upon is that sex and contraception, especially between spouses, is private (and therefore outside the scope of what states may regulate), as are certain matters of child-rearing and education. There’s plenty of debate about other topics (such as, for one, whether euthanasia should be a matter of “privacy”) too.

And then we have abortion – the mother of all privacy debates (pun totally intended). Roe v. Wade declared that, at least to some degree, pregnancy is a private matter and that a woman seeking to end her pregnancy would have some right to do so under the First Amendment. But pregnancy and abortion presented a unique problem to the Court: the underlying facts of any particular case would inevitably change over time as a pregnancy developed.

Critics of Roe have made the legal argument that the right to have an abortion was essentially created out of thin air – an implied right that’s part of another implied right. Proponents, on the other hand, often center their arguments around facts related to consequences – that restrictive abortion laws disadvantage the poor, and that prohibiting abortion creates its own safety risks for women with unwanted pregnancies. Here, the academic argument – about the legal scope of an implied right to privacy found in the First Amendment – is really what matters.

[Image via Saul Loeb/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos