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Cover story

Back to the future: Post-Roe world would look a lot like today’s

For all of the debate and rancor over abortion during the past 30 years, advocates on both sides of the issue agree that little would practically change if Roe v. Wade were overturned.

Journalistic and political shorthand, as it has developed over the past 30 years, has made Roe v. Wade synonymous with the status of legal abortion in the United States.

In fact, on Jan. 22, 1973, the U.S. Supreme Court issued two opinions -- Roe v. Wade and Doe v. Bolton.

It started, in one sense, with 23-year-old Norma McCorvey, who came to the attention of Dallas attorneys Sarah Weddington and Linda Coffee in late 1969. McCorvey -- out-of-work and pregnant, with a history of drug abuse and failed relationships -- sought an abortion, then illegal under an 1854 Texas statute. An adoption lawyer referred McCorvey to Weddington and Coffee, who were seeking a plaintiff to challenge the Texas law. McCorvey agreed to be the plaintiff. She became “Jane Roe.”

Meanwhile, similar efforts were underway in Georgia, where pro-choice attorneys sought to challenge that state’s restrictive abortion law. Sandra Bensing, a low-income mother of three, separated from her husband, became “Mary Doe.”

In October 1972, the Supreme Court heard arguments in the two cases; three months later the court released its opinions.

Writing for the court’s 7-2 majorities, Nixon appointee Harry Blackmun laid out a system where the court tried to balance the privacy rights of a woman (which it located in the 14th Amendment) with the state’s interest in protecting viable fetal life. Under Roe, the abortion decision would be the woman’s alone for the first three months of pregnancy; in the second and third trimesters, the state’s interests would expand, allowing progressively greater involvement as fetal viability increased.

Under Doe, meanwhile, the court spelled out the conditions under which a state could intervene to regulate second- and third-trimester abortions. On paper, those restrictive powers seemed broad, but subsequent judicial interpretations made clear that the “health of the mother” exceptions found in Doe were expansive, and greatly limited a state’s ability to restrict late-term abortions.

What would happen if, as antiabortion advocates desire, Roe and Doe were overturned?

Both sides of the debate agree: the issue would be returned to the states, much as it was prior to Jan. 22, 1973.

“It’s not necessarily a perfect solution,” acknowledged Americans United for Life attorney Denise Burke. Still, she said, some states would “consider a ban [on abortions] except in the most extreme cases,” while many more would consider provisions -- a ban on “partial birth abortion,” legislation requiring that doctors obtain the “informed consent” of a woman seeking an abortion, and parental notice provisions for minors seeking abortion -- that are not feasible as long as abortion is a constitutional right.

“The loss of Roe would be a terrible thing,” said Catholics for a Free Choice president Frances Kissling, “but that does not mean that abortion would not continue to be legal in the United States.”

According to Kissling, “It would be extremely difficult for any state, no matter how conservative it might be … to make abortion largely illegal without facing the wrath of the citizens of that state.”

-- Joe Feuerherd

National Catholic Reporter, January 17, 2003