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
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