Yesterday marked the 44th anniversary of the Supreme Court decision in Roe v. Wade, which established a woman’s constitutional right to an abortion and made unconstitutional most state efforts to regulate abortion practices. The ruling rested on incredibly shaky legal reasoning, as the seven justices in the majority manufactured a mysterious “right to privacy,” discovered in the due-process clause of the 14th Amendment, to establish a woman’s right to choose abortion. In addition, in the majority opinion, Justice Harry Blackmun found that “the word ‘person’, as used in the Fourteenth Amendment, does not include the unborn,” plausibly the most flawed legal argument since the dehumanizing decision in Dred Scott v. Sandford.
First, many Americans do not understand the legal ramifications that would occur if Roe were to be overturned. Though most Americans oppose overturning it, data indicate that many do so because they that believe that, in the absence of Roe, abortion would be outlawed nationwide. In reality, if the Supreme Court were to overturn some or even all of Roe, the question of abortion would return to the states, allowing state governments to establish permissive abortion laws or to regulate abortion to protect the unborn. As state laws currently stand, nearly all would permit abortion at least until the 20th week of pregnancy; it would require a federal law or constitutional amendment to make abortion illegal in all 50 states.
Furthermore, the decision in Roe did not create an absolute right to abortion. Instead, it held that government restrictions on a woman’s right to abortion must be subject to strict scrutiny, the highest possible standard of judicial review. It also permitted states to regulate abortion later in pregnancy, except in cases of rape, incest, or the mother’s health. Some of our current slate of expansive abortion rights comes also from two other Supreme Court cases: Roe’s companion case, Doe v. Bolton (1973) and Planned Parenthood v. Casey (1992).
Perhaps the Court would not have been so determined to uphold Roe if it had more seriously considered the fundamental flaws in that original decision. One prominent abortionist involved in the case, Bernard Nathanson, later admitted that he and fellow abortion proponents in the medical field cooperated to falsify statistics on the number of illegal abortions and maternal deaths in the decades preceding Roe. When Nathanson later realized the horror of abortion and quit the practice, he explained publicly how he and other key individuals used the false information to convince the Court that legalizing abortion would be safer than allowing it to continue illegally.
Undoubtedly this argument, that the illegality of abortion was leading to the deaths of countless women at the hands of “back alley butchers,” played an essential role in leading the seven justices to conclude that legalizing abortion would prevent harm. In fact, Blackmun in the majority opinion cited the papers of NARAL attorney Cyril Chestnut Means Jr., who falsified the legal history of abortion to make it appear as if abortion restrictions were not imposed until the 19th century and were created then only to protect maternal health rather than the lives of unborn children.
A significant yet little acknowledged fact about Roe is that Jane Roe (a name created to protect the identify of plaintiff Norma McCorvey in her suit against Texas’s abortion ban) became intensely pro-life later in life and now works full time as a pro-life activist. Though it wasn’t until the mid 1990s that McCorvey experienced a conversion on this issue, she has since said that her role in the landmark court case was the biggest mistake of her life. She also stated that she had been persuaded by her attorneys to make her case more convincing by lying and saying that she had been raped. What’s more, Sandra Cano, the plaintiff in Doe, said in a 2006 interview that she was used in that case without her knowledge and only later learned that her personal information had been wielded to score a judicial victory for the abortion-rights movement.
Bernard Nathanson later admitted that he and fellow abortion proponents cooperated to falsify statistics on the number of illegal abortions and maternal deaths in the decades preceding Roe.
Finally, very few Americans are aware that Blackmun fabricated the so-called “trimester framework” in an attempt to justify early abortion as less consequential than abortion later in pregnancy. Although today we speak of trimesters as if they’re settled medical facts, they were invented by Blackmun and not based on a medical understanding of pregnancy or fetal development.
In 1989, Washington Post journalist Bob Woodward reported on the release of the personal papers of Justice William O. Douglas, documents that provided new insight into the decision-making process in Roe. As he was crafting the opinion, Blackmun wrote internal memos to his fellow justices, saying that he had decided to create a cut-off for legalized abortion at the “first trimester,” which he defined as the first 13 weeks of pregnancy. “This is arbitrary,” Blackmun wrote. “But perhaps any other selected point, such as quickening or viability [of the fetus], is equally arbitrary.”
Some of the justices signing onto the majority opinion were not convinced by his rationalization, arguing that creating this framework amounted to legislative activity. Blackmun eventually persuaded them, however, and even expanded his initial framework by permitting abortion later in pregnancy, to preserve the mother’s health. Today, this contrived framework serves as the basis for many abortion-rights arguments, as it establishes the fetus’s “viability” as the grounds for its humanity or personhood, the logic that permits abortion early in pregnancy but might frown on late-term abortion.
While most Americans think abortion is immoral, most still believe that Roe and the “right to choose” were an important step forward for women’s rights in the U.S. In fact, Roe exemplifies the worst of legal procedure, both in the lies concocted on behalf of the U.S. abortion industry and in the contortions that Blackmun devised to justify the Court’s appallingly undemocratic decision, one that paved the way for the legalized murder of nearly 60 million unborn children.
— Alexandra DeSanctis is a William F. Buckley Fellow in Political Journalism at the National Review Institute.