Getting to Know Roe and Doe
Roe v. Wade is on the ballot this November. Unfortunately, almost nobody understands what Roe v. Wade did, nor what the Dobbs overruling did.
Very simply, Roe established a national, constitutional right to “abortion on demand.” It permitted no restrictions on the choice of a woman and her physician to terminate a pregnancy at any point before birth.
This was obscured by the “trimester” scheme of the 1973 decision. The Court held that the states could impose no restrictions in the first trimester, and only those that were for the sake of preserving maternal health in the second trimester. They could prohibit abortion in the third trimester (then regarded as the point of “viability”), but must still allow abortion for “maternal health.”
The meaning of “health” was fleshed out in Roe’s companion case, Doe v. Bolton. The Texas law in Roe allowed abortion only to save the life of the mother. The Georgia law in Doe was a more liberal and recently-enacted one, which allowed for “therapeutic” abortions, in cases of rape, incest, and threats to maternal life or health. But these required the approval of a multiple-member hospital committee. This reflected the traditional view that reasons must be given to justify the taking of a human life.
The Court held that “health” must include “psychological as well as physical well-being … medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient.” The Georgia procedural requirements were struck down as too burdensome. The decision was left to the woman and her physician, and “psychological” or “emotional” factors were so completely subjective as to allow abortion for any reason whatsoever. Justice Byron White recognized this in his dissent, that the decision permitted abortion for any reason “or no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request.”
The media tried to cover up the extent of the decision. The New York Times headline read “High Court Rules Abortion Legal in First Three Months.” Time magazine stood out as one of the few outlets to explain that the case meant abortion on demand. Indeed, the decision had been leaked to Time, leading Chief Justice Burger to write a last-minute concurrence stating that “the vast majority of physicians observe the standards of their profession …. Plainly, the court today rejects any claim that the Constitution requires abortion on demand.” It took many years, and further Court decisions, to make clear how limitless the abortion right was. This became apparent when the Court struck down third-trimester “partial-birth” abortion prohibitions because they did not contain “health” exceptions, though nearly all late-term abortions took the lives of healthy children of healthy mothers.
Deliberate or ignorant, distortions of Roe continue to this day. In 1973, most states had Texas-style maternal-life-only abortion laws. About a dozen had adopted Georgia-style therapeutic laws, adopting a model drafted by the American Law Institute. These laws did not make abortion much more accessible, for even by 1973 — and much more today — there are almost no non-psychological indications for abortion. Alan Guttmacher, a leading abortion advocate, admitted as much in 1954. Four states had enacted more permissive laws, the most open being New York in 1970. This allowed abortion for any reason up to 24 weeks gestation, and maternal-life only after that point. Roe struck down all of these laws.
Liberals in New York recognized this. Its 1970 law remained on the books for decades after Roe. (The legislature repealed the law in 1971, but it was saved by a veto courtesy of Governor Nelson Rockefeller.) What had been the most liberal abortion law in the world in 1970 was no longer liberal enough after two generations. Anticipating the Roe repeal, New York passed an abortion-on-demand statute even more permissive than Roe in 2019. To make the point that no moral reason need ever be given for abortion (as in the slogan “abortion on demand and without apology”), the legislature moved the regulations from the criminal code to the public health code.
Michigan voters are facing an abortion-on-demand amendment to the state constitution in November. The state adopted a Texas-style maternal-life-only statute in 1931. In 1972, just weeks before Roe, Michiganders voted down a New York-style law by a 60% to 40% margin. Now they are presented with a Roe version, stating:
“…the state may regulate the provision of abortion care after fetal viability, provided that in no circumstance shall the state prohibit an abortion that, in the professional judgment of an attending health care professional, is medically indicated to protect the life or physical or mental health of the pregnant individual.”
The proposal arguably permits outright infanticide, as it prohibits the prosecution of anyone for any conduct related to “alleged pregnancy outcomes.”
If the Michigan referendum passes, it will starkly demonstrate the real damage done by Roe — that for fifty years, the American people became inured to what had widely been held to be a morally wrong, if sometimes necessary, practice of induced abortion.
Paul Moreno, a professor of history at Hillsdale College, is the author of “How the Court Became Supreme: The Origins of American Juristocracy.”
