Will Roe Survive Us?

Katie Short

Looking out on this crowd, I would estimate that about three out of four of you here were not born when Roe v. Wade was decided 40 years ago. And that’s a good thing. Actuarially speaking, we are so much better off than the other side.

So what was Roe v. Wade? For openers, it was a remarkably illogical, result-oriented Supreme Court decision. Pro-abortion constitutional experts have admitted that from the beginning.

In 1973, Laurence Tribe of Harvard Law School said: “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

Also in 1973, John Hart Ely, who taught constitutional law at Yale, Harvard, and Stanford Law Schools, wrote that Roe “is not constitutional law and gives almost no sense of an obligation to try to be. . . . What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.”

Edward Lazarus, a law clerk to Supreme Court Justice Harry Blackmun, the justice who authored the Roe v. Wade decision, stated: “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. . . . What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent—at least, it does not if those sources are fairly described and reasonably faithfully followed.”

Jeffrey Rosen, Legal Affairs editor of “The New Republic” magazine, wrote, “Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself.

Kermit Roosevelt of University of Pennsylvania Law School, wrote, “[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result. . . . This is not surprising. As constitutional argument, Roe is barely coherent.”

William Saletan, a columnist for Slate magazine who left the GOP in 2004 because it was too pro-life, said, “Blackmun’s [Supreme Court] papers vindicate every indictment of Roe : invention, overreach, arbitrariness, textual indifference.”

But what did Roe v. Wade actually say? Most people know it said something about abortion being a constitutional right, and something about a woman’s right to privacy. That’s partly correct. The decision did say that the judge-created constitutional right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” But only in that one instance does the Court speak of the woman alone in her decisionmaking.

Justice Blackmun, author of the Roe v. Wade decision, repeatedly stressed the centrality of the physician, not in the technical performance of an abortion procedure, but in the pregnant woman’s decision-making process. The decision listed factors that “the woman and her responsible physician necessarily will consider in consultation.” It stated that “for the period of pregnancy prior to this ‘compelling’ point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.” It continued: “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.”

Finally, Blackmun summarized the decision as “vindicat[ing] the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.”

You can see now the irony in several of our state legislators choosing this 40th anniversary of the Roe v. Wade decision as the day to announce the introduction of AB 154, a California bill that would allow non-physicians to perform surgical abortions. The proponents of the bill assert that studies show that non-physicians are as competent to perform abortions as physicians. But Roe v. Wade didn’t purport to be about technical competence. It was supposed to be about a medical decision that a woman would make in consultation with her doctor.

Forty years after Roe, the mask can be discarded. Abortion is not and never has been a medical decision. It’s not about “women’s lives.” It’s a social decision, a decision made by women to deal with situations in their life that almost never have anything to do with their life or their health.

We have seen more recently that the pro-aborts learned well this lesson from Roe v. Wade: when you want to change public policy, play the health card first. And that’s why we now have the HHS contraceptive mandate.

The contraceptive mandate sprang from an amendment buried in the gargantuan law known as Obamacare. This amendment, the Women’s Health Amendment, was, as you can see from the title, supposed to be about women’s health, and specifically about preventive health care for women—you know, things like mammograms and pap smears. That’s what the proponents kept repeating: mammograms and pap smears, mammograms and pap smears. Who could possibly be could be against women getting mammograms and pap smears?

However, the final regulation implementing the Women’s Health Amendment doesn’t have anything about mammograms and pap smears, because—surprise—those services are already covered under other provisions of Obamacare. What is in that regulation, as you all know, is coverage of all FDA-approved contraceptives and abortifacients with no co-pay.

Because contraceptives come with the trappings of prescriptions and pharmacies and doctors and white coats, the pro-aborts were able to pass them off as preventive health care, just as Justice Blackmun was able to pass off abortion as a medical decision.

The problem is: contraceptives are not good for women’s health. In fact, they are terrible for women’s health. This is hardly surprising. It stands to reason that drugs specifically designed to disrupt the normal functioning of healthy women’s bodies would not be good for them. And indeed, among other problems, hormonal contraceptives increase the risk of various cancers, tumors, heart disease, and strokes.

Contraceptives are not medicine, and fertility is not a disease, but feminists, having honed their skills with abortion and Roe v. Wade, understood that this was the way to get their anti-natalist, anti-child philosophy enshrined in public policy: make it about women’s health and the sacred physician-patient relationship.

It’s almost comical listening to the feminist line. One minute it’s “I am woman; hear me roar;” the next it’s “Is there a doctor in the house?”

But the results are far from comical. The results are deadly.

Reflecting on this 40th anniversary, I recalled a passage from Lincoln’s Second Inaugural Address, a speech he delivered as the Civil War was drawing to a close, and slavery was coming to an end:

“Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said ‘the judgments of the Lord are true and righteous altogether.’”

Reading that, I shudder at the price, were our nation called on in justice to pay for every drop of blood drawn with the abortionist’s knife.

While we fervently pray for God’s mercy, not His justice, on our nation for its past sins, we also fervently pray that this slaughter of the innocents will end soon.

Forty years. That’s a long, long time. Gatherings like this should not be a family tradition, much less one handed down through the generations. I want my children to be able to say, “I survived Roe v. Wade, but Roe v. Wade did not survive me.”

Here, on the 40th anniversary of the horrific Roe v. Wade decision, I propose that we include in our prayers for the end of abortion one that conveys that sense of urgency we should feel. This is a prayer of the Church, said at the beginning of the Evening Prayer in the Divine Office, but it could be said any time of day or night for the special intention of ending abortion:

O God, come to our assistance; Lord, make haste to help us.


[This article is adapted from Katie Short’s address to the Prayer Walk for Life in Ventura, California, commemorating the 40th anniversary of the Roe v. Wade decision.]

Author: Life Legal

The Life Legal Defense Foundation is a non-profit law firm that specializes in the defense of vulnerable human life, especially life in the womb.