The Dismantling of Choice
Relentless legal challenges brought by antichoice forces have dangerously weakened reproductive rights.

By Janet Benshoof

On January 22, 1973, the United States Supreme Court struck down the criminal abortion laws of the State of Texas, finding that the right to decide whether to have a child is a fundamental right guaranteed by the US Constitution. This 7-2 decision, known as Roe v. Wade, had an immediate and profound effect on the lives of American women.

Before Roe, it is estimated that between 200,000 and 1.2 million illegally induced abortions occurred annually in the United States. As many as 5,000 to 10,000 women died each year after obtaining illegal abortions, and many others suffered severe physical and psychological injury.

To prevent women from dying or injuring themselves from unsafe, illegal, or self-induced abortions, women's advocates spearheaded campaigns to reverse century-old criminal abortion laws in the decades preceding Roe. During the 1960s and '70s, a movement of medical, public health, legal, religious, and women's organizations successfully urged one-third of state legislatures to liberalize their abortion statutes.

The Decision

The Supreme Court's decision in Roe was far from radical. It was the logical extension of previous Court decisions on the right to privacy dating back to the turn of the century. The decision is grounded in the same reasoning that guarantees our right to refuse medical treatment and the freedom to resist government search and seizure. In finding that the constitutional right to privacy encompasses a woman's right to choose whether or not to continue a pregnancy, the Court continued a long line of decisions recognizing a right of privacy that protects intimate and personal decisions, including those affecting child-rearing, marriage, procreation, and the use of contraception from government interference.

In its 1973 decision in Roe, the Supreme Court recognized that a woman's right to decide whether to continue her pregnancy was protected under the constitutional provisions of individual autonomy and privacy. For the first time, Roe placed women's reproductive choice alongside other fundamental rights, such as freedom of speech and freedom of religion, by conferring the highest degree of constitutional protection (called strict scrutiny) to reproductive choice.

Finding a need to balance a woman's right to privacy with the state's interest in protecting potential life, the Supreme Court established a trimester framework for evaluating restrictions on abortion. The Court required the state to justify any interference with the abortion decision by showing that it had a compelling interest in doing so. Restrictions on abortions performed before fetal viability (the period before a fetus can live outside a woman's body) were limited to those that narrowly and precisely promoted real maternal health concerns. After the point of viability, the state was free to ban abortion or take other steps to promote its interest in protecting fetal life. Even after that point, however, the state's interest in the viable fetus must yield to the woman's right to have an abortion to protect her health and life.

The Four Pillars of Roe

The Roe opinion was grounded on four constitutional pillars:

(1) The decision to have an abortion was accorded the highest level of constitutional protection like any other fundamental constitutional right.

(2) The government had to stay neutral; legislatures could not enact laws that pushed women to make one decision or another.

(3) In the period before the fetus is viable, the government could restrict abortion only to protect a woman's health.

(4) After viability, the government could prohibit abortion, but laws must make exceptions that permit abortion when necessary to protect a woman's health or life.

The Dismantling of Roe

Only the last two of the four Roe pillars mentioned above remain standing today, a result that is the culmination of a steady decline in constitutional protection for the right to privacy. Immediately following the Roe decision, those who did not want to see women participate equally in society were galvanized. The far right initiated a political onslaught that has resulted in numerous state and federal abortion restrictions and contributed to a changed Supreme Court, ideologically bent on eviscerating Roe. The right to choose became the target of not only the Religious Right, but also right-wing politicians and judges who used the Roe decision to attack the "judicial activism" of the Supreme Court and its purported failure to adhere to the text of the Constitution and the "original intent" of its framers. This backlash reached its peak during the three terms of Presidents Reagan and Bush. Beginning in 1983, the US solicitor general routinely urged the Supreme Court, on behalf of the federal government, to overturn Roe. In addition, when appointing Supreme Court justices, Reagan and Bush used opposition to Roe as a litmus test. During this twelve-year period, five justices (O'Connor, Scalia, Kennedy, Souter, and Thomas) were appointed. Not one of these five, who still constitute a majority on the Court today, supports the strict scrutiny standard of review established by Roe.

Shortly after the Roe decision, state legislatures began passing laws in hopes of creating exceptions to it or opening up areas of law that Roe did not directly address. No other right has been so stategically attacked and so successfully undermined. And all in the course of two decades, the same two decades that sustained advances in other areas of women's rights, including education and employment.

Teenagers were the first successful target. In 1979, the Court endorsed state laws that required parental consent for abortion, as long as those laws were accompanied by a complicated system whereby minors could assert their privacy rights by requesting a hearing before a state judge who would decide whether the teenagers were "mature" and whether or not an abortion was in their best interests (Bellotti v. Baird, 1979).

The next assault on Roe was directed at low-income women. The 1980 Hyde Amendment, which prohibited Medicaid from covering most abortions, was upheld by the Supreme Court by a 5-4 margin (Harris v. McRae, 1980). The Court abandoned the neutrality required in Roe, finding that, for poor women, government could promote childbearing over abortion, so long as it did so by manipulating women through public funding, not criminal laws.

Dissenting in City of Akron v. Akron Center for Reproductive Health (1983), Justice O'Connor called for a radical erosion of Roe and proposed that a lesser standard of constitutional protection for choice be established (called the undue burden standard) in place of the strict scrutiny test. By 1989, after the arrival of Justices Kennedy and Scalia and the elevation of William Rehnquist to Chief Justice, there were no longer five votes to preserve reproductive choice as a fundamental constitutional right. The Court's ruling in Webster v. Reproductive Health Services (1989) demonstrated this new reality when five justices expressed hostility toward Roe in differing degrees and essentially called for states to pass legislation banning abortion in order to test the law.

Three years later, in Planned Parenthood v.Casey (1992), the strict judicial scrutiny established in Roe was finally abandoned in a plurality opinion of Justices O'Connor, Kennedy, and Souter. Although the Court said it was not overturning Roe's central premise that abortion is a fundamental right, the Casey decision replaced the original strict scrutiny standard (that governs other fundamental rights) for the weak and confusing undue burden standard. Under Casey, state and local laws that favor fetal rights and burden a woman's choice to have an abortion are permitted, so long as the burden is not "undue." No longer does the state have to be neutral in the choice of abortion or childbearing. Now the government is free to pass laws restricting abortion based on "morality," a code word for religious antiabortion views. States are now permitted to disfavor abortion and punish women seeking abortions, even those who are young and sick, with harassing laws. This opened the door to a host of state and federal criminal restrictions designed to steer women away from abortion and to promote the rights of the fetus throughout pregnancy. Over 300 criminal abortion restrictions have been enacted by legislatures in the past six years alone, none of which would have been constitutional under the original Roe decision.

Roe in the Twenty-first Century

In 2000, eight years after the Casey decision, the Court agreed to hear another case that opened up Roe for reexamination. During that period, President Clinton had appointed two justices, Ginsburg and Breyer. The first challenge to Roe in the twenty-first century came in the form of a Nebraska ban on so-called "partial-birth abortion." The language of the Nebraska ban, and the cookie-cutter versions passed in 30 states, was sweeping and broad, and could have included virtually all abortion procedures, even those used in the early weeks of pregnancy. Publicly, supporters of these bans camouflaged this fact by using the term (made up by the National Right-to-Life Committee) "partial-birth abortion," and pretending that the bans were designed to prevent doctors from using one particular procedure. In a 5-4 vote in the case Stenberg v. Carhart (2000), the Court struck down the ban, finding it an unconstitutional violation of Roe and Casey by failing to include an exception to preserve the health of the woman and by imposing an undue burden on a woman's ability to choose an abortion.

In addition, the Court determined that the effect of the ban went well beyond prohibitions against so-called "late term" abortion, finding the ban to be so broad and vague that constitutionally protected abortion procedures performed before viability could be prohibited. The majority decision was joined by four justices, with four separate dissenting opinions filed by Chief Justice Rehnquist and Justices Scalia, Thomas, and Kennedy. (Kennedy had previously supported the right to choose abortion in the Casey decision.)

The 5-4 vote in Stenberg is an ominous sign for Roe's future. The Supreme Court is only one vote away from overturning Roe, which would be one of the most radical actions taken in the history of the Court. Without Roe, life for American women would be thrown more than thirty years in reverse, returning them to the days when women could not fully control the number and spacing of their children. Without the ability to make this key decision, women will be denied opportunities to fully realize their future and participate equally in society.

Note: This article was originally printed in the NCJW Journal: The Fight for Choice (Spring 2002).