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Roe vs. Wade: 25 years later
A decision greatly undermined

by Charles R. Kesler; Kesler is a senior fellow of the Claremont Institute.
The San Diego Union-Tribune, January 22, 1998

Today marks the 25th anniversary of Roe vs. Wade, the landmark Supreme Court decision that legalized abortion as a constitutional expression of "the personal right of privacy." This furiously controversial case imposed a permissive form of abortion-on-demand on all 50 states, plunging America into a bitter culture war that rages still.

Somewhat lost amid these political preparations, however, is the remarkable story of the decline of Roe vs. Wade as a legal doctrine. After a quarter-century's interpretation by the Supreme Court -- a court that has always had a majority, big or small, in favor of abortion rights -- Roe is a shadow of its former self.

Although its central holding has not been overruled, almost everything else about it has. And its central holding looks more and more precarious, even to its supporters on the court.

Roe established that a woman had a fundamental right to an abortion, and thus that state regulations of abortion had to be subjected to what the lawyers call "strict scrutiny" and could be justified only by "compelling state interests."

Furthermore, the court in Roe invented a trimester format to govern abortion: in the first three months of pregnancy, the abortion decision was solely between a woman and her doctor; in the second trimester, the state could regulate abortion in the interest of the mother's health; and in the final trimester, after the point of fetal "viability," the state could regulate in the interest of the unborn child's "potentiality of human life."

Step by step, each of these holdings has been abandoned, if not quite repudiated, by the court. After rigorously upholding Roe in 1976 and 1983, the court eased away from it in 1989 (Webster vs. Reproductive Health Services) and departed sharply from it in a major 1992 case (Planned Parenthood of Southern Pennsylvania vs. Casey).

In the latter case, the court decided (in an unusual plurality opinion) to chuck the trimester framework altogether. Justice Sandra Day O'Connor had put her finger on that formula's central weakness in her 1983 dissenting opinion: "The Roe framework," she wrote in 1983, " . . . is clearly on a collision course with itself . . . As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception."

And so the framework was abandoned -- not by the opponents of Roe, who wrote a separate (partly concurring, partly dissenting) opinion calling for overruling the decision outright, but by the friends of Roe. (The exception was Justice Blackmun, the author of the original Roe decision.)

Yet the problems with Roe went deeper. The decision had attempted to balance the fetus' right to life against the woman's right to privacy, but it was never quite clear why privacy, even in the first trimester, should trump life. Perhaps it was because the fetus was not yet a living human being, but the court was agnostic on that question.

Not wanting to have to decide when human life began, the court in Roe had let the legal question turn on when fetal life could be sustained outside the womb. But this was obviously a kind of evasion -- not only of the question of human life's origins, but of its purposes.

At any rate, even in Roe one got the sense that although abortion may be a constitutional exercise of liberty, it was not exactly a good thing.

By 1992, the court had elaborated those doubts into the rejection of Roe's "strict scrutiny" standard -- again a decision articulated by judges (Souter, Kennedy, O'Connor) basically in sympathy with Roe's holding.

After the Casey decision, no longer would abortion regulations have to pass not "strict scrutiny" but the easier muster of what the plurality called the "undue burden" test. Under this new standard, the court approved Pennsylvania's 24-hour waiting period for an abortion, its informed consent standard (emphasizing the available options besides abortion), and even its requirement for parental consent before a minor could obtain an abortion (with a judicial bypass provision).

What then remains of Roe vs. Wade? Its central holding endures: Before viability, a fetus may be legally aborted in America. Still, there are clear signs that even among its judicial supporters, Roe has lost much of its legitimacy.

In Casey, the plurality opinion defended Roe not because it is right but because it is there and cannot be conveniently removed. If the court were to overturn Roe just because newly appointed judges thought it had been wrongly or sloppily decided, the plurality argued, then the public would think that the court had yielded to political pressure and that the rule of law was a fiction. We must therefore uphold precedent even if it is unconstitutional, the court seemed to say.

The court actually did say, with studied ambiguity: "We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate." Even if they wanted to . . .

Such a strange, pusillanimous argument, which would have served equally well to protect the infamous 19th century cases upholding slavery and segregation, Dred Scott and Plessy vs. Ferguson, will probably not last into the new century. It certainly doesn't deserve to, as both Roe's friends and opponents realize.

Copyright 1998 The San Diego Union-Tribune