30 years after ruling, ambiguity, anxiety surround abortion debate
By William Mears
WASHINGTON (CNN) -- Thirty years since Roe v. Wade, and little, it seems, has changed.
The January 22, 1973, Supreme Court decision legalizing abortion remains the law of the land, and passions remain high on both sides of the issue, with annual protests on the anniversary.
Access to abortion in the United States, however, is about more than legalities. Social, religious and family values, as well as money and politics still play a role in shaping the debate over abortion, but much of that debate has become predictable.
"Much of the controversy about abortion is really stimulated by the interest groups on both sides of the political question, rather than by ordinary Americans," says David Garrow, a law professor at Emory University in Atlanta, and a longtime Supreme Court scholar. "The American people and many political leaders have already made up their minds about legal abortion."
Public opinion on abortion has remained stable over the years. A new CNN/USA Today/Gallup survey found 38 percent of Americans believe abortion should be legal in most or all circumstances, 42 percent believe it should be available in a few circumstances, such as to save the mother's life and 18 percent say abortion should never be legal. That is almost unchanged in the past 15 years.
The Roe decision did not prompt "abortion on demand" as many opponents of the procedure predicted it would. Nor have various legislatures or court rulings restricted access as much as some supporters claim. New research from the Alan Guttmacher Institute found the rate of abortions is at its lowest level since Roe, about 1.31 million in the year 2000, down 4 percent from 1996.
Those who celebrate it and those who revile it will mark Roe's longevity this week. And while there is no current Supreme Court case that could overturn the ruling, both sides say that day may be close: With Republicans in control of both houses of Congress, they say, the chances for legislation limiting or banning abortion have increased. (Full story)
Another legacy of Roe that remains: the head counting of justices on the Court, a what-if scenario that could lead to the overturning of Roe. The current 5-4 conservative majority could shift in either direction, if two or more justices leave the bench in the next few years, as is widely expected.
For abortion rights supporters, the departure of Justice Sandra Day O'Connor would be most troublesome. For anti-abortion forces, the wild card could be the exit of Chief Justice William H. Rehnquist.
Roe culminated nearly two centuries of legal activity on abortion that began in 1821 when Connecticut became the first state to outlaw abortions. The 1973 ruling, a 7-2 decision by the high court, gave women a qualified constitutional right to an abortion during most of the pregnancy.
The Court actually heard two cases at around the same time: Roe (aka Norma McCorvey who has since become an anti-abortion supporter) v. Wade, which challenged a Texas law banning abortions except to save the mother's life; and Doe v. Bolton, a Georgia case involving a state law requiring abortions be performed only in accredited hospitals, and only after a review by a hospital staff committee and an exam by two doctors other than her own physician.
In all, the Roe and Doe rulings impacted laws in 46 states.
Questions, anger persist from ruling
For the justices, Roe reflected earlier cases involving the right to privacy. That "right," wrote Justice Harry Blackmun in the main opinion for the Court is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
"Prior to Roe," says Garrow, "whether one could obtain a legal abortion in the face of an unwanted pregnancy was a crap shoot. For 30 years now, it's been a constitutionally guaranteed right."
But the ruling was a qualified one, as many anti-abortion supporters have noted over the years, and used by them in their efforts to narrow the scope of other abortion provisions. Blackmun noted the state's "important interests in safeguarding health, maintaining medical standards, and protecting potential life" are compelling enough to justify regulation "at some point in pregnancy."
That "qualified right" found its form in the controversial 'trimester analysis" laid out by the justices in Roe: no government regulation during the first three months; limited regulation in the second trimester to protect women's health and safety; and giving government the power to ban abortions during the third trimester-- where medical consensus has concluded the fetus is capable of living on its own.
That reasoning has outraged abortion opponents, and even puzzled many legal scholars.
"The better argument for the result reached in Roe v. Wade is that it's necessary for the equality of women, rather than grounding it in the privacy right," says Edward Lazarus, a former law clerk for Blackmun and the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."
Courts revisit abortion
The abortion issue has been revisited several times since Roe, most famously in two cases: Webster v. Reproductive Health Services (1989) and Planned Parenthood v. Casey (1992).
Webster (5-4 decision) upheld major parts of a Missouri abortion law that prohibited use of public facilities or public employees from performing abortions; and required doctors to test the viability of fetus before an performing any abortion.
Justices Rehnquist, White, and Kennedy said they would allow restrictions on abortion, but only if the restrictions had a rational basis. More importantly, the three conservative justices said a compelling government interest would not be enough to justify restrictions on abortion.
Then came Planned Parenthood v. Casey (1992) in which the justices clearly outlined their views on Roe. The decision (also 5-4) reaffirmed the heart of Roe while giving states the power to regulate procedures as long as they did not impose an "undue burden" on a women's right to abortion.
The standard in the Casey ruling: undue burden exists if "the purpose and effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability." The ruling left supporters on both sides of the issue dissatisfied, feeling it was ambiguous.