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Abortion and Roe v. Wade: How did we get here from there?

| Jul 23, 2013 | Uncategorized |

Abortion and Roe v. Wade: How did we get here from there?

Jack Edward Urquhart July 23, 2013

January 22, 1973, I was in my final  semester of law school.  I was excited. So many very important things–it seemed–were going on. Yet, the most enduring event of that day was not really on my personal radar. The United States Supreme Court decision in Roe v. Wade was announced.

I immediately “knew” of the decision, but a couple of years passed before I actually read the opinions. I sense that many–including those extremely opinionated about abortion and the law–have never read it. No criticism is intended, because I felt quite the authority Roe before ever reading it.

But as the years and decades have passed and the storm surge of opinion on abortion seems forever stronger, I frequently go back to the Roe opinions. With each reading, I see the same words, but usually get a different message. Despite my constantly shifting understanding of the opinions, Roe helps anchor me as a professional.

Roe is curiously powerful, almost majestic. Why? Nine justices took on a timeless social issue, and decided it with graceful respect for each other and those they knew would forever attack the decision and them.

As the 2013 Texas legislature began to stir the abortion pot again, I went back to Roe. It should be required reading for all who venture down the treacherous road of regulating abortion. Roe provides a workable framework for discussions of well-intended abortion regulation. At the same time, Roe exposes the witlessness and waste that is now the hallmark of virtually all abortion discussions.

Roe makes clear that a woman has a constitutional right an abortion, but that right is not absolute.

A state may limit the abortion right, but only if it can meet the virtually insurmountable burden of proving that a narrow limitation is supported by a compelling state interest.

For example, pontificating that “Texas is a place where we defend life” does not demonstrate a compelling state interest that would support any proposed limitation on the constitutional right to an abortion.

The following 40 year old words from the Roe majority opinion set the stage for the constitutional evaluation of any proposed limitation on the legal right to an abortion:

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life, family and values, and the moral standards one establishes and seeks to observe are all likely to influence and to color one’s thinking about abortion.

In addition, population growth, pollution, poverty and racial overtones tend to complicate and not simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and predilection. 

These words hold wonder for me.  I wonder how our halls of power have lost the gift to acknowledge, face and resolve difficult decisions without mean-spirited rancor. Roe was a legal decision. It neither started nor ended the challenging social issues of abortion. However, it should have ended any governmental intrusion on the constitutional right to abortion, barring rare and extraordinary circumstances.