A look back to 1985–George Scialabba: The Trouble with Roe v. Wade

From left to right, not many people have had a kind word for Roe v. Wade, the 1973 Supreme Court decision that partially legalized abortion. Radical feminist Catharine MacKinnon called it “a study in male ideology” that “reaffirms what the feminist critique of sexuality criticizes: the public/private split.” Michael Kinsley, editor of “The New Republic”, called it “one of the worst things that ever happened to American liberalism” and warned that “there is a time bomb ticking away” inside it. Conservatives have, of course, registered disapproval often and loudly (sometimes explosively).

Roe v. Wade struck down a Texas law that made abortion a crime except when “procured or attempted by medical advice for the purpose of saving the life of the mother.” The court’s logic was not transparent (Kinsley calls it “a mess,” and many agree), but was essentially this: (1) A woman’s right to make reproductive decisions is part of a “right of privacy” implicit in the 14th Amendment to the constitution, which says that government may not “deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (2) A fetus does not have a “right to life” or to “equal protection” because, according to the court, “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” (3) Constitutionally guaranteed rights may only be infringed when a “compelling” societal interest is at stake. In the case of abortion, society has two legitimate interests: to protect the health of pregnant women and to protect “potential life.” But these interests are not “compelling” from the moment of conception. The former becomes compelling only when the medical risks of abortion become comparable to those of normal childbirth, i.e. (as of 1983) during the second trimester. The latter becomes compelling only when the fetus becomes “viable,” or “capable of meaningful life outside the mother’s womb,” i.e. (as of 1973) during the third trimester. (4) What follows from all this, the court said, is that the state may regulate abortion during the second trimester, but only “in ways that are reasonably related to maternal health,” and may prohibit abortion during the third trimester “except where it is necessary . . . for the preservation of the life or health of the mother.”

Roe raised a host of questions, of two kinds. First: is the court’s reasoning persuasive? Does the constitution really recognize a “right of privacy,” even though it’s not mentioned anywhere in the text? Why doesn’t the 14th Amendment apply to fetuses, even though they are not mentioned anywhere in the text? What is “potential” life? Why does the state have a “compelling interest” in protecting it, even at the expense of actual persons? And why does that interest become compelling at viability rather than at conception or birth?

Read it all.