Roe v. Wade: We Need a Further Legal Move, if Only on Paper

There are some things that are only good on paper. Disastrous recipes. Bad dates with good resumes. Certain haircuts and, generally, photoshop. One thing not so good only on paper is Roe v. Wade.

In 1973, the United States Supreme Court declared that privacy as defined under the due process clause of 14th Amendment of the US Constitution extended to a woman’s right over her own body and her decision whether or not to have an abortion. Basically, it disallowed many State and Federal actions against abortion, and tied the procedure to viability.

40 years on, despite being a constitutionally protected right, a woman’s choice is still vehemently attacked by State law and physical violence that roams the scale from intimidation to murder. From South Dakota where a federal appeals court upheld a law requiring doctors to tell patients that abortion causes a rise in suicide attempts (which John Hopkins has stated is absolutely bogus), to North Dakota where medication-induced abortions have been banned despite medical testimony to their safety (and apparent moral superiority to, you know, the other kind of abortion), to Kansas where Dr. Tiller was shot and the doctors who attempted to take over his practice where physically harassed into quitting, to Mississippi where the last abortion clinic is closing because hospitals won’t grant obligatory admitting privileges to its doctors, to Virginia where abortion clinics now have to abide by architectural zoning laws for their patient’s safety (though no previous reports suggested the clinics were unsafe), and I could go on and on… abortion providers have been physically and legally harassed into oblivion.

Too often, however, we forget the faces of the people most affected by the lack of abortion and sexual health care. Surprise! Quite the opposite to those men restricting health care provisions, they are all women. Women of all ethnic backgrounds. Six in ten who’ve already had a child. 40% of whom come from households making less than $18500 a year. 7 in 10 of whom report being religious.

No, women do not use abortion as a method of contraception. No, they are not spoiled brats or whores as the Republican party has been so vocal in labeling them. No, they are not on the fringes of our society. In fact, if these trends continue, it’s presumed that 35% of women of reproductive age will have had an abortion by the time they are 35.

Although really just another medical procedure, abortion has divided the country along moral lines, and reasons for abortions are given particular weight within political discussion. These range from financial difficulties to an inability to provide care to none of your damn business. Reasons, in this case, don’t matter. Abortion is a constitutionally protected right to privacy. As soon as reasons begin to matter, they take precedence over a woman’s right to choose. And Roe v Wade took care of that.



Statistically, the country has been pretty much divided along the same lines that it was in the 1970’s – Gallup states that 52% of Americans think it should be legal under some cases, 25% want it legal all the time and 20% want it outlawed all the time.

All that seemed to take a significant turn, however, in the recent 2012 elections. Spurred by a rise in state sponsored laws, 130 bills aimed to reduce access to abortion since 2010, women at the polls significantly voted for politicians who were not engaged in the very real war on women. Republicans in Missouri (Hello, Todd Akin) and Indiana, largely expected to win, lost their seats to Democrats after making horrid comments about rape and women’s bodies. Personhood amendments all over the country were scaled back as grass-roots movements rose to object to their ridiculous terms (a few cells endowed with the rights of a human being from the moment of conception? Whom are we kidding here?). Planned Parenthood, attacked on all sides by Republicans who insisted it not be federally funded (despite that funding going to everything from mammograms to pap smears to cervical cancer treatment and only 3% going to abortive measures) still managed to come out resilient and emboldened. The Komen debacle was a good example – when the Susan G. Komen For the Cure foundation pulled funding for Planned Parenthood under political pressure, the backlash was so harsh they reversed their decision in 72 hours.

But 2012 remained scary for the reasons so well reported almost daily throughout our media: the attacks on a woman’s access to sexual healthcare and abortion were very real – and showed no signs of abating if we didn’t do something about it.

So what do I think of the fact that 40 years on a woman still has to battle the world for the right to choose over her own body?

A few things.

First, as if we didn’t quite get the Roe v Wade message, the Supreme Court also ruled, in 1992, that States could not place undue burden on women who seek to obtain abortions. It did, however, allow States to begin applying different regulations (24 hour waiting period allowed, parental consent allowed) making abortion more of an illegal right than a constitutionally protected one. To me, this is a joke. As the plurality opinion (re)stated in Planned Parenthood v Casey:

“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Either there is right, or there isn’t. A woman’s body is not a territory to be divided along state lines or by moral fervor, often at the behest of old white men. Just as soon as reasons start mattering, as soon as a woman’s right to choose is placed under scrutiny, she becomes a second-class citizen. A bread oven, if you will. And then the Handmaid’s Tale is just around the corner.

I also find it strange that the very same people who want to prevent all abortions also want to prevent access to contraception (37 states mandate abstinence education.  It’s not working). You’d think it would be the opposite. Because it isn’t (note the outcry at contraception and Obamacare – which was a ridiculous lie anyway), this would seem to reinforce the moral/religious reasons behind preventing women from accessing their rights: women should not be engaging in sex to begin with. Sex is for procreation first and foremost. If you do get pregnant, too bad. This is the punishment for your whorish actions. Which, again, is strange. If pro-lifers cared at all about children – why would they want these fetus-infants to be born to parents that didn’t want them, couldn’t afford them and can’t take care of them properly?

Why does all their caring end in the delivery room?

40 years on, I guess you could say that ‘on paper’ isn’t working so well for Roe v Wade. Luckily women are tired of having Congress sit in their uterus so much, and they have taken to the polls to demand change and representation. The US currently has the largest number of women Senators (20) at any times of it’s history. They’ve elected Barack Obama to a second term (I only say this because the alternative, Mitt Romney, had spoken about changing the composition of the Justices of the Supreme Court, making Roe v Wade vulnerable to being overturned). Grass-roots movements are mobilized. Young feminists care about their bodies. They care about their reproductive health and rights. A woman’s right to contraceptive services and sexual health that includes abortion is her ticket to engaging in a society’s economy. That was the huge success of The Pill. That is the continued success of the reproductive healthcare system today. In this economy it is more important than ever. In this economy, more than at any other time, the choice to have a child is one to be taken with extreme measures of caution and care.

So on this anniversary, it would be very nice to see a further legal move, if only on paper. Make a woman’s right to choose constitutionally protected by disallowing any State action against it. Prosecute those who would intimidate and physically harass abortion providers and care workers to the fullest extent of the law.  Mandate access to sexual health care for women and men across state lines and protect those offices and clinics from harassment and ridiculous zoning regulations. Given that access is today’s biggest problem for abortion, mandate increased access in the most vulnerable and hard to reach zones. And someone should ask that the Supreme Court stop being so wishy-washy every time it is presented with a case that challenges Roe v Wade.

It is important to remember one key thing: all the Supreme Court did in 1973 was recognize a right that already existed. It gave legality to a right and enshrined it under the Constitution. But this right should not be honored because of the benefits it brings. It should, instead, be protected on the basis of its principle of human rights, dignity, privacy and equality. The added benefits of giving access to the economy, to opportunities and to family planning are all fantastic wins, but they are all secondary. Roe v Wade must be protected because it is an innate right and not simply one that has been recognized.

And in 1973, the Supreme Court recognized this and gave women the rights of a first class citizen.

Hopefully the United States will not want to move backwards on that. 

So Happy Anniversary Roe v Wade. May you live long and strong.

And maybe even stronger.



Photo credit: Phil Roeder via photopin cc.

Facebook Twitter Email

Tags: , , , ,