The Week - UK (2022-05-28)

Briefing NEWS 13

28 May 2022 THE WEEK

How did Roe v. Wade come about?
In the early 1970s, abortion was legal
on demand in only four US states. Some
states allowed it only in the case of
danger to a woman’s health, or if she was
the victim of rape or incest. Texas, with
some of the strictest laws, didn’t even
allow that. In Dallas, two lawyers, Sarah
Weddington and Linda Coffee, wanted
to challenge the law via the federal
courts. They found a suitable case in
Norma McCorvey, a pregnant 21-year-
old identified only as “Jane Roe” in the
litigation (see box); Henry Wade was the
Dallas district attorney. Weddington, a
Methodist preacher’s daughter then aged
only 26, took the case to the supreme
court, and won. On 22 January 1973, the
court ruled, in a 7-2 decision, that the US
constitution protects a woman’s liberty to
choose to have an abortion without excessive government
restriction. It was a revolutionary ruling, taking what had been
a crime in most states, and turning it into a constitutional right.

How did the court reach that decision?
By slightly roundabout means. The majority opinion, written by
Justice Harry Blackmun, a Nixon appointee, held that a woman’s
right to an abortion was implicit in a right to privacy guaranteed
by the 14th amendment to the constitution. That is the “due
process clause”, which prohibits the arbitrary deprivation of “life,
liberty, or property”. The amendment says nothing about privacy,
let alone abortion. Rather, Blackmun argued that the right to
privacy is found in constitutional “penumbras”: literally, partial
shadows, meaning rights that can be inferred from other rights.
This reasoning has long been contested. In a dissenting judgment
at the time, Justice Byron White said the court had arbitrarily
fashioned “a new constitutional right for pregnant mothers”, and
in what he called “a exercise of raw judicial power” had decided
that this should override state legislators’ ability to balance the
interests of pregnant women and those of the foetus.

And what has happened now?
After 50 years in which Roe provided the basic framework for
abortion rights, the supreme court
seems set to overturn it by ruling on
an abortion case from Mississippi.
A draft judgment by Justice Samuel
Alito, leaked this month, argues that
Roe v. Wade “was egregiously wrong
from the start”, that “its reasoning
was exceptionally weak, and that
the decision has had damaging
consequences”. Far from settling the
matter, Roe and its companion cases
have “inflamed debate and deepened
division”. It’s inconceivable that
the 14th amendment could protect
abortion, Alito writes, because when
it was enacted, in 1868, three-quarters
of the states had made abortion a
crime. Elected politicians, not judges,
should decide the issue, he says.

Is Alito right?
It’s true that in most democracies,
abortion rights have been conferred
by parliament, rather than embedded
by the courts. And many – even

supporters of abortion rights – find Roe’s

arguments contorted. On the other hand,

the idea of penumbras is simpler than it

sounds: some rights imply the existence

of other rights. Constitutional principles

forbid the state from inter fering into

private matters; choosing whether to

have a baby is a deeply private matter.

And interpretations of the constitution

have changed greatly across history. In

1787, when it was composed, women

didn’t have the status of legal “persons”.

Schools were racially segregated when

the 14th amendment was passed, but

no one thinks that’s constitutional today.

And Alito’s legal logic could strike down

many constitutional rights established in

recent decades: to use contraception, or

to gay or interracial marriage.

What will happen if Roe goes?

The issue goes back to state legislatures (see page 15). Thanks to

so-called “trigger laws” put in place by anti-abortion activists, this

would lead to a near-total ban in much of the South and Midwest;

26 states are certain or likely to ban it, denying 36 million women

access. It will be mostly poor (and disproportionately African

American) women being forced to carry unwanted babies to term,

since the better-off would be able to travel. This is not, in many

senses, a democratic outcome, since according to Gallup, which

keeps the longest-running figures on the issue, about four in five

Americans believe abortion should be legal, at least in some

circumstances. Only 32% believe Roe should be overturned.

So why is it likely to happen?

In the short term, because Donald Trump appointed three judges

to the supreme court, giving it a conservative majority. In the

longer term, largely because of the influence of evangelical

Protestants on the Republican Party. Until the 1970s, the

evangelicals mostly kept out of politics and regarded abortion

as a “Catholic issue”. That changed in the 1970s and 1980s,

thanks to politically engaged anti-abortion preachers such as

Jerry Falwell and Francis Schaeffer. At the same time, Republican

strategists started mobilising evangelicals (around 25% of the US

population) as a crucial voting bloc.

In time, opposition to abortion

became a rallying cry for the religious

right, and the ultimate “culture war”

issue in America’s divisive politics.

Will the court go ahead?

Probably, though the final judgment

may take a different form. It’s unclear

whether the draft was leaked – the

first time this has happened – by a

horrified liberal or by a conservative

who hoped to make it harder for the

judges to change their minds. But

court-watchers assume that the

chief justice, John Roberts, a more

moderate conservative, would prefer

to protect the court’s standing as

an ostensibly non-political body by

issuing a less sweeping, less punchily

worded judgment. Whether or not

that’s possible is an open question.

Either way, constitutionally protected

abortion rights look very unlikely to

survive in their current form.

The end of Roe v. Wade?

The US supreme court looks set to overturn the landmark 1973 ruling on abortion

Norma McCorvey (right) at a pro-choice rally in 1989

The story of Jane Roe

Norma McCorvey, better known as “Jane Roe” (the

feminine equivalent of “John Doe”, a placeholder

name), was born in Louisiana in 1947 and had a chaotic

upbringing. She had already given up two babies for

adoption when she found herself pregnant for a third

time in 1969, aged 21. This was how she ended up as

the plaintiff in Roe v. Wade. The litigation took so long

that her pregnancy came to term: a third baby had

already been given up for adoption by the time the

case reached the supreme court.

McCorvey identified herself to the media soon after the

judgment, and sought to cash in on her fame. In 1995,

while living in a lesbian partnership, she converted to

evangelical Protestantism, with a televised baptism in

a backyard swimming pool in Dallas. Two days later,

she announced that she had given up her job in an

abortion clinic, and joined Operation Rescue, an anti-

abortion campaign. In 1998, she converted again, to

Catholicism. After 22 years as a celebrity anti-abortion

activist, she died of heart failure in 2017. Not long

before her death, she told a documentary film crew

that she’d become an activist for the money, adding:

“If a young woman wants to have an abortion, that’s

no skin off my ass. That’s why they call it choice.”