Roe v. Wade - Then and Now

  By Janet Benshoof

  On January 22, 1973, the United States Supreme Court struck down the State of Texas's criminal abortion laws, finding that the right to decide whether to have a child is a fundamental right guaranteed by the U.S. Constitution. The 7-2 decision in Roe v. Wade would have an immediate and profound effect on the lives of American women. Before Roe, it is estimated that "between 200,000 and 1.2 million illegally induced abortions occur[red] annually in the United States."1 As many as 5,000 to 10,000 women died per year following illegal abortions and many others suffered severe physical and psychological injury.2

  To prevent women from dying or injuring themselves from unsafe, illegal or self-induced abortions, women's advocates spearheaded campaigns to reverse century-old criminal abortion laws in the decades preceding Roe. During the 1960s and 1970s, a movement of medical, public health, legal, religious and women's organizations successfully urged one-third of state legislatures to liberalize their abortion statutes.

  Roe v. Wade is a landmark decision that recognized that the right to make childbearing choices is central to women's lives and their ability to participate fully and equally in society. Yet, the Supreme Court's decision in Roe was far from radical —— it was the logical extension of High Court decisions on the right to privacy dating back to the turn of the century. The decision is grounded in the same reasoning that guarantees our right to refuse medical treatment and the freedom to resist government search and seizure. In finding that the constitutional right to privacy encompasses a woman's right to choose whether or not to continue a pregnancy, the High Court continued a long line of decisions recognizing a right of privacy that protects intimate and personal decisions —— including those affecting child-rearing, marriage, procreation and the use of contraception —— from governmental interference.

  The Decision

  In its 1973 decision in Roe, the Supreme Court recognized that a woman's right to decide whether to continue her pregnancy was protected under the constitutional provisions of individual autonomy and privacy. For the first time, Roe placed women's reproductive choice alongside other fundamental rights, such as freedom of speech and freedom of religion, by conferring the highest degree of constitutional protection —— "strict scrutiny"—— to choice.

  Finding a need to balance a woman's right to privacy with the state's interest in protecting potential life, the Supreme Court established a trimester framework for evaluating restrictions on abortion. The Court required the state to justify any interference with the abortion decision by showing that it had a "compelling interest" in doing so. Restrictions on abortions performed before fetal viability, that is the period before a fetus can live outside a woman's body, were limited to those that narrowly and precisely promoted real maternal health concerns. After the point of viability, the state was free to ban abortion or take other steps to promote its interest in protecting fetal life. Even after that point, however, the state's interest in the viable fetus must yield to the woman's right to have an abortion to protect her health and life.

  Immediately following the Roe decision, those who did not want to see women participate equally in society were galvanized. The far right initiated a political onslaught that has resulted in numerous state and federal abortion restrictions and contributed to a changed Supreme Court, ideologically bent on eviscerating Roe. The right to choose became the target of not only the religious right, but also right-wing politicians and judges who used the Roe decision to attack the "judicial activism" of the Supreme Court and its purported failure to adhere to the text of the Constitution and the "original intent" of its framers. This backlash reached its peak during the three terms of Presidents Reagan and Bush. Beginning in 1983, the U.S. solicitor general routinely urged the Supreme Court, on behalf of the federal government, to overturn Roe. In addition, when appointing Supreme Court justices, Reagan and Bush used opposition to Roe as a litmus test. During this twelve-year period, five justices - O'Connor, Scalia, Kennedy, Souter, and Thomas - were appointed. Not one of these five, who still constitute a majority on the Court today, supports the "strict scrutiny" standard of review established by Roe.

  The Dismantling of Roe

  Shortly after the Roe decision, state legislatures began passing laws in hopes of creating exceptions to it or opening up areas of law that Roe did not directly address. No other right has been frontally attacked and so successfully undermined, and all in the course of two decades —— the same two decades that sustained advances in other areas of women's rights, including education and employment.

  Teenagers were the first successful target. In 1979 the Court endorsed state laws that required parental consent, as long as they were accompanied by a complicated system whereby minors could assert their privacy rights by requesting a hearing before a state judge on whether they were "mature" or an abortion was in their best interests (Bellotti v. Baird)。

  The next assault on Roe was directed at low-income women. In 1980 the Hyde Amendment, which prohibited Medicaid from covering most abortions, was upheld by the Supreme Court by a 5-4 margin (Harris v. McRae)。 The Court abandoned the neutrality required in Roe, finding that, for poor women, government could promote childbearing over abortion, so long as it did so by manipulating women through public funding schemes, not criminal laws.

  Dissenting in City of Akron v. Akron Center for Reproductive Health (1983), Justice O'Connor called for a radical erosion of Roe and proposed that a lesser standard of constitutional protection for choice be established, called the "undue burden" standard, in place of the "strict scrutiny" test. By 1989, after the arrival of Justices Kennedy and Scalia and the elevation of William Rehnquist to chief justice, there were no longer five votes to preserve reproductive choice as a fundamental constitutional right. The Court's ruling in Webster v. Reproductive Health Services (1989) demonstrated this new reality when five justices expressed hostility toward Roe in differing degrees and essentially called for states to pass legislation banning abortion in order to test the law.

  Three years later, in Casey, the strict judicial scrutiny established in Roe was finally abandoned in a plurality opinion of Justices O'Connor, Kennedy and Souter. Although the Court said it was not overturning Roe's central premise that abortion is a fundamental right, the Casey decision replaced the original "strict scrutiny" standard governing other fundamental rights for the weak and confusing undue burden standard. This opened the door to a host of state and federal criminal restrictions designed to steer women away from abortion and to promote the rights of the fetus throughout pregnancy. Over 300 criminal abortion restrictions have been enacted by legislatures in the past six years alone, none of which would have been constitutional under the original Roe decision.

  The Four Pillars of Roe

  The Roe opinion was grounded on four constitutional pillars: (1) the decision to have an abortion was accorded the highest level of constitutional protection like any other fundamental constitutional right; (2) the government had to stay neutral; legislatures could not enact laws that pushed women to make one decision or another; (3) in the period before the fetus is viable, the government may restrict abortion only to protect a woman's health; (4) after viability, the government may prohibit abortion, but laws must make exceptions that permit abortion when necessary to protect a woman's health or life.

  Only two of the four Roe pillars remain today as a result of the Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. This decision is the culmination of a steady decline in constitutional protection for the right to privacy. A woman's right to choose is still constitutionally protected, however, the "strict scrutiny" standard was jettisoned in favor of a lesser standard of protection for reproductive choice called "undue burden." Under Casey, state and local laws that favor fetal rights and burden a woman's choice to have abortion are permitted, so long as the burden is not "undue." No longer does the state have to be neutral in the choice of abortion or childbearing. Now the government is free to pass laws restricting abortion based on "morality," a code word for religious anti-abortion views. States are now permitted to disfavor abortion and punish women seeking abortions, even those who are young and sick, with harassing laws.

  Roe in the 21st Century

  In 2000, eight years after the Casey decision, the Court agreed to hear another case that opened up Roe for reexamination. During that period, President Clinton had appointed two justices, Ginsburg and Breyer. The first challenge to Roe in the 21st century came in the form of a Nebraska ban on so-called "partial-birth abortion" brought by the Center for Reproductive Law and Policy. The language of the Nebraska ban —— and the cookie-cutter versions passed in 30 states —— was sweeping and broad, and could have included virtually all abortion procedures, even those used in the early weeks of pregnancy. Publicly, however, supporters of these bans camouflaged this fact by using a term made up by the National Right-to-Life Committee ——"partial-birth abortion"—— and pretending that the bans were designed to prevent doctors from using one particular procedure.

  In a 5-4 vote in the case Stenberg v. Carhart (2000), the Court struck down the ban, finding it an unconstitutional violation of Roe and Casey by failing to include an exception to preserve the health of the woman and by imposing an undue burden on a woman's ability to choose an abortion.

  In addition, the Court determined that the effect of the ban went well beyond prohibitions against so-called "late term" abortion, finding the ban to be so broad and vague that constitutionally protected abortion procedures performed before viability could be prohibited. The majority decision was joined by four justices, with four separate dissenting opinions filed by Chief Justice Rehnquist and Justices Scalia, Thomas and Kennedy. Kennedy previously had supported the right to choose abortion in the Casey decision.

  The 5-4 vote in Stenberg is an ominous sign for Roe's future. The Supreme Court is only one vote away from overturning Roe, which would be one of the most radical actions taken in the history of the Court. Without Roe, life for American women would be thrown more than 30 years in reverse, returning them to the days when women could not fully control the number and spacing of their children. Without the ability to make this key decision, women will be denied opportunities to realize their future and take advantage of educational and career opportunities.

  The world is looking to the U.S. to establish a vision of justice for the 21st century. It is not a time for our political leaders to divide this nation by turning the clock back on women's human rights.

  1 Willard Cates, Jr., and Robert W. Rochat, Illegal Abortions in the United States: 1972-74, 8 Fam. Plan. Persp. 86, 92 (1976) (footnote omitted)。

  2 See Lawrence Lader, Abortion 3 (1966); Cates & Rochat, supra, at 86-92; see also Nancy Binkin, Julian Gold and Willard Cates, Jr., Illegal Abortion Deaths in the United States: Why Are They Still Occuring? 14 Fam. Plan. Persp. 163, 166 (1982) (Roe resulted in a dramatic decline in deaths due to illegal abortion)。

  Janet Benshoof is one of the nation's foremost experts on reproductive rights and privacy law, and has been advocating for women's health and equality for over twenty years. Benshoof is the founder and president of the Center for Reproductive Law and Policy, a legal advocacy organization dedicated to advancing and protecting women's reproductive rights worldwide.

  In 2000, The National Law Journal listed Benshoof as one of the "100 Most Influential Lawyers in America", an honor she has received several times. In 1998, that same publication recognized Benshoof as one of the "50 Most Influential Women Lawyers" in the United States. In 1992, Benshoof received the prestigious MacArthur Foundation fellowship in recognition of her contribution to women's reproductive freedom. Benshoof received her juris doctor from Harvard Law School in 1972.

  Roe v. Wade案的过去和现在


  1973年1月22日美国最高法院否决了德克萨斯州刑事堕胎法,判定决定是否生育的权利是一项由美国宪法保证的基本权利。Roe v. Wade案件7:2的判决对美国妇女的生活产生了直接和深远的影响。



  Roe v. Wade案件的判决具有里程碑的意义,它确认了妇女选择生育的权利对妇女生活的重要意义以及妇女在社会中完全平等的参与能力。然而,最高法院对Roe案件的判决远非根本性的,-它是对19世纪末20世纪初高级法院隐私权判例的合理延伸。这项判决与保证人们谢绝医疗的权利和抵制政府调查和扣押的自由具有同样的推理基础。为了判定宪法上的隐私权包括妇女选择是否继续怀孕的权利,高级法院延续了一系列判决确定保护私人隐私权免于政府的干扰,包括那些影响儿童抚养、婚姻、生殖和避孕品的使用的判决。




  Roe案件的判决刚刚作出之后,那些不想看到妇女平等地参与社会生活的人受到了很大的刺激。极右派分子发动了一场政治上的冲击运动,结果是许多州和联邦立法机关开始对堕胎进行限制,以及促成了最高法院的变动,这在意识形态上扭曲了Roe案件的精辟判决。选择堕胎的权利不仅成为宗教权批判的目标,而且成为右翼政治家和法官攻击的对象,他们利用Roe案件的判决来攻击最高法院“司法激进主义”,声称最高法院未能遵循宪法的基本内容、扭曲了立法者本来的意图。这种对抗式反应在里根和布什总统任职期间达到了顶峰。1983年初,美国司法部长代表美国联邦政府例行公事的敦促最高法院推翻Roe案件的判决。除此之外,在任命最高法院法官时,里根和布什总统都以反对Roe案件的判决作为最后的检验标准。在这12年间,有五位法官被任命,他们是O'Connor, Scalia, Kennedy, Souter, 和Thomas.这些法官直到今天还构成最高法院的多数派,但是他们并不支持由Roe案件所建立的“严格审查”标准。


  在Roe 案件判决作出不久,州立法机关开始颁布新的法律以期望创建Roe案件判决的例外情况,或者开辟Roe案件未直接管辖的新的法律领域。在整整20年的时间里,没有一种其他的权利被如此正面攻击过,并如此成功的被破坏掉。恰恰在这20年间,妇女权利的其他领域保持蓬勃的发展,包括教育权和工作权。

  未成年人成为最初成功被破坏的目标。1979年最高法院批准了州有关于未成年人堕胎需要征求父母同意的法律,只要这种法律规定了一个比较复杂的制度,未成年人可以借此主张自己的隐私权,他们可以要求法院召开听证会以讨论他们是否是足够“成熟的”或者堕胎符合他们的最大利益。(Bellotti v. Baird)

  对Roe案件判决的第二个攻击目标是低收入妇女。1980年最高法院在Harris v. McRae案中以5:4的比例支持了海德修正案关于禁止医疗补助覆盖大多数堕胎的规定。最高法院放弃了Roe案件所必需的中立性,判决到,对贫穷的妇女来讲,只要政府通过公共财政计划而不是刑法来帮助妇女,政府就能够促进妇女分娩而非堕胎。

  因在1983年的City of Akron v. Akron Center for Reproductive Health案中持不同意见,法官O'Connor号召了一次对Roe案件判决的根本性的冲击,并提议建立一个对宪法保护的选择权的次级标准,即“不适当的负担”标准,以代替“严格审查”标准。到1989年,随着法官Kennedy和Scalia的到来以及法官Rehnquist被提升为首席法官,最高法院不再有五名法官认为生育权是一种基本的宪法权利。最高法院在1989年Webster v. Reproductive Health Services案件中的裁决证明了这个新的事实,当时有五名法官不同程度的表达了对Roe案件判决的否定,在实质上要求各州通过立法形式禁止堕胎以执行法律。

  三年后,在Casey案中,根据法官O'Connor, Kennedy和Souter的多数意见,Roe案件判决所建立起来的严格司法审查标准被完全抛弃。虽然法院声称它并未推翻Roe案件判决的中心前提即堕胎是一项基本权利,但是Casey案的判决仍然用弱的、易混淆的不适当负担标准取代了调节其他基本权利的最初的“严格审查”标准。这为各州和联邦制定的旨在引导妇女远离堕胎以及促进整个怀孕期间胎儿的权利的刑事限制性规定打开了方便之门。在过去的六年中,立法机关颁布了300多个刑事堕胎限制性规定,根据最初的Roe案件的判决,这些规定都是不合乎宪法的。



  根据1992年最高法院在Planned Parenthood of Southeastern Pennsylvania v. Casey案件中的判决,上述支柱中仅有两个被保留到了今天。这个判决可以作为隐私权的宪法保护持续削弱的顶点。妇女选择堕胎的权利仍然可以根据宪法受到保护,但是“严格审查”标准被废弃,取而代之的是一个对生育权保护的次级标准,即“不适当负担”标准。根据Casey案的判决,州和地方制定有关于保护胎儿权利、为妇女选择堕胎的权利施加负担的法律是被允许的,只要这种负担不是“不适当的”。州在妇女选择堕胎还是分娩上的态度不再是中立的。现在政府可以根据“道德”标准自由地颁布法律限制堕胎,“道德”一词是宗教领域的反堕胎词汇。现在各州被允许限制堕胎,并根据法律惩罚进行堕胎的妇女,甚至于那些年轻的、患病的妇女。


  在2000年,Casey案件判决的8年之后,最高法院同意审理另外一个案件,通过这个案件最高法院对Roe案件判决进行了重新审查。在那个时期,总统克林顿任命了两个法官:Ginsburg和Breyer.21世纪对Roe案件判决进行的第一个挑战是以生育法律政策中心对内布拉斯加州提起的所谓的“部分生育堕胎”的禁令的形式出现的。内布拉斯加州禁令的语言极其广泛,在本质上包含了所有的堕胎手术,甚至于那些在怀孕初期进行的手术。类似版本的禁令在其他30个州出现。然而,这些禁令的支持者通过使用一个由国家生命权委员会创造的词汇 “部分生育堕胎”公然掩盖这样的事实,并伪称这些禁令只是为禁止医生使用一种特殊的手术。

  在2000年的Stenberg v. Carhart案中,最高法院以5:4的比例否决了内布拉斯加州的这个禁令,法院判决道,这个禁令是违反宪法的,也是对Roe和Casey案件判决的违背,因为禁令没有规定保护妇女健康的例外情况,并对妇女选择堕胎的权利施加了不适当的负担。

  除此之外,法院判定这个禁令的影响要超出对所谓 “晚期”堕胎的禁止,法院同时裁决道,这项禁令的语言如此广泛和模糊以至于在胎儿存活期之前进行宪法保护的堕胎手术都被禁止了。判决中的多数意见由五名法官作出,其他四名法官发表独立的反对意见,他们是首席法官Rehnquist、法官Scalia、法官Thomas和法官Kennedy.先前法官 Kennedy曾在Casey案件的判决中支持妇女选择堕胎的权利。