Nicole Brooks

Cultural, Political, and Legal Divide over Roe v. Wade

12/5/2008
 2

The 1973 Supreme Court case Roe v. Wade and the right for a woman to choose whether

or not to have an abortion has been a hot topic in the United States since this decision. Since the

decision was made to remove any legal impediments to a first trimester abortion, the two sides of

the issue have become vehemently opposed particularly since the 1980’s. This opposition has

been centered not only on the legality of the abortion, but it has also split the nation culturally

and most of all politically.

Laws governing abortions in the United States were hardly new in the 1970’s. As early as

1821, Connecticut had criminalized an abortion after quickening, which is when the mother can

feel the baby move. The rest of the country followed suit and by 1910, Kentucky was the only

state that had not made abortion a felony.1 Until the 1970’s, states decided individually on the

legality of abortion. Some states did allow abortions on a limited basis; woman from out of state

could travel and be eligible for an abortion. On the other hand lower class women, particularly

minorities, were unable to obtain a legal abortion. Instead they had to resort to dangerous illegal

or self-induced abortions. It is impossible to know the true statistics, but the American Medical

Association reported in 1871 that roughly 20% of pregnancies were terminated.2 The estimates

for the 1950’s and 1960’s range from 200,000 to 1.2 million illegal abortions being performed.

In 1965, 17% of reported deaths related to pregnancy and childbirth were caused by illegal

abortions. These deaths led to liberalization in the 1970’s of abortion statutes, which would now

granted abortions under certain circumstances. These circumstances included when a woman’s

health was in danger, instances where the pregnancy was caused by rape or incest, or in cases of

1
Karen O’Connor. Current Controversies: The Abortion Controversy (Detroit, MI: Greenhaven
Press, 2007).
2
Karen O’Connor. Current Controversies: The Abortion Controversy (Detroit, MI: Greenhaven
Press, 2007).
 3

possible fetal abnormality.3 Liberalization led to Alaska, New York, Hawaii, and Washington

decriminalizing abortions in the early stages of the pregnancy.

Most cases come before the Supreme Court when a case is brought against a state, in

which the victim claims that state law is violating the Constitution. Most cases begin in a federal

District Court, and will then be appealed to the U.S. Circuit Court of Appeals. Roe v. Wade

however did not work this way; instead this case was brought up directly from the District

Court.4 Because of the unique way Roe was brought before the Supreme Court gives strength to

the argument that the Supreme Court had no right to hear the case in the first place.

The Supreme Court decided that the right to privacy, which was upheld in precedents

dealing with contraception in the 1960’s and early 70’s, extended to the right to an abortion

unless the state had ‘compelling interest’ in preventing the abortion. Compelling interest cannot

be found until the fetus is viable, typically in the third trimester.5 This ruling invalidated all state

laws that banned abortion in all cases, but laws that restricted abortions during the third trimester

were not affected. Laws that banned abortions during the second trimester were not allowed to

ban abortions where the mother’s health was in danger.

Since the 1970’s, the split on legality has been whether or not the Supreme Court

overstepped its rights when it decided the right to privacy extended to reproductive rights and it

should be overturned.6 Or that the right to privacy extended in Roe v. Wade was a well

recognized common law tradition and the legal threats against Roe are baseless.7 The third split

on legality is of the feminist perspective, that Roe v. Wade was a bad decision not because
3
Karen O’Connor. Current Controversies: The Abortion Controversy (Detroit, MI: Greenhaven
Press, 2007).
4
John Schwenkler. At Issue: The Ethics of Abortion (San Diego, CA: Greenhaven Press, 2001).
5
John Schwenkler. At Issue: The Ethics of Abortion (San Diego, CA: Greenhaven Press, 2001).
6
Jennifer Hurley. At Issue: The Ethics of Abortion. (San Diego, CA: Greenhaven Press, 2001).
7
Karen O’Connor. “Current Controversies: The Abortion Controversy” (Detroit, MI:
Greenhaven Press, 2007).
 4

abortion is wrong, but because the justices were not specific enough in why the ability to choose

is a constitutional right.8

Ironically both sides of the legal debate compare Roe v. Wade to black civil liberty a

century earlier. Those who favor abortion compare the attempts to roll back abortion rights to the

Supreme Court decisions in the 1800’s that limited civil rights for blacks after they had been

granted civil status with the 13th, 14th, and 15th amendments. Such examples include the Plessey

v. Ferguson decision that upheld the idea of separate but equal. While the court has not

overturned Roe altogether, it has upheld four of the five restrictions states have placed on it,

including required counseling called informed consent, a 24-hour waiting period, parental

consent, as well as strict reporting and record keeping by doctors and clinics.9

On the other hand, some who feel that in the Roe v. Wade case the Supreme Court went

too far believe, as in the Dred Scott decision which allowed slaveholders to keep their slaves in

free states, the Court will see the error of their ways and reverse Roe. Jennifer Hurley in her book

At Issue: The Ethics of Abortion, even go as far as to believe it possible another civil war could

erupt over abortion.10 As she sees it the Supreme Court is wrong about Roe, just as the Supreme

Court was wrong in the Dred Scott decision, but as of now the justices are not willing to admit

their mistake and overturn Roe.

Judith Baer though puts the best legal argument concerning Roe v. Wade forth in her

article titled What We Know as Women: A New Look at Roe v. Wade. Baer uses a feminist

constitutional argument that is in favor of abortion rights, but believes that Roe is not strong

enough to guarantee those rights. She argues that the public discussion over abortion has become
8
Judith A. Baer, “What We Know as Women: A New Look at Roe v. Wade,” NWSA Joural 2,
no. 4 (1990): 558-582.
9
Wallace Mendelson, “Sex and the Singular Constitution:What Remains of Roe v. Wade?” PS:
Political Science & Politics (1993): 206-208
10
Jennifer Hurley. At Issue: The Ethics of Abortion. (San Diego, CA: Greenhaven Press, 2001).
 5

too passionate, that reasoned arguments with constitutional guarantees are not being argued. Baer

also contends that the idea a person can oppose the act of abortion, but still agree there is a

constitutional right to choose, has vanished from the debate.11 To often when debating abortion

debaters become overwhelmed by arguments of religion or personal morals rather than the

constitutional legality of privacy or choice. A lack of strong constitutional reasoning is

dangerous for supporters of Roe who claim precedence when supporting abortion rights. Because

this precedence is based solely on Roe and subsequent decisions, which leaves abortion rights

vulnerable if Roe v. Wade is ever overturned. Instead the pro-choice community should demand

a better decision giving strong constitutional arguments in support of abortion rights rather than

hang on to Roe so strongly.

The legal arguments for or against Roe have transitioned into the political debate in

America. The Roe v. Wade decision came seemingly out of nowhere in the 1970’s. The pro-

choice faction fears the appointment of conservative justices will lead the Supreme Court will

overturn Roe altogether. Even if the Supreme Court does not overturn Roe, pro-choice leaders

worry that state legislatures or the federal government will find ways to chip at Roe until it no

longer holds any merit. On the other hand those who are pro-life fear that this country will

continue its “unlimited right to the private use of lethal force against innocent human beings.”12

This has caused abortion to become a litmus test in American politics; pro-life equals

conservative and pro-choice equals liberal.

Typically the Republican Party is the pro-life party, and the Democrats are pro-choice. In

the immediate years after Roe neither party made a major stand for or against abortion, it was not

11
Judith A. Baer, “What We Know as Women: A New Look at Roe v. Wade,” NWSA Joural 2,
no. 4 (1990): 558-582.
12
Jennifer Hurley. “At Issue: The Ethics of Abortion” (San Diego, CA: Greenhaven Press,
2001).
 6

until the Reagan Revolution that the political debate really took shape. Since the Democrats held

congress throughout President Reagan, and then George H.W. Bush’s terms neither was able to

make major headway. During the Reagan-Bush years there was no consensus on how to best

eliminate abortion rights. Instead both Presidents had enacted some restrictions that were

overturned early in President Clinton’s first term. In the 1990’s, the Republican Party became the

majority party in Congress and was able find unity on abortion. This unity was in the idea of

gradualism, which meant, while a complete over-turning of Roe was not possible, it would be

possible to gradually eliminate abortion rights. During the 104th Congress, the Republicans took

on a platform that eroded abortion rights by restoring the restrictions on abortions that had been

enacted during the Reagan-Bush years.13 This strategy of gradualism corresponded with the

policy of the religious anti-abortion Christian Coalition who was the leading organization of the

new religious-right who in the 1980’s had become a major factor in the Republican Party.14

The Republicans major successes in the 104th Congress included a repeal of President

Clinton’s policy requiring states to use Medicare funds to pay for abortions in the cases of rape,

incest, or where the mother’s life was in danger. Congressional Republicans also eliminated

government funding for any organizations that promoted and performed abortions and abortion

counseling.15 Also significant, was that for the first time since Roe both houses of Congress

voted to ban a particular abortion procedure. This procedure dubbed partial-birth abortions by

pro-life factions is a surgical abortion wherein an intact fetus is removed from the uterus via the

cervix.16 While President Clinton vetoed this law, it marked a significant turn in the politics of
13
Douglas W. Jaenicke, “Abortion and Partisanship in the 104th U.S. Congress,” Politics 18, no.
1 (1998): 1-9.
14
Douglas W. Jaenicke, “Abortion and Partisanship in the 104th U.S. Congress,” Politics 18, no.
1 (1998): 1-9.
15
Douglas W. Jaenicke, “Abortion and Partisanship in the 104th U.S. Congress,” Politics 18, no.
1 (1998): 1-9.
16
“American Medical Association,” http://www.ama-assn.org/ (accessed Nov. 30, 2008).
 7

abortion. Science had blurred the lines of viability and the trimester line used in the 1970’s no

longer worked in 1990.17 By the 1990’s politics were now being used to decide viability rather

than medicine.

Culture can be defined as “the way of life, especially the general customs and beliefs, of a

particular group of people at a particular time.”18 In terms of the abortion debate there are three

main groups; pro-choice culture, pro-life culture, and popular culture. Popular culture includes

those who do not self-identify with either the pro-choice or pro-life groups. These cultural

groups cross the lines of race, sex, religion, and location with no one culture having a monopoly

over any demographic. While support of abortions in which the mother’s health is in danger has

risen in the last few decades, there is still no overwhelming support of discretionary abortions.

Since the 1970’s, attempts have been made to thoroughly understand both sides of the debate,

but this has been very difficult.19 It is hard to determine public opinion about a very complex

issue such as Roe with just a few questions, particularly because abortion raises such deep moral

and religious issues as when viability occurs and when the child’s life is more important than the

mother’s.

People in either the pro-life or pro-choice groups have well formed and passionate

opinions on abortion, those who are not at either end of the spectrum are less sure about what

they believe. Since 1973 pollsters have been trying to gauge the exact opinion of the American

public who are not as out-spoken on this issue. One of the major issues with looking at the

various data that is available on abortion is the fact that wording has such a huge impact on a

17
Douglas W. Jaenicke, “Abortion and Partisanship in the 104th U.S. Congress,” Politics 18, no.
1 (1998): 1-9.
18
“Cambridge Dictionary Online,” http://dictionary.cambridge.org/define.asp?key=18888&d...
(accessed Nov. 30, 2008).
19
Raymond J. Adamek. “The Polls-A Review Public Opinion and Roe v. Wade: Measurement
Difficulties” The Public Opinion Quarterly. 58 No. 3 (1994):409-418
 8

person’s answer. The polls that are available vary; there are the direct question polls that ask

whether or not abortion should be legal. Or there are polls that reference the actual Supreme

Court decisions, which can be tricky if the responder does not completely understand the Roe v.

Wade case. There is also a third type of poll that is popular, this poll asks whether or not there

should be a constitutional amendment banning abortions.20 One person could give vastly

different answers depending on what question is being asked.

If the question on abortion is asked in a way that place the emphasis on a woman’s right

to choose than the responses tend to be more in favor of abortion rights.21 The mention of a

doctor in the question, particularly as being a part of the decision process, also elicits higher

flavorful responses even though the doctor is no longer a major player in this decision.

According to a group of five studies done between 1977-1985 found less than 25% of women

had consulted with a doctor before making the decision to terminate their pregnancy.22

There has been some successful polling of public opinion on the abortion issue that

shows that among the majority of Americans support for Roe v. Wade is rising. In November

1969, four years before the Roe decision national support was at 40% of Americans in favor of

legalized abortion. As early as March 1974 this had risen to 47%, with the most dramatic change

being among men with an 11% positive change. Of all the groups surveyed the only group that

had a negative change were those with only a grade school education.23 Otherwise every age

20
Eric M. Uslaner and Ronald E. Weber. “Public Support for Pro-Choice Abortion Policies in
the Nation and States: Changes and Stability After the Roe and Doe Decisions” Michigan Law
Review. 77 No 7 (1979): 1772-1789.
21
Raymond J. Adamek. “The Polls-A Review Public Opinion and Roe v. Wade: Measurement
Difficulties” The Public Opinion Quarterly. 58 No 3 (1994): 409-418.
22
Raymond J. Adamek. “The Polls-A Review Public Opinion and Roe v. Wade: Measurement
Difficulties” The Public Opinion Quarterly. 58 No 3 (1994): 409-418
23
Eric M. Uslaner and Ronald E. Weber. “Public Support for Pro-Choice Abortion Policies in
the Nation and States: Changes and Stability After the Roe and Doe Decisions” Michigan Law
Review. 77 No 7 (1979): 1772-1789.
 9

group, Protestants, Catholics, men, women, high school, and those who were college educated

saw an increase in support for legalized abortion.24 The third culture group that is neither pro-

choice nor pro-life self-identified has been shown to have definite pro-choice leanings.

This cultural split is evidenced in such groups as the Religious Coalition for Abortion

Rights (RCAR), this group believes the law should not endorse any one moral guideline based on

a specific religion.25 A precursor to RCAR was formed in New York in 1967 and officially

became the Religious Coalition for Abortion Rights in 1973.26 During the conservative 1990’s

RCAR changed it’s name to the Religious Coalition for Reproductive Rights (RCRC) and

broadened their message to include contraceptives.27 RCRC’s pro-choice argument has followed

along two lines; the first is the idea that the 1st amendment should be safeguarded, by policy

makers, to include abortions rights over religious belief. The second, which is espoused by

RCRC, is the idea that the law and policy should not be based on any one religious belief and

that religious communities should respect this decision in favor of tolerance.28

Members of the National Right to Life Committee (NRLC) and the National Abortion

Rights Action League (NARAL) were given the same survey to complete during the 1980’s and

the responses show not only their stark differences but also their similarities. Not surprisingly

100% of the NRLC members who were surveyed believed that “abortion involves the killing of a

living creature” and that “since the Supreme Court decisions of 1973, the actual number of
24
Eric M. Uslaner and Ronald E. Weber. “Public Support for Pro-Choice Abortion Policies in
the Nation and States: Changes and Stability After the Roe and Doe Decisions” Michigan Law
Review. 77 No 7 (1979): 1772-1789.
25
Samuel Mills “Abortion and Religious Freedom: The Religious Coalition for Abortion Rights
and the Pro-Choice Movement, 1973-1989” Journal of Church & State (1991): 569-594.
26
“Religious Coalition for Reproductive Choice,” RCRC, http://www.rcrc.org/about/history.cfm
(accessed Dec. 1, 2008).
27
“Religious Coalition for Reproductive Choice,” RCRC, http://www.rcrc.org/about/history.cfm
(accessed Dec. 1, 2008).
28
Paul D. Simmons. “Religious Liberty and Abortion Policy: Casey as “Catch-22” Journal of
Church and State (2000): 69-88.
 10

abortions in the U.S. (legal and illegal) has increased.”29 Roughly 99% believed that life begins

at the moment of conception, and that an unborn child is a living person. On the other hand

NARAL’s answers are not quite so uniform. There is more diversity of beliefs and some even

agree with the NRLC, 10% of NARAL responders believe that life begins at conception, and

27% agree that abortion involves the killing of a living creature.30 There is also some agreement

over the idea that since 1973 abortions have become medically safer with 97% of NARAL

responders and 43% of NRLC responders agreeing with that statement. Also 85% of NARAL

and 48% of NRLC responders agree that without abortions the number of teen mothers would

also increase.

An interesting sub-culture of pro-life culture has been the use of violence to combat

abortion rights. The first instance of violence was in 1976 with the first reported clinic arson, this

was followed up in 1978 with a series of bombing.31 This sub-culture does not see the irony of

using violence and murder to stop what they consider murder. In 1984 a clinic and family

planning officer were targeted within fifteen minutes of each other in Wheaton, Md. The co-

founder of the Pro-Life Non-Violent Action Project, John Cavanaugh-O’Keefe, denied his group

had anything to do with the bombings, but did said that “any pro-lifer that does not feel the urge

to respond to the violence of abortion with violence has lost all feeling for anything.”32

Most mainstream pro-life groups have rejected the violence against clinics and doctors,

but it has lead to the restriction of pro-life groups rights to protest peacefully against abortion.
29
Donald Denney and Donald Granberg. “The Coathanger and the Rose” When Life Begins
Society (1982): 39-46.
30
Donald Denney and Donald Granberg. “The Coathanger and the Rose” When Life Begins
Society (1982): 39-46.
31
“National Abortion Federation: History of Clinic Violence,” National Abortion Federation,
http://www.prochoice.org/about_abortion/violence/histo... (accessed Dec. 2, 2008).
32
Special to The New York Times "Office and Abortion Clinic Damaged." New York Times
(1857-Current file), November 20, 1984, http://www.proquest.com.ezproxy.gvsu.edu/ (accessed
December 2, 2008).
 11

After the murder of Dr. David Gunn in 1993, as well as a string of arsons, blockades and a

bombing, Congress responded to the pressure to end these acts of violence. In 1994 the Freedom

of Access to Clinic Entrances (FACE) Act was passed and signed into law in May of 1994.33

This overwhelming support for FACE by both Republicans and Democrats shows their

constituents while not falling at either end of the spectrum would not stand for the use of

violence.

There is no denying that this country is split on abortion. Whether you are looking at this

issue from a legal, cultural, or political stance the issue has had a polarizing effect. While there is

still weak support for discretionary abortions, abortions that are done in response to rape, incest,

or because of health concerns continue to garner a majority support. Abortion brings out

passionate arguments of law, religion, personal freedom, morality, and whether this issue is

looked at from a legal, cultural, or political viewpoint these arguments have been used. In 1973

when Roe v. Wade was decided there was little discussion, but in the years since particularly the

1980’s each side has defined their arguments and there seems to be no end in sight.

33
“National Abortion Federation: FACE Act,” National Abortion Federation,
http://www.prochoice.org/about_abortion/violence/FACE_... (accessed Dec. 2, 2008).
 12

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 13

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