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Back to the Ban?: Abortion Law After the Demise of Roe v. Wade
| Article
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20507 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
5 / 1992 |
6,655 Words |
| Author
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Lynn D. Wardle
Lynn D. Wardle, professor of law at Brigham Young University,
is the author of The Abortion Privacy Doctrine, and coauthor
of A Lawyer Looks at Abortion. He has written numerous
articles about Supreme Court abortion cases for professional
journals. |
No decision of the Supreme Court in the twentieth century has provoked more controversy than the 1973 Supreme Court decision in Roe v. Wade. It was a revolutionary decision in its effect on constitutional doctrine, public values, and social behavior. But the revolution will soon be over.
In 1989, a prevailing plurality of the Supreme Court (four justices) in Webster v. Reproductive Health Services expressed dissatisfaction with the Roe doctrine. The Court did not overrule Roe, but the criticism of Roe was so direct and explicit that Webster has widely been interpreted as sounding the death knell for Roe. The subsequent retirement of two justices who consistently supported and voted to extend Roe, and their replacement with two justices appointed by a Republican "pro-life" president, has increased speculation that Roe will soon be relegated to the trash bin of constitutional history.
Four cases are presently headed for the Court that present the opportunity to reconsider Roe v. Wade. It is likely that the Supreme Court will use one or more of these cases to jettison a substantial part of the Roe doctrine. However, it is unlikely that the Court will overturn Roe entirely.
The repudiation of the Roe doctrine will not be the great, ultimate victory that some pro-life groups are looking for (and some pro-choice groups are dreading.) The Supreme Court will not ban abortion, that is, declare that elective abortion is unconstitutional. However, it will shift the primary arena for the abortion controversy from the courts to the state legislatures and Congress.
After the Roe doctrine is abandoned, a wide variety of abortion laws will be enacted. Some states will codify the Roe doctrine or incorporate it into their state constitutions. Others will enact very restrictive abortion laws. But mostly moderate, compromise laws will be enacted.
Thus, Roe will end not with a bang or a whimper but with a judicial sigh of relief. And, perhaps, a legislative cry of dismay.
The Origin And Progeny Of Roe v. Wade
In 1970 an unmarried woman living in Texas became pregnant and wanted an abortion. The Texas criminal abortion law prohibited abortion except for the purpose of saving the life of the mother. This woman's life was not in danger, nor did any of the "hard
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