Roe v. Wade

For many, abortion as a form of birth control should be considered a homicide. For others, any restriction on a woman’s ability to control whether she delivers a baby is a sexist violation of a basic human right.

As we attempt to have an ongoing national discussion on these issues, it is impossible to do so unless everyone has a common reference point.  Most of the people who argue passionately about Roe v. Wade has likely never read the case. Many, if not most, misunderstand what it actually said.

By way of background, in 1965, the Supreme Court established a constitutional right to privacy in Griswold v. Connecticut. The court did not rely on the actual text of the Constitution. Instead, it held that the guarantees listed in the Bill of Rights created penumbras. In short, the spirit of the Constitution established a constitutional right to privacy without any need to amend the Constitution’s actual language.

In 1973, the Supreme Court extended this right to privacy to invalidate state restrictions on abortion in Roe v. Wade. However, Roe v. Wade did not hold that women have an unlimited constitutional right to an abortion.

In Roe v. Wade, the Supreme Court divided a pregnancy into trimesters and held that the right of a woman to have an abortion varied depending on the amount of time she has been pregnant. During the first trimester, a state government could not regulate abortion. During the second, the state could impose restrictions. During the last trimester, the state could regulate abortions and could even prohibit them entirely.  

In 1983, Justice Sandra Day O’Connor noted that the framework of Roe attached abortion rights to a point before the fetus was viable. As medical science advanced, this point would move closer to the date of conception. She therefore concluded that Roe v. Wade was “clearly on a collision course with itself.”

On June 24, 2022, the Supreme Court reversed Roe v. Wade in Dobbs v. Jackson Women’s Health and held there is no federal constitutional right to an abortion. Nothing in the Dobbs decision prohibits abortions.

But now, a state government can restrict, or even prohibit, abortions as long as the state has a rational basis for believing that the restriction serves a legitimate government interest. In the Dobbs case, the Supreme Court applied this rational basis test to a Mississippi law that prohibits abortions after 15 weeks (except for medical emergency or severe fetal abnormality) and found it to be constitutional.

If you strongly support our constitutional structure of separation of powers, and if you believe it defeats the purpose of having a written constitution if the words do not mean what they say, then you may view the Dobbs decision as being correct and logical. People who hold such a view may support the Roe trimester framework as a statute, even if they oppose it being announced in case law. However, that does not end the analysis.

Bioethics issues surrounding abortion often generate difficult discussions. For example, there are pregnancy related conditions that cannot produce a baby, such as ectopic or molar pregnancies. Women undergoing fertility treatment may seek embryo reduction in order to prevent unhealthy multiple births. What if the mother needs to be treated for cancer? Should treating any of these medical conditions be considered an abortion?

If you get your information from something other than cable news or social media, you will discover that most people do not have absolute views on abortion. Some pro-choice advocates tend to use examples of students becoming pregnant after a rape. Some pro-life advocates tend to use examples of women ending their pregnancies after eight months. However, those cases are comparatively rare, which is why most people are either pro-life with exceptions or pro-choice with limits.

Although it is possible to perform a Google search and to find women who claim to be proud of their abortion, I have never heard anyone say, “I think abortions are a great idea. I think all women should have at least three.”

While a unanimous consensus on abortion is a practical impossibility, perhaps everyone could agree to seek ways to make abortions rare. 

Judge Gerald A. Williams is the justice of the peace for the North Valley Justice Court. That court’s jurisdiction includes Glendale, Phoenix, Anthem, and Desert Hills. In prior positions, he served as an attorney representative to medical center bioethics committees.