Pope Francis told Iraqi Christians that when they suffer discrimination, persecution or war, the Eight…
Living in a world without ‘Roe v. Wade’
A leaked draft opinion on abortion indicates that the U.S. Supreme Court may be prepared to overturn the court’s 1973 decision in Roe v. Wade and its 1992 successor, Planned Parenthood v. Casey. If that happens, what can we expect from a post-Roe world, and how should we respond?
The outraged statements, protests and even occasional violence by abortion supporters imply that this is an unprecedented power grab by the court. But the opposite is true. It was Roe that dictated one extreme policy to the nation, without a valid basis in the Constitution. Even many legal experts who support legalized abortion have pointed this out.
Dissenting from the 1973 decision, Justice Byron White — named to the court by President John F. Kennedy — denounced it as “an act of raw judicial power.” Roe declared a constitutional right to abortion through the sixth month of pregnancy — and up to the ninth month if a doctor says abortion would serve the mother’s “health,” defined in a companion decision to include her emotional or social “well-being.”
In one fell swoop, the court overturned the abortion laws of all 50 states. That policy was largely reaffirmed two decades later in Planned Parenthood v. Casey. There, the court admitted that in 1973 it may not have given enough attention to the life of the unborn child, but it still said Roe should be upheld, noting that “[a]n entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.”
The court is now saying that a wrong decision remains wrong even if it has been in place a long time. That was certainly true in 1954, when the court overturned a 58-year-old prior decision allowing racial segregation in schools. The 1954 decision called on many white Americans to change their lives and on states to reorganize their educational systems, and it prompted protests, riots and even violence.
What pro-life Americans must not do is return anger for anger. Women and men who relied on ready access to abortion in planning their lives are living in a new world, and many are surprised and frightened by that. We should work to calm those fears, showing ourselves to be fully committed to assisting women in need.
Anticipating a possible change on the court, the Catholic bishops’ conference over a year ago launched the Walking With Moms in Need project — encouraging every parish in the United States to expand and improve its support for women with unexpected pregnancies and their children. These and similar efforts must continue. Eventually, even abortion supporters may realize that when we insist that both mother and child need our help, we mean what we say.
To be sure, the draft opinion does not demand a nationwide policy against abortion. It leaves the people and elected representatives of each state free to make laws garnering public support. Pro-life women and men, who make up about half the population, will face a level playing field for making their case to others.
About half of the states may enact laws protecting unborn children. Some others have their own laws, or even state constitutional amendments, protecting abortion — and those will remain in place unless voters or legislators replace them. A few states have gone beyond Roe to require abortion coverage in health insurance, weaken conscience protections for pro-life health care providers, authorize non-physicians to perform abortions and so on.
Such an extreme pro-abortion law has even been attempted in Congress, supported by almost all its Democratic members. This Women’s Health Protection Act would overturn hundreds of modest state laws allowed under Roe, even laws protecting the health of women seeking abortions. But it has twice been defeated in the Senate. At present, the same fate would befall federal pro-life legislation.
Pro-life legislators themselves may be tempted to overreach, after long decades in the political wilderness. Louisiana recently considered a bill that could bring homicide charges against women undergoing abortions. That approach is not supported by the pro-life movement — and 70 pro-life organizations, including the bishops’ conference, successfully urged the legislators to remove that provision.
Even under Roe and Casey, abortions have declined from a peak of 1.6 million a year in 1990 to about half that number — thanks in large part to modest or incremental pro-life laws. In his 1995 encyclical “The Gospel of Life” (Evangelium Vitae, No. 73), Pope St. John Paul II said we may pursue such “imperfect” legislation to reduce the evil of past policies and pave the way for later progress.
The new Supreme Court opinion, if issued essentially as drafted, will expand opportunities for laws directly protecting unborn human life — always taking into account how far our fellow citizens may be willing to travel on this path at a given time. The ultimate goal, after all, is not only to pass pro-life laws but to make those laws part of the broader task of building a culture of life.
Richard M. Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.