We acknowledge the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.” — Justice Blackmun

In 1969, 21-year-old Norma McCorvey became pregnant with an unplanned third child. She attempted to get an abortion in Dallas due to a mistaken belief that Texas law permitted abortion in cases of rape and incest when in fact, the law only allowed abortion for purpose of saving the life of the mother. She attempted to obtain an illegal abortion but found that the unauthorized facility she had directed to had been closed down by local authorities. She launched an application to allow her to have an abortion. She gave birth before the case was decided and gave up her child for adoption.

Norma McCorvey (1947-2017)

McCorvey then joined the anti-abortion movement in 1995. In 2005, she unsuccessfully sought to reopen her 1973 case and have Roe v Wade overturned. While she raised legitimate questions about emotional distress suffered by some women who have had abortions, the increasing resources available for the care of unwanted children and the new scientific understanding of fetal development, the court held that the use of legal paternalism to prohibit one potentially harmful practice while opening the floodgates for another harmful practice (violation of the fundamental right to privacy and autonomy) was an insufficient justification to overturn the decision. McCorvey later claimed that he had been paid to join the movement in the 2020 documentary, AKA Jane Roe.

Roe V Wade is one of the most contentious yet lifechanging judgements in legal history. Abortion opponents have classified the decision as a treatise on the evolution of abortion as opposed to an interpretation of the Constitution. Consequently, there has been a concerted effort to overturn the decision and outlaw abortion. In the same breath, more countries have passed legislation legalising and decriminalising abortion, leading to much public outcry. For African women however, the Fourth World Conference on Women: Action for Equality, Development and Peace of 1995 (Beijing Conference) brought real change and the recognition of rights set out in Rose v Wade.

The issue in Roe v Wade was whether state prohibition of abortion was constitutional. The court held that the constitutional right to privacy protected a woman’s freedom to have an abortion.  The legal precedent for the decision was rooted in the 1965 case of Griswold v. Connecticut, which established the right to privacy in medical procedures. The judgement in Roe v Wade fundamentally altered the legal, medical, and political landscape of the rights of women and left an awful taste in the mouths of ‘pro-lifers’ who somehow managed to draw this parallel: that the decision left unborn children as the legal property of their mothers the same way the Supreme Court had left slaves as the legal property of their owners in the 1857 case of Dred Scott v Stanford. There is no basis for equating the exercise of a personal and private choice to an atrocity such as slavery.

The court and at length, rejected the notion that right to privacy was absolute and held that the state has a right to impose some limitations in the exercise of the right to privacy. Granted, liberty is not absolutely guaranteed against deprivation but against deprivation without due process of the law. The court further held that abortion entailed the balancing of two compelling interests, first, protecting the mother’s health, and second, protecting the life of the foetus. The second part “protecting the life of the foetus” is where the wagon wheels fell off. Justice Harry Blackmun should have saved all of humanity from the never-ending abortion debate by sticking to the interpretation of the right to privacy. That right itself would have been a sufficient formula for the decision reached by the court. The current confusion on the beginning of life could have been avoided.

The court also created the “trimester” system which has been incorporated into abortion legislation throughout various jurisdictions. The system entails that: women have an absolute right to an abortion in the first three months of the pregnancy; some government regulation in the second trimester of pregnancy is permissible; and that states may restrict or ban abortions in the last trimester as the foetus nears the point where “it could live outside the womb” and a woman can only obtain an abortion in the final trimester despite any legal ban only where physicians deem it necessary to save the life or health of the mother.

(Aside: Justice Blackmun must return from the dead and explain in his own words what happens between six months and seven months because he created a mess and there is not enough legal interpretation to salvage the confusion)

Justice Harry Andrew Blackmun (1908-1999)

The court further bungled things up by stating that especially in the early stages of the pregnancy, abortion is a medical decision and is up to the physician as a health expert. Justice Ruth Bader Ginsburg was of the strong opinion that the judgement was not women-centric and focused on the rights of the physicians. Some jurists and legal scholars are of the opinion that the judgement reads like a set of medical rules and regulations addressed to health practitioners. In essence, abortion must be understood as a woman’s private and personal decision. Women must be empowered to exercise autonomy without the condition that such autonomy hinges on the approval of somebody else, even a physician. The term pro-choice is an anachronistic term coined in the 1960s.  Then was not used in reference to defending women’s right to choose but protecting women’s reproductive and physical health, preventing the birth of unwanted children, population control and giving medical practitioners greater legal protections in making choices they thought would be in the best interests of their patients. At present, pro-choice does not necessarily mean pro-abortion. It means protecting the rights of women who decide to have abortion.

The court failed to address the question of viability and the beginning of life in medico-legal terms yet referenced the protection of a future interest. The court also failed to weightily quantify its obiter dictum on the rights of the foetus. The court held that the state has an interest in protecting the existing rights of the mother and the rights and interests of the unborn foetus (the potential life). Surely these rights cannot be said to be simultaneously compelling throughout the entire pregnancy. These are distinctly separate interests. The rights of the mother as an individual remain constant and her rights as a potential parent increase with the growth of the pregnancy. The foetus has no legal rights for the duration of the pregnancy and is treated as an extension of the mother until birth. A person and legal personality are constructs of the law. Natural physical personality is a consequence of juridical thinking. Anything outside this determination is based on morality and religious belief. Efforts to establish separate legal “personhood” for fertilized eggs, embryos, and fetuses have been making it exceedingly difficult to demand abortion as a fundamental right while also criminalising foetal damage caused by road accidents, drug and alcohol use. Fetuses, ovums, sperm and embryos are not natural persons and cannot be afforded the same legal protections as natural juristic persons.

It is important to note that the trimester system was not based on the development of the foetus but rather existing medical technology and mortality rate. Back in 1973, the existing prenatal advancement entailed that up until the 12th week, abortion had a lower mortality rate than childbirth and the inverse became true after 12 weeks. Thus, the court was of the view that up until the beginning of the second trimester, the state lacked a compelling interest in the abortion because the abortion would not be harmful to the mother. Unfortunately, the court failed to structure its language to precisely communicate this fact leading to a plethora of abortion statutes across the globe which fail to communicate and interpret the goal of the trimester system.

Justices Byron White and Justice William Rehnquist wrote dissenting judgements.  White believed that the Court had no basis for deciding between the competing values and interests of pregnant women and the protection of unborn children. He argued that the legality of abortion should not have been a judicial decision but a legislative one. This argument failed to take cognisance of the fact that judges are not merely parrots of the law, they have the power to develop the common law and shape the legislative framework. Admittedly, whoever has the power to define constitutional rights also has the power to make nonsense of any particular constitutional right. When considering the fragility of human behaviour it is startling to think that every variation of human behaviour could be converted into legal rights and duties. However, while public policy informs the law, it does not formulate the law, especially in instances where the rights and freedoms of certain groups are infringed.

From the left. Sitting : Potter Stewart, William O. Douglas, Warren Berger (Chief Justice) , William J Brennan Jr, Dyron A White.
Standing Lewis F Powell Jr, Thurgood Marshall, Harry A Blackmun, William Rehnquist

It is often argued that while abortion rights are of great importance to many women, abortion itself is not a liberty protected by the constitution, because it is not expressly mentioned in the constitution and public policy is yet to permit it to be legally proscribed. This view fails to consider the existence of enumerated rights. These are rights which are inferred from other constitutional rights, common law or existing legislation. The law affords constitutional protection for personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. These matters are the most intimate and personal choices a person makes in a lifetime and are central to personal dignity and autonomy. Balancing the interests of a mother and a foetus is a volatile issue, one which can only be resolved by individual morality, bearing in mind that morality cannot and should not dictate the law.

The court was well within its rights to decriminalize abortion in Roe v Wade, albeit some warranted criticism of the formula it took to reach its decision. Legalising abortion prevents unwarranted legal paternalism. Criminalising abortion does not prevent abortion, it only creates a black market for illegal, unsafe, and unregulated abortions, leaving thousands of women permanently injured, sterile or dead.

Disclaimer: This discussion is a statement of law and a basic critique of Roe v Wade. The rules of “No vagina, No opinion” still apply. Do stay out of women’s private parts. https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137