Under the U.S. Supreme Court: Nation marks 40th anniversary of Roe

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent
Thousands of anti-abortion protesters walk past US Capitol during the March for Life in Washington on January 23, 2012. UPI/Yuri Gripas.
Thousands of anti-abortion protesters walk past US Capitol during the March for Life in Washington on January 23, 2012. UPI/Yuri Gripas. | License Photo

WASHINGTON, Jan. 27 (UPI) -- The nation marked the 40th anniversary last week of Roe vs. Wade, the landmark U.S. Supreme Court ruling that recognized a woman's right to an abortion.

But the debates over abortion, and over the so-called morning after pill which some also consider abortion, are far from over.


The decision in a case out of Texas still evokes strong emotions from opponents and supporters. The annual March for Life, in which tens of thousands of abortion opponents march from the National Mall up Constitution Avenue to break like a huge wave against the guarded plaza of the Supreme Court, was held Friday to avoid last Monday's inauguration crowds.

Jeanne Monahan took over the reins of the March for Life Education and Defense Fund in November after the death of founder Nellie Gray in August at age 88. The fund is responsible for organizing and running the march and other activities surrounding it each year since 1974, the first anniversary of the decision.


Before her previous job as director of the Center for Human Dignity at the Family Research Council, Monahan served in various capacities at the U.S. Department of Health and Human Services until its increasing support for abortion caused her to resign in 2009, the fund said.

In an email before last week's event, Monahan said the march crowd could be big this year.

"We don't have a formal estimate but are seeing indicators that we will have record breaking crowds. Our hotel block was sold out much earlier than in the past and media inquiries have been more numerous than ever before!"

Organizers have estimated the size of past crowds at 400,000, though police estimates have been lower.

Monahan also said there has been no loss in fervor among participants.

"No, in fact just the opposite!" Monahan said. "Opinion polls also reveal that Americans are becoming more pro-life. Young Americans are also predominantly pro-life."

She adds, "I am more hopeful [at least in the next four years] that we will continue enacting strong pro-life laws at the level of the state, which significantly decrease the number of abortions."

As usual, despite the size of the march, the protest was peaceful.


Written by the late Justice Harry Blackmun and handed down on Jan. 22, 1973, the 7-2 opinion in Roe said in part, "State criminal abortion laws, like those involved here, that exempt from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the due process clause of the 14th Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy."

Blackmun conceded a state "has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a 'compelling' point at various stages of the woman's approach to term." But an abortion, until the onset of a third trimester, "must be left to the medical judgment of the pregnant woman's attending physician."

Some, but not all, of the sweep of Roe has been chipped away in subsequent Supreme Court decisions.

In 1992's Planned Parenthood vs. Casey, there was no majority opinion, but a majority of the justices reaffirmed the core holding of Roe -- that a woman has a privacy right to an abortion.

But except for a spousal notification, the court upheld a series of restrictions on abortion in a Pennsylvania law, including a requirement that a woman must indicate "informed consent" before the procedure.


Piecing together the different plurality opinions in Casey, five justices upheld Roe's core principle.

Four court members, Chief Justice William Rehnquist and Justices Byron White, Antonin Scalia and Clarence Thomas, said they wanted "a re-examination of the 'fundamental right' Roe accorded to a woman's decision to abort a fetus, with the concomitant requirement that any state regulation of abortion survive 'strict scrutiny,' ... is warranted by the confusing and uncertain state of this [Supreme] Court's post-Roe decisional law." Scalia and Thomas remain on the court.

In 2000's Stenberg vs. Carhart, a 5-4 decision struck down Nebraska's ban on so-called partial-birth abortions, saying the criminal statute violated the principles outlined in Roe and Casey, and lacked the essential exemption for abortion because of the health of the woman.

In Stenberg, the majority opinion, signed on to by Justice Sandra Day O'Connor, tried to explain the differences between the types of abortions.

"During a pregnancy's second trimester [12 to 24 weeks], the most common abortion procedure is 'dilation and evacuation,' which involves dilation of the cervix, removal of at least some fetal tissue using non-vacuum surgical instruments, and [after the 15th week] the potential need for instrumental dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus," the opinion said.


"When such dismemberment is necessary, it typically occurs as the doctor pulls a portion of the fetus through the cervix into the birth canal. The risks of mortality and complication [for the mother] that accompany D&E are significantly lower than those accompanying induced labor procedures [the next safest mid-second-trimester procedures].

"A variation of D&E, known as 'intact D&E,' is used after 16 weeks. It involves removing the fetus from the uterus through the cervix 'intact,' i.e., in one pass rather than several passes. The intact D&E proceeds in one of two ways, depending on whether the fetus presents head first or feet first. The feet-first method is known as 'dilation and extraction.' D&X is ordinarily associated with the term 'partial birth abortion.'"

In response to Stenhart, Congress in 2003 enacted the Partial-Birth Abortion Ban Act.

In 2007, with swing vote O'Connor retired, a different 5-4 Supreme Court majority upheld the federal act, saying it "does not regulate the most common abortion procedures used in the first trimester of pregnancy, when the vast majority of abortions take place."

In the narrow majority opinion, Justice Anthony Kennedy said: "The act's failure to allow the banned procedure's use where 'necessary, in appropriate medical judgment, for preservation of the [mother's] health,' ... does not have the effect of imposing an unconstitutional burden on the abortion right. The [Supreme] Court [majority] assumes the act's prohibition would be unconstitutional, under controlling precedents, if it 'subject[ed women] to significant health risks.' ...


"Whether the act creates such risks was, however, a contested factual question below: The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their positions. The court's precedents instruct that the act can survive facial attack when this medical uncertainty persists."

The contraception mandate of the Affordable Care Act requires for-profit companies to provide contraception as part of employees' health insurance. It too is under attack, primarily because of the morning after pill.

So-called morning after pills are actually taken immediately after intercourse to disrupt fertilization or ovulation.

The owners of an Oklahoma City company, Hobby Lobby, argued in court their religious beliefs required them to reject the contraception mandate.

"A new government healthcare mandate says that our family business must provide what I believe are abortion-causing drugs as part of our health insurance," Hobby Lobby founder David Green said in a September opinion piece in USA Today. "Being Christians, we don't pay for drugs that might cause abortions. Which means that we don't cover emergency contraception, the morning after pill or the week-after pill. We believe doing so might end a life after the moment of conception, something that is contrary to our most important beliefs. It goes against the biblical principles on which we have run this company since Day 1. If we refuse to comply, we could face $1.3 million per day in government fines."


In contrast, the Obama administration argues contraception coverage is an essential healthcare right.

Justice Sonia Sotomayor refused to stay a ruling by the lower courts that Hobby Lobby, as a for-profit company, did not have a religious exemption from the contraception mandate. But Hobby Lobby vowed it would argue the issue through the appeals court process and then ask the full Supreme Court for review.

In another case, a federal appeals court granted a stay of the contraception mandate for a Highland, Ill., for-profit company based on its owners' religious convictions, creating a conflict among the appeals courts and making it more likely the Supreme Court eventually will have to deal with the issue.

At least 42 complaints have been filed against the contraception mandate -- mostly by hospitals and schools, but also 14 from for-profit companies.

How frequently do pregnancies end in abortions?

The Orlando Women's Center, which provides abortions and the morning after pill in Florida, says on its website nearly half of all pregnancies among American women are unintended, and 4 in 10 of those are terminated by abortion.

On Jan. 16, the Pew Forum on Religion and Public Life released a poll that indicated "the public remains opposed to completely overturning the historic ruling on abortion [Roe]. More than 6 in 10 [63 percent] say they would not like to see the court completely overturn Roe vs. Wade decision, which established a woman's constitutional right to abortion at least in the first three months of pregnancy. Only about 3 in 10 [29 percent] would like to see the ruling overturned. These opinions are little changed from surveys conducted 10 and 20 years ago."


Not everyone knows what Roe was all about, the poll said. Sixty-two percent of Americans "know that Roe vs. Wade dealt with abortion rather than school desegregation or some other issue. But the rest either guess incorrectly [17 percent] or do not know what the case was about [20 percent]."

The latest national survey by the Pew Research Center was conducted Jan. 9-13 among 1,502 adults, and "finds that abortion is viewed as a less important issue than in the past. Currently, 53 percent say abortion 'is not that important compared to other issues,' up from 48 percent in 2009 and 32 percent in 2006. The percentage viewing abortion as a 'critical issue facing the country' fell from 28 percent in 2006 to 15 percent in 2009 and now stands at 18 percent."

The poll said the public is divided over "whether it is morally acceptable to have an abortion. Nearly half [47 percent] say it is morally wrong to have an abortion, while just 13 percent find this morally acceptable; 27 percent say this is not a moral issue and 9 percent volunteer that it depends on the situation. These opinions have changed little since 2006."

The margin of error was 2.9 percentage points.


Meanwhile, a poll released last Tuesday on the 40th anniversary of Roe indicates 70 percent of U.S. residents do not want the landmark on abortion ruling overturned.

The NBC News/Wall Street Journal poll found 54 percent of respondents said abortion should be legal in all or most circumstances, the highest number since the survey began asking that question 10 years ago. The 70 percent support for the ruling is the highest level since 1989.

At the same time, many states are making legal abortions harder to get, NBC reported. The poll surveyed 1,000 adults by telephone Jan. 12-15. The margin of error is 3.1 percentage points.

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