The Shortcut to Outlaw Abortion

The great controversy over abortion in Congress and in the country was set on its current course on January 22, 1973, when the Supreme Court decided the case of Roe v. Wade. The Court had not previously decided whether state laws prohibiting abortion were constitutional. When a woman in northern Texas challenged her state’s abortion law, seven of the nine Justices joined in the Court’s opinion, which recognized that women have a constitutional right to undergo abortion, a right flowing from the “right of privacy” based on the due process clause of the Fourteenth Amendment. In the first trimester of pregnancy that right is nearly absolute; in the second, it is subject only to reasonable regulations directed to preserving the health of the woman herself. Only in the third trimester of pregnancy can the woman’s right to abort her pregnancy be overridden by the state in the name of preserving fetal life.

Since the decision in Roe v. Wade, the Supreme Court has on a number of occasions reaffirmed and extended its reasoning to strike down various state restrictions on abortions, including requirements that abortions be performed in specially accredited hospital facilities and that the woman’s husband or parents consent to the abortion. The Court has refused to apply the Roe principle only under limited circumstances. Twice it has declined to convert the right of a woman to be free from direct legal restraints on abortion to a right to receive public funds to pay for an abortion, even when such funds are available for other medical procedures, including childbirth. And this March, the Court upheld a state law requiring notice to parents of an impending abortion where immature and “unemancipated” minors are involved. In none of these latter cases has the Court questioned the validity of the Roe v. Wade principle itself.

But if the Court has made its peace with the prickly constitutional issue of abortion rights, many others plainly have not. Religion and politics converge in the abortion issue to produce deep passions and strategies which are arrayed against the woman’s right to have an abortion and in favor of “the right to life” of the embryo or fetus. As with other Supreme Court decisions that have set off social controversy, such as those prohibiting religious observances in the public schools, the opponents of Roe v. Wade immediately considered the possibility of a constitutional amendment to nullify the Court’s decision.

Later in 1973 Indiana became the first state to enact legislation calling for a national constitutional convention to draw up an anti-abortion amendment. In Congress, resolutions were quickly introduced in a parallel effort to initiate such an amendment. Especially notable is the amendment proposed by Senator Jesse Helms, the conservative Republican senator from North Carolina, which sought to extend constitutional protection to life “from the moment of conception.” Anti-abortion forces in the United States range from Catholic and Southern Baptist groups to the Republican party itself, and from groups with a …

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Letters

Abortion and the Law October 22, 1981