The Great Abortion Case


No judicial decision in our time has aroused as much sustained public outrage, emotion, and physical violence, or as much intemperate professional criticism, as the Supreme Court’s 1973 decision in Roe v. Wade, which declared, by a seven to two majority, that women have a constitutionally protected right to abortion in the early stages of pregnancy.1 For sixteen years anti-abortion groups and political conservatives have campaigned with single-minded conviction to reverse that decision. They proposed without success a series of constitutional amendments, sponsored unsuccessful bills asking Congress to declare that a fetus’s life begins at conception, persuaded President Reagan to appoint anti-abortion judges to the federal courts, waged single-issue political campaigns against candidates who support a right to abortion, and disrupted and bombed abortion clinics.2 The public at large is divided in different ways about different aspects of the abortion issue. A Los Angeles Times national survey reported that 61 percent of Americans think abortion morally wrong—57 percent think it murder—and yet 74 percent nevertheless believe that “abortion is a decision that has to be made by every woman for herself.”

The composition of the Supreme Court has changed dramatically since 1973,3 and now, in Webster v. Reproductive Health Services, the State of Missouri and the Bush administration ask the Court to reverse Roe v. Wade. The Missouri legislature had enacted a statute designed to discourage abortions in spite of that decision. The statute, among other things, declared that human life begins at conception; it required doctors, as part of determining whether a fetus is viable before undertaking an abortion, to perform expensive, often irrelevant, and sometimes dangerous tests; and it prohibited any abortion in hospitals or medical facilities that employ assets owned, leased, or controlled by the state. Lower federal courts declared all these provisions unconstitutional under Roe v. Wade. Missouri appealed to the Supreme Court, asking the Court to overrule that decision or, failing that, to curtail or restrict it in such a way that the Missouri statute would then be constitutional.

Oral argument was heard on April 26, while protesters on both sides of the issue organized long and noisy demonstrations outside the Court. Charles Fried, who was solicitor general in the Reagan administration and has now returned to the Harvard Law School faculty, defended in a brief and in oral argument the Bush administration’s claim that Roe v. Wade should now be discarded. Seventy-eight other briefs—more than in any previous case—were filed by a wide variety of concerned groups. These include, for example, briefs on various aspects of the litigation on behalf of 25 United States senators and 115 congressmen, the American Medical Association and other medical groups, 281 academic historians, 885 law professors, and a large number of anti-abortion groups. The Court is expected to hand down its decision before it adjourns in July, though it might wait until next year. Whatever decision it reaches will frustrate and anger millions of Americans.

Is the human fetus a person from the…

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