Everyone reading this is quite familiar with the landmark US Supreme Court decision of January 1973, Roe vs. Wade. In retrospect, intelligent observers are quite aware that it and its companion case, Doe vs. Bolton, legalized abortion through the entire nine months of pregnancy in all fifty states and for literally any reason at all. This was not immediately apparent but slowly unfolded itself through a series of subsequent decisions. Let’s give some detail to these decisions:
Roe vs. Wade instituted the right to abortion under a trimester scheme. The decision to have an abortion during the first three months was “left to the woman and her doctor.” During the second trimester, the decision could be made only “to protect the woman’s health.” During the third trimester, steps could be taken to protect fetal life. However, the accompanying decision, Doe vs. Bolton, went much further and struck down literally all restrictions on abortion. It effectively legalized abortion-on-demand for nine months.
This is evident to us all now, but it was not exactly then. One question jumped out, “What of the husband’s right to protect the life of his unborn child?” This was decided in July of 1976 in Planned Parenthood vs. Danforth. The Court ruled that the husband of a pregnant woman does not have “veto power” over the abortion decision. The same restriction applied to the parents of an unmarried pregnant girl. The Court also ruled that laws to prohibit the salt poisoning (late-term) type of abortion were unconstitutional.
In the January 1979 Colautti vs. Franklin decision, the Court gave physicians broad discretion in determining the time of “fetal viability” and said that a state may protect a fetus that has reached viability, but that determination of viability is completely up to the physician, i.e. abortionist. This effectively ruled out any protection for late-term unborn babies.
After several years and conflicting lower court decisions, in June 1980, the Harris vs. McRae decision ruled that the government, federal or state, has no legal obligation to pay for “medically necessary” abortions. This meant all abortions, except those to save the life of the mother. This specifically meant that the Hyde Amendment, preventing federal funds being used for abortions, was now constitutional.
The Court ruled in H.L. vs. Matheson during 1981 that it was constitutional for a state to require parents of a minor daughter be notified of her decision to abort. The parents, however, had no right to protect the life of the child over their daughter’s abortion decision.
In 1983, in the City of Akron vs. Akron Center for Reproductive Health, the Court ruled that informed consent for the pregnant woman was not required, that mandatory hospitalization for second-trimester abortions was unconstitutional and requiring “humane disposal of fetal remains” was unconstitutional.
In 1986, Thornburgh vs. American College of Ob and Gyn ruled laws requiring informed consent were unconstitutional.
The Court took an ever so slight turn to the right in 1989. Its Webster vs. Reproductive Health Services ruling slightly broadened restrictions on taxes to pay for abortion. It also ruled that an abortionist must use tests to determine viability rather than merely using his own clinical judgment.
In June 1992, there was great hope that Roe vs. Wade would be reversed. Those hopes were dashed in the Planned Parenthood vs. Casey decision; however, some reversals did occur. Informed consent was no longer unconstitutional, and parental notification of a minor’s abortion and twenty-four hour waiting periods were now permitted. The trimester scheme was abandoned and the Court now spoke of an “undue burden” test. Lastly, spousal notification remained unconstitutional.
1995 was a harbinger of what was to come when the first partial-birth abortion ban, passed in Ohio, was struck down. In 1996, a reformulated ban was passed by Congress and vetoed by President Clinton. A second attempt was also vetoed a few years later.
During June 2000, in Stenberg vs. Carhart, the Supreme Court struck down state partial-birth abortion bans in Nebraska and Wisconsin.
Then, finally on April 18, 2007, the US Supreme Court upheld a federal partial-birth abortion ban when it voted 5 to 4 in Gonzales vs. Carhart.
The history of the Supreme Court’s rulings on abortion has been something of a roller coaster. Starting with the pair of ugly decisions, Roe and Doe, from a pro-life standpoint, this went downhill until it hit bottom with the Akron decision ruling that even humane disposal of fetal remains was unconstitutional. Since then it has slowly moved back uphill, particularly through two main decisions: Casey gave states the right to enact peripheral regulatory laws. With this, then came women’s right to know laws, parental notification and consent, protection for the newly born infant, medical and hygienic inspection of abortion facilities, requirement for ultrasound and others. With these judicial openings, as many as two-thirds of our states have passed some or most of these protective laws. The result has been the decrease in the total number of abortions in the US from 1.6 to 1.2 million lives annually, and this in the face of an enlarging population base.
The latest move in our direction has been the recent Gonzales decision forbidding partial-birth abortion. The deciding vote in this 5 to 4 decision was by Justice Anthony Kennedy, who had been on the pro-abortion side prior to this. It can legitimately be debated that this decision may not save many unborn babies because it did not forbid late abortion by other techniques. Nevertheless, it marks a remarkable turn in our direction in many ways. Note that in all previous decisions the uterine occupant had been referred to as “potential life.” That was yesterday. This life is now openly acknowledged. Post-abortion stress is discussed as a reality. The actual mechanism of the destruction of the child in utero is described in detail for the first time. As one reads through this decision, we are almost surprised at the end to find that Justice Kennedy still allows late-term abortion, for in many ways it reads like it was written by one of us.
Is this a move by Justice Kennedy in our direction? It certainly seems to be so. Will he move further in our direction on the next major decision? We hope and pray that is the case.
Among those optimists are the pro-lifers in South Dakota. Their proposed law, if approved in November, would eliminate over 99% of all abortions, leaving legal only those from forcible rape and incest, and a very narrowly drawn physical health exception along with the life of the mother. They believe that such a statute might get Justice Kennedy’s approval, and if that were to transpire, Roe vs. Wade will in effect be reversed.
One thing seems certain, that we will never win this in one, single stroke abolishing all abortions permanently. We will achieve victory by further incremental steps; at least your author is one who is convinced of this.
If a pro-abortion presidential candidate wins in November, all hope for further pro-life progress in our nation through Congress and the Court would be lost. This will be true for the next four and possibly eight years, because almost certainly there will be two and possibly more vacancies on the Supreme Court. As you can see from the list of their ages, the two most likely to retire are pro-abortion, but not too far behind them come our friends.
Pro-Life & Pro-Abortion Justices
John Roberts 53 (pro-life)
Samuel Alito 58 (pro-life)
Clarence Thomas 59 (pro-life)
David Souter 68 (pro-abortion)
Stephen Breyer 69 (pro-abortion)
Anthony Kennedy 71 (swing vote)
Antonin Scalia 72 (pro-life)
Ruth Bader Ginsburg 75 (pro-abortion)
John Paul Stevens 88 (pro-abortion)
On the other hand, if a pro-life presidential candidate is elected, and if true constitutional constructionists are appointed to fill likely vacancies, then we will have a clear anti-Roe majority and it will be reversed. This will return the issue to the states and remove the federal judiciary from the mix. Space here does not allow any prediction as to which state would do what, but within fairly short order, one-third of the states would then protect unborn babies from conception or nearly so. One-third of the states would sharply limit abortions, but probably allow them for some reasons, or up until a certain age. Perhaps the other third would permit abortion-on-demand. The net result of this, however, would be the saving of millions of lives.
Then would begin the next long phase. The people of this nation would slowly become accustomed to the fact that abortion can be, and in many areas is, prohibited, and will realize that the sky didn’t fall when abortion was forbidden. They will realize once again that we can welcome unborn babies back into our lives. Furthermore, of the remaining pro-abortion states, we will then see their numbers slowly chipped away. We will likely see, in one particular state, the Speaker of the House, who had been holding up pro-life legislation be replaced, and in the next legislative session that state will go pro-life. In another, a pro-abortion majority in its legislature will flip on this issue and that state will go pro-life. This trend will then continue until less than one-fourth of the states still allow abortion-on-demand.
When this greatly anticipated day arrives, we will finally be able to put through the US Congress a Human Life Amendment to protect all innocent human life and have it ratified by three fourths of the states. Your author and his wife will certainly not be alive to witness this event, but many of you reading this will be here when this great day occurs. Until that happens, we, and those who follow behind us, must continue the journey.