"Like a Withered Tree, Stripped of Its Foliage": What the Roe Court Missed and Why It Matters

By Ehrlich, J. Shoshanna | Columbia Journal of Gender and Law, Winter 2018 | Go to article overview

"Like a Withered Tree, Stripped of Its Foliage": What the Roe Court Missed and Why It Matters


Ehrlich, J. Shoshanna, Columbia Journal of Gender and Law


INTRODUCTION

The Legislature finds that pregnant women contemplating the termination of their right to their relationship with their unborn children ... are faced with making a profound decision most often under stress and pressures ... and that there exists a need for special protection of the rights of such pregnant women.... (1)

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The [Partial Birth Abortion] Act recognizes this reality ... it seems unexceptional to conclude that some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow. (2)

**********

In 1973 in the landmark case of Roe v. Wade, the Supreme Court faced a constitutional challenge to a criminal abortion statute from the state of Texas, which, like the laws in effect in a majority of states, prohibited abortion unless a doctor determined the procedure was necessary to save the life of a pregnant woman. (3) Relying on a line of cases dating back to 1923 in which it had recognized a constitutional right of privacy with regard to "personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty'"-- such as the choice of a marriage partner, the use of contraceptives, and the raising of one's children--the Court held that the "Fourteenth Amendment's concept of personal liberty and restrictions upon state action ... is broad enough to encompass a woman's decision whether or not to terminate a pregnancy." (4)

In locating the right to abortion within this constitutional zone of privacy, the Roe Court focused on "[t]he detriment that the State would impose upon the pregnant woman by denying this choice." (5) Of particular relevance in the present context, in addition to identifying the risk of "medically diagnosable" harms, the Court zeroed in on the potential psychological and emotional risks of carrying an unwanted pregnancy to term:

   Maternity, or additional offspring, may force upon the woman a
   distressful life and future. Psychological harm may be imminent.
   Mental and physical health may be taxed by childcare. There is also
   the distress, for all concerned, associated with the unwanted
   child, and there is the problem of bringing a child into a family
   already unable psychologically and otherwise, to care for it. In
   other cases, as in this one, the additional difficulties and stigma
   of unwed motherhood may be involved. (6)

In short, as seen by the Court, the primary harm of a strict criminal antiabortion regime was its power to foist motherhood upon a woman who was not ready or able to assume responsibility for a child at a particular moment in her life.

However sympathetic the Court may have been to the plight of a woman facing an unplanned pregnancy, it also made clear that the right to abortion was not absolute and must be "considered against important [state] interests in regulation"; namely, protecting the health of the pregnant woman and the potentiality of life. (7) Aware of the "sensitive and emotional nature" of this balancing task given the "vigorous opposing views ... and the deep and seemingly absolute convictions that the subject [of abortion] inspires," the Court committed itself to "resolv[ing] the issue by constitutional measurement, free of emotion and predilection." (8)

Reflecting its "earnest" determination to resolve the case in this manner, at the outset of the opinion, the Court announced its intention to inquire into and "place some emphasis upon medical and medical-legal history and what that history reveals about man's attitudes towards the abortion procedure ..." (9) In its review of the history behind the "criminal abortion laws in effect in a majority of states today," the Court stressed that these laws were "of relatively recent vintage" having derived from "statutory changes effected, for the most part, in the latter half of the 19th century," as the result of an active campaign by medical professionals. …

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