The Tragic Failure of Roe V. Wade: Why Abortion Should Be Returned to the States
Forsythe, Clarke D., Presser, Stephen B., Texas Review of Law & Politics
"When we are concerned with extremely sensitive issues, such as the one involved here [abortion], 'the appropriate forum for their resolution in a democracy is the legislature.'"1
For the past thirty-three years, the United States Supreme Court has acted as the national abortion control board,2 making it difficult for states to exercise effective authority to regulate abortion, even when needed to protect the lives of women seeking abortions. When, for example, Lou Anne Herron entered the AZ Women's Clinic in Phoenix for an abortion on April 17, 1998, she did not know that Dr. John Biskind, the clinic operator, faced a hearing before the Arizona Board of Medical Examiners in January 1996, after another woman died in February 1995 following an abortion in his clinic. During Ms. Herron's abortion, Dr. Biskind lacerated her uterus. Before her condition was stabilized, he left the clinic to visit his tailor, leaving Ms. Herron in the care of improperly trained medical assistants. Ms. Herron bled to death. Dr. Biskind was subsequently convicted of manslaughter.3 At the time, there were about twenty abortion clinics in Arizona, but only half were licensed by the state health department. In response to Herron's death, the Arizona legislature passed modest regulations to prevent further deaths and injuries.4 The regulations were immediately challenged by abortion clinics and an injunction was issued against their enforcement.5 Seven years after Lou Anne Herron's death, Arizona's regulations are still enjoined by federal courts.6
In 1973, the Supreme Court, in Roe v. Wade7 and Doe v. Bolton,8 discovered a constitutional right to abortion in the Fourteenth Amendment and overturned the abortion laws of all fifty states. The Supreme Court empowered federal courts to strike down any state or federal abortion law prohibiting or regulating abortions. Federal courts have imposed the Court's regime in every state and county.9 No state can effectively prohibit any abortion, at any time of pregnancy, for any reason.10 This was made clear in 2000 in Stenberg v. Carhart,11 when the Supreme Court invalidated the laws of Nebraska and twenty-nine other states prohibiting a particularly grisly procedure called "partialbirth abortion." And it was reaffirmed in 2004 when federal courts in California, Nebraska, and New York immediately enjoined the federal Partial Birth Abortion Ban Act of 2003.12
A wealth of scholarship has criticized Roe and Doe for ignoring the historic role of the protection of human life embodied in Anglo-American law for centuries and recognized by the Declaration of Independence itself.13 In this piece we set forth four major legal and social reasons for ending the Court's role as the national abortion control board and returning the abortion issue to popular control at the state level.
First, the Court's original decisions in Roe and Doe were unconstitutional usurpations of self-government, with no legitimate basis in substantive due process or constitutional law.14
Second, medical and sociological data from the last thirty-three years demonstrate that the Court's new sociological rationale for the abortion right in Planned Parenthood of Southeastern Pennsylvania v. Casey15-the "reliance interests" of women in abortion-has little basis in fact. Such reliance has, instead, resulted in significant physical and psychological damage to women.16 Though some empirical data on the risks of elective abortion existed in 1972,17 the Court in Roe largely ignored that data; it generally referred to vague risks, dismissed them with the assurance that the states would regulate, and then established strict rules that prevented the states from such regulation. This is one major reason why the risks are not widely known today.18 In addition to the medical and health data, econometric analysis of the impact of abortion policy on individual behavior since Roe has given us a fuller picture of the impact of the legalization of abortion and of the Court's policymaking. …