The Politics of Abortion and Birth Control in Historical Perspective

By Donald T. Critchlow | Go to book overview

IAN MYLCHREEST


"Sound Law and Undoubtedly Good
Policy": Roe v. Wade in Comparative
Perspective

I

The Supreme Court changed abortion laws across the United States on 22 January 1973. Abortion had been illegal in many states, and in others a closely regulated medical procedure. In only four states did the law provide a broad right to terminate a pregnancy in the early months. Roe v. Wade declared that this right in the context of the doctor-patient relationship was protected by the Constitution's "right to privacy." 1 In practice, abortion became a matter of personal choice.

Policies akin to Roe v. Wade came to govern abortion in Britain and Australia between 1967 and 1973. By comparing these reforms, this essay offers a perspective beyond the constitutional argument over the right to privacy. Doctrine is important, but it confines discussion to the idiom of rights. In the English-speaking world, however, medical practice, the common-law background, and changed social attitudes underwrote abortion law reform. A comparison will draw out those common threads.

Critics of Roe have been legion. Justice Byron White's bitter dissent called it "an exercise of raw judicial power." 2 Alluding to the 1905 case that struck down minimum-wage laws, John Hart Ely denounced the decision as "Lochneresque" for enshrining the Court's policy values in constitutional law. 3 Robert Bork called the decision "a serious and wholly unjustifiable usurpation of state legislative authority." 4 In either form or substance, the critics argued, Roe amounted to judicial legislation.

Advocates of the right to privacy have consistently rejected this critique. They argue that Roe only gave substance to an unenumerated

This article was written with the support of a faculty development leave from the University of Nevada, Las Vegas.

-53-

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