by Cathleen A. Cleaver, Esq.
January 18, 2002
Roe v. Wade is 29 years old – older than most who are joining the pro-life movement today. Yet even among those who know that it was a bad decision, how many of us really know what it said? It's appropriate, at this time of year, to review its shaky foundation.
The decision, drafted by Justice Blackmun, began by presenting a dubious historical account of abortion. It was important for the Court to establish that abortion was not historically regarded as a bad thing, to avoid the formidable task of explaining why an historical wrong should suddenly be a right!
First, the Court swept aside laws against abortion in the Persian Empire and opposition to abortion from obstetricians in ancient Greece. It gave short shrift to the Hippocratic Oath, which rejected abortion. So much for 2000 years of medical ethics! The American Medical Association was the next stop on this historical tour. Historically, the AMA "deplored" abortion, calling it "unwarrantable destruction of human life." But that was of no moment to Justice Blackmun, who cited the AMA's 1970 reversal on abortion as the only relevant point.
Finally, the Court had to face the fact that all the states had restricted abortion by statutory or common law. But it dismissed those laws in one fell swoop, claiming against all evidence that 19th century abortion laws existed only to protect women from what was then a dangerous surgical procedure. Since early U.S. abortion laws had nothing to do with, well, the abortion issue, they could provide no guidance to the Court.
Now, the Court needed only to find a place for it in the Constitution. So it tucked it into a right to privacy, which also doesn't exist in the Constitution! This was an invisible amendment made by the Court, rather than by the people through the amendment process; since it was defined in no text, it was easily expanded to include abortion.
"But wait!" you say, "what about the right to life that is in the Constitution?" The Court said that there is no "consensus" about when life begins, and therefore it should be a matter of personal opinion – the unborn have no constitutional rights of their own. A trimester system was devised, where, in theory, the woman's right to abortion and the state's right to regulate it could shift according to the stage of pregnancy. But this game was rigged: on the same day as Roe, the Court decided Doe v. Bolton, which said that abortions sought for health reasons must be allowed even in the final weeks. Doe defined "health" to mean virtually anything – "all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient" – rendering the new abortion right virtually limitless.
As we mark another anniversary of Roe v. Wade, let's remember that the "right" it created was as much without foundation as it is without limit. We protest the decision with confidence, knowing that the truth will ultimately prevail.
Cathleen Cleaver is Director for Planning and Information at the Secretariat for Pro-Life Activities, United States Conference of Catholic Bishops.