The 42nd anniversary of Roe v. Wade marks a bittersweet time of reflection for us as abortion rights activists.
Although Roe v. Wade is widely celebrated as a groundbreaking United States Supreme Court decision, it set a surprisingly weak precedent for abortion rights. In 1970, Jane Roe sued the district attorney of Dallas based on the premise that her inability to receive a legal abortion in the state of Texas violated her personal liberty. She claimed that this liberty was embodied in the due process clause of the 14th Amendment, and that the “penumbras” of the Bill of Rights recognized, to some extent, a right to sexual and reproductive privacy. The Supreme Court did not uphold this logic.
Instead, former Justice Harry Blackmun’s majority opinion ruled that before fetal viability, “the abortion decision … must be left to the medical judgment of the pregnant woman’s attending physician.” (“Viability” is the stage in pregnancy where a fetus is capable of surviving outside of the womb, usually 24 to 28 weeks, or in the Court’s language, the end of the second trimester.) This ruling was based on the Court’s interpretation of the First, Fourth, Fifth, Ninth and 14th Amendments, as well as precedents set in previous cases such as Griswold v. Connecticut that, together, established a right to privacy. However, after fetal viability, weighing a “compelling” interest in fetal life against the right to privacy is a decision left to individual states.
What are the problems here? To start, the focus on the right to privacy allowed the Court to construct a rationale that recognized the legality of first and second-trimester abortions but failed to provide for accessibility. Before Roe v. Wade, those who could afford to travel to one of the 17 states where abortion laws were liberalized and those who could achieve consent from a physician to receive abortions due to health concerns (the majority of whom were wealthy, white women) already had access to abortion. Thus, the Roe v. Wade decision did not sufficiently address the underlying issues of socioeconomic status (often stratified along racial lines) in abortion access because it hardly addressed the issues of accessibility and affordability.
The fact that the Supreme Court justified a woman’s right to limited bodily autonomy with a judicially created right to privacy and the right of physicians to practice medicine freely barring a compelling state interest — instead of following Roe’s initial argument that women possess a fundamental liberty in choosing whether to carry a pregnancy to term — is additionally problematic. If the Court had focused on recognizing the humanity and basic freedom of women, rather than the constitutional politics of privacy in healthcare, abortion rights in the United States might be much stronger today.
Instead, abortion rights have been under attack for decades. Roe v. Wade set a weak precedent, but it is the only national precedent that we have, and even this fragile foundation is being chipped away by today’s legislatures at both state and national levels. New bills are passed every year that place restrictions on abortion clinics and decrease funding opportunities, further reducing accessibility. For example, last year in Michigan, a law was passed that requires individuals who may become pregnant to buy an insurance rider specifically for abortion, effectively forcing planning for an unplanned pregnancy. In addition, the U.S. House of Representatives is debating legislation right now to ban abortion after 20 weeks of pregnancy, and to set nationally mandated abortion clinic restrictions that would place costly constraints on abortion providers, essentially reversing the basic premise of Roe v. Wade.
Forty-two years after Roe v. Wade, many people remain unable to secure safe, legal abortions due to economic constraints not accounted for in the decision. In effect, abortion is rendered a privilege, not a right. It is clear that the work of activists in reproductive freedom is as important now as ever.
Claire Taigman is an LSA sophomore.