This is the first of a two-part series on the critically important civil rights ruling that has allowed women to realize our right to freedom and privacy in our country. Because of the decision in Roe v. Wade by the U.S. Supreme Court on January 22nd, 1973, women have been able to control when and with whom to bear a child. In today’s article, we will focus primarily on the history of Roe and its erosion over the past 34 years, led by an ever-right turning Supreme Court, culminating in the Bush court that exists today.
Monday, January 22nd marks the 34th anniversary of Roe v. Wade which has been for generations of women our Emancipation Proclamation. Under the historic Supreme Court ruling in 1973 women now have a constitutionally protected right, under the umbrella of the rights of liberty and privacy, to terminate an unwanted pregnancy. The Court said that the U.S. Constitution’s right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”(Roe v. Wade, 1973). To reach this conclusion, the court drew on a series of case law that established that the government does not have the right to interfere with personal decisions regarding birth-control, procreation and other aspects of marriage and family life.
Instead of ending the debate, however, this assertion and confirmation of women having the freedom and right to decide our reproductive destiny became the flash-point for a political movement that, hopefully, is losing its political influence. It is, of course, naive and foolish to think that Roe will no longer be threatened and is not at risk in the U.S. Supreme Court or various states in our country. To the contrary. With the spineless response of the United States Senate to the appointment of Samuel Alito (leaving John Roberts and his confirmation as the Chief Justice out of the equation just for purposes of discussion), we will see an already threatened Roe further undermined within the next few months or years—absent a miracle). Without so much as a public commitment to preserving Roe, Alito and the neo-conservative judges who have been trying to overturn Roe since their elevation to the highest court in the land—led by Anton Scalia with Clarence Thomas in tow– may now have that opportunity. Of course, the Court won’t admit it’s intention to do just that, but after the Casey v. Pennsylvania decision in 1992, Roe is pretty much a shell of its former self. Under that ruling, numerous hurdles have been imposed on women, thus reducing accessibility to abortions, primarily for our neediest and most under-served women.
SInce it’s pronouncement 34 years ago, Roe has been attacked by both state and federal lawmakers spurred on by well-organized zealous religious and ideological forces. Although many of these laws have been struck down as a violation of a woman’s fundamental right to privacy and liberty, many have been upheld, thus eroding the rights of low-income women and young women in particular, by limiting funding for abortion services and requiring young women to obtain parental consent before terminating an unwanted pregnancy. As a result of the Court upholding these conditions and limits, the exercise of this fundamental right is less available to the young and those who can’t afford to pay for it.
But the biggest erosion to date (we’re only waiting for the current challenge to come down from on-high, now that Alito has replaced the more but not-so-moderate Sandra Day O’Connor), occurred with the court’s undermining reproductive choice in the case of Casey v. Pennsylvania. Although the media heralded this case as O’Connor working a brilliant compromise by affirming that a woman has the right to obtain an abortion in the first-trimester or if her life or health is at risk , the Casey decision went on to establish a major hurdle to that right. Now laws can be upheld that create various limits on woman’s access so long as they don’t create a “substantial burden”in the exercise of that right– whatever that means–which is, of course, the point. This ambiguity allows states to get away with such impediments as requiring women to come back several times for “education” and review of their decision before obtaining an abortion. These conditions often create hardships and substantial delays thus creating a greater health risk in the process. In other words, its OK to create obstacles to the exercise of constitutional rights, so long as they’re not “substantial”. So much for one’s right to choice.
We are currently awaiting the Supreme Court’s ruling in two cases that will portend Roe’s future viability. On November 8, 2006, the Court heard oral argument in the cases of Gonzales v.Carhart and Gonzales v.Planned Parenthood Federation of America, Inc. Both cases ask the Supreme Court to ignore its prior rulings (now that well-known anti-choice justice Samuel Alito has replaced O’Connor) and uphold the Federal Abortion Ban Act of 2003 which creates no exemption from the blanket ban on abortions even to save the health or life of the mother!
This legislation from the now discredited Republican Congress (and President who signed it), was a direct challenge to prior Supreme Court efforts to preserve at least the portion of Roe that protects our health and safety.
The fact is that the overwhelming number of Americans want sensible reproductive health policies in this country.
We want to reduce the need for abortions, not limit access.
The way to reduce the need is by providing honest and realistic sex education as well as access to contraceptives and family planning services. But with the extremists really interested in regulating sexual conduct, not protecting against unwanted pregnancy, the notion of education and availability of birth control is not even up for discussion by the anti-choice forces who have insinuated their “morality” into the political debate.
So as we celebrate our Emancipation Proclamation, let us not be fooled by the misleading characterizations we can expect by the Supreme Court and reinforced by the complicit media in claiming that Roe continues to provide for this important and fundamental right of choice. We must remember that a right without the ability to access that right is no right at all. We must insists upon the truth being told when the decision comes down this spring and we must insist that both the spirit and letter of the law giving us control over our lives and keeping the government out of our bedrooms and bodies is preserved. We celebrate the anniversary of Roe, but we must remain committed to our privacy, our health, our freedom and our future. For the past 34 years, American women have been able to safely make those most personal and private decisions ourselves. We must protect that right for the next generations and reaffirm that we will not go back. We owe it to our sisters, our daughters, and ourselves.
We must remain vigiliant and firm in our resolve. Roe v. Wade must live on in our laws and not just our hearts.