Roe v. Wade at 40
By Donald P. Shoemaker
[published with slight edits in the Los Alamitos-Seal Beach Patch, Jan. 22, 2013]
“You created my inmost being; you knit me together in my mother’s womb” (Psalm 139:13). For this scripture and other reasons I joined the “Right to Life” movement on January 22, 1973, the day “Roe v. Wade” was decided by the U.S. Supreme Court. As Roe v. Wade reaches its 40-year mark, I want to make three observations about this landmark decision.
First, the court’s Roe v. Wade decision was far more expansive than necessary to decide the case before it. It gave unlimited right to an abortion during the first trimester of pregnancy and allowed limits during the second trimester only as were “reasonably related to maternal health”. For the third trimester, the court noted “the potentiality of human life” (the unborn) and said states could regulate or ban abortion at this stage except if maternal “health” (broadly understood) was at risk.
Roe v. Wade grounded abortion rights on a right to privacy that it found in the “penumbra” (we might say, “surrounding glow”) of the Constitution rather than in the words of the Constitution itself.
Thus the court “legislated” (made law) rather than “judged” law. Justice Rehnquist in dissent reminded the court it should never “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied” (www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZD.html).
Second, public opinion has never been in accord with Roe v. Wade and is even less so now than in 1973. It also should fairly be said that public opinion doesn’t support the “Right to Life” side in all details either. Here are some samples of recent Gallup opinion polls (www.gallup.com/poll/1576/abortion.aspx).
• Today 50% say they are “pro-life” compared to 33% in 1996. In 1996, 56% claimed to be “pro-choice” and today that number is 41%.
• 71% support requiring parental notification if the woman is under 18.
• 62% support legal abortion during the first three months of pregnancy, but 71% oppose it during second three months and 86% in the last three months.
• Still, 52% do not want to see the U.S. Supreme Court overturn Roe v. Wade.
If we survey all the questions in the polls, we see most Americans are against most abortions and do not favor either an outright ban on abortions nor unqualified access to abortions.
Third, a new wrinkle has been added by the “contraception mandate” in what is popularly called “Obamacare”. Now the issue of religious liberty (the “free exercise” of religion guaranteed in the First Amendment) has been raised. In other words, the debate moves from what people should be free to do to what people and institutions with religion-based convictions can be forced to do.
“Obamacare” provides a very narrow and inadequate exemption for “houses of worship” but plans to force religious institutions (such as Christian colleges) to cover free access to contraception including, as feared by the U.S. Conference of Catholic Bishops, “drugs which can attack a developing unborn child before and after implantation in the mother’s womb” (www.usccb.org/news/2011/11-154.cfm). This major debate will certainly go to the Supreme Court.
The current administration is no friend of religious liberty in my opinion. Ironically, President Obama’s 2013 “Religious Freedom Day” proclamation said, “As we observe [on January 16] Religious Freedom Day…let us honor it by forever upholding our right to exercise our beliefs free from prejudice or persecution” (www.whitehouse.gov/the-press-office/2013/01/16/presidential-proclamation-religious-freedom-day).
Yes, Mr. President, let’s do that even if exercising religious liberty conflicts with your plans for expansive government control in matters previously thought to be better left to the consciences of individuals and the convictions of religious institutions.
Donald P. Shoemaker is Pastor Emeritus of Grace Community Church of Seal Beach. In 1980 he served as General Chairman of the National Right to Life Convention at the Anaheim Convention Center.