On January 22, 1973, ABC Evening News anchor, Howard K. Smith, reported that the United States Supreme Court had struck down a Texas statute banning abortion, effectively legalizing the procedure across the United States. The court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment to the Constitution.
How the then existing state-by-state debate would have evolved if the SCOTUS had refused the case is of course not known. Instead the court demonstrated an impatience, and actively reached out for this case – which was actually “moot” – since the litigant Norma Leah McCorvey Nelson (“Jane Doe”), had already given birth to her child. The court rationalized accepting the case as an exception since it was capable of repetition, yet might evade future review.
The subsequent 7-2 decision explicitly rejected a fetus “right to life,” and ruled abortion a fundamental constitutional right that in the future could only be restricted by meeting the standard of “strict scrutiny.” However, it also ruled that the right to abortion is not unlimited, and established a three trimester framework stating during the first three months the mother only decides; after that until fetal viability, the “health of the mother” must be at risk for an abortion; and after viability, the state could prohibit abortion unless “the life of the mother” was at risk.
United States Abortion Law As A Result of Democratic Process (Before Roe)
Prior to Roe, abortion had been a source of debate in the various states for years. Laws already existed in various states and were being considered in others.
At the time, Texas was one of only twenty-nine states, in which abortion was still completely illegal.
- Five states had approved abortion without restriction – California, Hawaii, Maine, New York and Washington.
- Sixteen additional states allowed abortion – but with a variety of restrictions – Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Massachusetts, Maryland, Mississippi, New Mexico, North Carolina, Oregon, South Carolina, Virginia.
The two most common being waiting periods of from ten to twenty-four weeks; and/or a requirement that the mother meet with a counselor to reaffirm her decision before the procedure took place.
Democrats imply that without what some called an “activist court” there would be an absence of abortion rights in the United States. However, the evolving state-by-state resolution noted above disproves that argument.
How abortion laws were decided in Western Europe without court take-overs is also instructive, and raises doubts about the current Democrat party hysteria should the issue be returned to the various states.
Current EU Abortion Laws As A Result of Democratic Process
The European Union (EU) consists of twenty-eight sovereign nations, which most agree that as a group share the values and cultural heritage of the United States more than do most other states. During the 1970’s the issue of abortion existed in these countries as it did in the United States.
What is most different is how the issue was resolved. In these nations, every abortion law resolution was the result of a majority vote during a referendum, or the majority vote of the people’s elected representative body (usually a parliament).
The following are the current results of those European democratic processes:
- Abortion is completely banned in only one country – Malta (population 430,000).
- Abortion is banned in only two countries except when birth threatens the mother’s life, and in cases of rape or incest – Poland and Cyprus.
- Abortion is legal except for a modest restriction during early gestation period in three countries – Ireland, the United Kingdom (during Brexit), and Finland.
- Abortion is legal without material restriction in the other twenty-two countries – Austria, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden.
Conclusions From History
Anger at the time of the passage of Roe was far more vigorous in the United Sates than were the various EU abortion laws passed by democratic process. That anger has continued for forty-five years. It’s impossible not to conclude that the votes of fellow citizens or elected representatives are seen as more legitimate than the vote of a seven cloistered SCOTUS justices.
Two conclusions from these data seem valid:
- Should the Roe decision be overturned by the current or a future SCOTUS, a return of the decision to the various states is not either a radical or unfair process, or the automatic end of a “right to choose” that the Democrats are hysterically claiming.
- A democratic decision process by fellow citizens would go a long way in removing Roe vs. Wade from the flag waving confrontation that it has been in our country for almost half a century.