After 40 Years, It is Time to Declare Roe Wrong

40 years ago this week, Roe v. Wade became law.   It is largely believed by both "pro-life" and "pro-choice" groups to be a Supreme Court decision that "legalized" abortion.  That false, pervasive opinion has dominated the national scene for far too long.

The only thing Roe v. Wade did was muddy very clear waters.  Colonial women enjoyed the right to abort unplanned and unwanted pregnancies.  Indeed, abortion was a safer alternative than childbirth and it was an accepted practice.  The right to an abortion is inherent in the Ninth Amendment not created in the Fourteenth.  Roe is wrong not because it guaranteed safe and legal abortion, but because it failed to guarantee safe and legal abortion.

Abortion, a known and accepted practice since 1550 BCE,  became a crime in the Nineteenth Century after lobbying by the medical community as part of its quest to eliminate competition with midwifery. The medical community, however, was not as we may think of it today: there was no formal curriculum for medical school and no standardized testing until 1935.  While midwives shared knowledge gained over centuries, the folks who changed the abortion laws had gone to a semester or two of lectures and called themselves experts.   At common law, before a woman was "quick with child" (approximately 16-18 weeks pregnant), abortion was neither criminal nor abhorrent.  The folks who urged change did so primarily for paternalistic reasons (men must care for the frailty of women) and misogynistic reasons (the purpose of a woman, especially a married woman, was to bear and raise children), and financial reasons (midwives enjoyed, deservedly, much more trust and respect than physicians and this was one way doctors were able to corner a previously unattainable - and growing - market). 

In Massachusetts, over 200 years ago, when a single woman voluntarily sought a "draught or potion" to induce miscarriage and the man who impregnated her so provided it, he was tried and convicted of inducing abortion.  The conviction was overturned because (1) there was no evidence that any abortion occurred and (2) there was no evidence that the woman was "quick with child". Commonwealth v. Bangs, 9 Mass. 387 (1812).  An 1845 case relying on the judicial reasoning in Bangs declared outright that no common law offense existed for abortion prior to quickening.  Indeed, the decision expressed its opinion on the immorality of the procedure, but it denounced criminal sanctions when the woman consented and there was no evidence that she was quick with child.  Almost immediately after that case, at the behest of physicians (even then an influential bunch in Massachusetts), the general crime of abortion was born.   Interestingly, activists in the early 1970's were convicted of aiding and abetting abortions by facilitating safer options for women seeking termination of unplanned and unwanted pregnancies under that (still extant) law. In Massachusetts, abortion remains a felony to this day. 

But, what is shocking is that it was not the religious zealots or a Biblical concept of the beginning of life; the push to end the idea of quickening and life's nascence later than conception came from the physicians - the same ones who had essentially no scientific background and little education.  At the time this occurred, the majority of abortion seekers were white, middle class, married and Protestant.  Rather than develop better methods of birth control, the medical establishment dug in its heels against highly trained women providing abortions.  This opposition was not premised upon medical data or statistics on failed abortions or those resulting in death of the mother - it was based upon the idea that women who aborted ignored their duties of the marriage contract.  Doctors, in their own manifesto in 1871, averred that women should not be involved in public life and that by shirking maternal duties any woman seeking abortion was essentially letting her country down.

It was a time of great change; the Fifteenth Amendment had been ratified in 1870.  The Southern states were still occupied by Northern soldiers; and due to this occupation, African Americans exercised their voting rights for the first time.  Just months before the American Medical Association questioned the patriotism of women seeking abortions, Susan B. Anthony was arrested for trying to vote.  A few months after the AMA's declaration, Elizabeth Cady Stanton petitioned Congress on this pesky voting conundrum.  While the right to life community has sought to co-opt early feminists as anti-abortion activists, the reality could not be further from the truth.  With no offense intended to physicians today (although, really, they should acknowledge their complicity in the history), the truth is that the anti-abortion activists were those who were trying to make money; they had no concern for science.  The "life begins at conception" idea was fabricated by them, not religious doctrine, and sold as part of this unsavory bill of goods.  The push to criminalize abortion was a sham from the outset.  For an interesting and detailed article on law and the politics of abortion (where much of the above information was gleaned), click here.

The rise of the Nineteenth Century factions should have been beaten down by the other graces of the day: humanity, compassion, reform.  And if that was not enough, the Twentieth Century remnants  should have been met with logic, science and, eventually, the women's vote.  But, something went terribly awry.  Note in reading the full opinion of Roe v. Wade how Justice Blackmun rests on "medical" positions rather than law - the very same lunacy that started the criminalization of abortion was being sought to find a remedy.  Indeed, by failing to understand history, misconception implanted and grew into this destructive spawn, alive and well and destroying our country.  Rather than a reasoned approach to a simple legal question, the bizarre opinion widened a gulf that theretofore really did not exist.

Query whether the Court got it all manifestly wrong.  Abortion is not a protected right under the Fourteenth Amendment or any hidden, secret right to "privacy."  Abortion is a right retained by women, certainly those pregnant but not quick with child, that existed long before the Revolution and before the Constitution; it is one of the unenumerated rights which cannot be denied or disparaged under the Ninth Amendment.  It is curious that Justices White and Rehnquist, in their dissent from Roe v. Wade could find nothing in the language or the history of the Constitution to support the decision of the majority.  It is amazing what one cannot find when one chooses not to look.
Realistically, there was no prohibition to abortion before quickening recognized at the time of ratification.  The Ninth Amendment does not just kick the matter back to the states.  This is not part of the tradition of "states rights" and federalism, it is in the tradition of individual liberties which does not enjoy even state interference.  For the words of the Constitution to mean anything, the Ninth and the Tenth Amendments must mean different things.  The Ninth talks about rights of the people as individuals; the Tenth talks about the rights of the state to legislate.

There are serious and important issues facing this nation and the world, but criminalizing abortion - even talking about abortion - is not one of them.  Our confused nation insists on fighting wars we clearly cannot afford as we deny emergency assistance to our own citizens which we can.  Amongst other things, poverty, pollution, economic malaise, enforcement of civil rights and international kerfuffles that involve us whether we like it or not should take up most of the allotted time on the agenda.  Yet, folks talk about "limited government" as if it is 1789 and there are no roads or cars to put on them, no public water supplies, no air, water or noise pollution to control, no regulation of professional degrees or licenses, etc.  When the final vote was cast to ratify the Constitution, the Cabinet consisted of 4 posts (Secretary of State, Secretary of War, Secretary of the Treasury and Attorney General), 20% of the population was held in bondage BUT women had access to abortion without the interference by the state. 

Ensuring safe and legal access to abortions denies the government the opportunity to infringe upon liberty which sums up the notion of limited government in any event.  If America is to live up to even a portion of its promise, we need to start talking about things that matter and stop talking about things that do not.  40 years after nine men engaged in a bizarre and troubling decision residing in the then very popular Fourteenth Amendment when they could have settled matters in the Ninth - not as an issue for the states to infringe upon as they chose but as a matter that no government could deny or disparage, at least within the first 16-18 weeks of pregnancy which accounts for roughly 95% of all abortions in the United States - we are fighting harder and more divisively than we were when they rendered the decision. 

40 is a significant number to the Biblical crowd who now runs the country.  Moses was 40 when he first left Egypt.  40 years later, he returned to free the Israelites.  He toiled for 40 days on the Commandments; they wandered for 40 years - as the story goes - needlessly and due only to their own obstinance and idolotry - before reaching the land of milk and honey.  For 40 years we have been living with and yelling about and bullying each other over one well-intentioned but misbegotten decision.  In that time, we have gone from a fairly cohesive nation with relatively common values and reasonable politics to a polarized, contentious, maelstrom of inanity. 

Pro-life or pro-choice, Americans should realize that it all started with Roe v. Wade.  Unlike some other horrendous cases, it cannot be overturned; overturning Roe before righting the record on the Ninth Amendment would be devastating to women's health and women, generally, which is very bad for America.  Although the right to an abortion unequivocally existed at the time of this nation's founding, because women were not permitted to vote in order to protect that right, it went dormant.  In its place, a new but tenuous "right" emerged from the Court under the Fourteenth Amendment.  While it is hard to ratchet back rights once they are declared, what the Court giveth it is now intent upon taking away.  Once the Ninth Amendment right is secure, we can overturn Roe; we will have reached the Promised Land.