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Since Roe v. Wade:
American Public Opinion and Law on Abortion

(Released January 2005)

 
  by Sandra S. Stanton  

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As voters emerged from their polling places on November 2, 2004, the media sought to determine who Americans had selected to lead our country—Republican Party incumbent President George W. Bush or Democratic Party nominee Senator John Kerry—and why. Were voters concerned about the war in Iraq, the economy, unemployment, the environment, world opinion of US foreign policy? Yes, all of those issues, to varying degrees and in various ways, but these were not all. According to the media, a surprising number of Americans said they wanted to have a Republican President and Congress because they felt the Republic Party best represented their concerns about moral issues, high among them, the practice of abortion.

Thirty-one years after the US Supreme Court decided, in the case of Roe v. Wade (410 U.S. 113 [1973]), that the right to privacy extends to a woman's decision of whether or not to have an abortion, many Americans still feel that the Roe v. Wade decision was morally wrong and hope that it can be overturned. This hope is well within the realm of possibility, because it is likely that two Supreme Court judges will soon retire and-in view of the Republican Party platform's pro-life plank1 and President Bush's publicly expressed personal opposition to abortion-will most likely be replaced by judges with more conservative views about abortion.

The current judges have served together for a decade. However, Chief Justice Rehnquist, now ill with cancer, is expected to step down any time. Sandra Day O'Connor, age 74, has indicated that she too may retire. Ruth Bader Ginsberg, also over 70, has suffered cancer and might consider retirement soon, as might the oldest justice (at 84), John Paul Stevens. Ginsberg, appointed by President Clinton in 1993, and Stevens have always stood by Roe v. Wade, as has O'Connor, although she was appointed by Republican President Ronald Reagan. For some years, the Court rulings on abortion have been narrowly decided, with O'Connor often tipping the balance in favor of upholding Roe. But any new justices appointed by President Bush would likely tip that balance the other way.

Other Americans, however, do not want Roe v. Wade overturned. Many of them also have a strong moral belief—that a woman should not be forced, by her country's laws banning abortion, to bear a child if, for what she believes is good reason, she does not wish to do so. Bearing a child is a private or family decision, and that privacy was upheld by the Supreme Court's 1973 decision.2

This paper addresses these opposing views about legal abortion in the United States. Following a historical review of US Supreme Court decisions on reproductive issues since Roe v. Wade and related state and federal legislation and court decisions, two major questions are considered:

What factors create such divergence in public opinion regarding abortion—religious morality, personal morality or choice, socioeconomic status, politics, ethnicity or race, the media, voluminous interest groups? What is the consensus of public opinion on abortion, and is it reflected in state and federal law and court decisions?

US Supreme Court decisions relating to federal and state laws on abortion

The content of Roe v. Wade and other cases, as summarized in "U.S. Supreme Court Decisions Concerning Reproductive Rights 1965-2003," is examined historically. In Roe, by a vote of 7-2, the Court invalidated a Texas law prohibiting abortions not necessary to save the woman's life and decided that "any governmental interference with [a woman's] right is subject to strict judicial scrutiny." It did recognize a state's right to "regulate the abortion procedure after the first trimester of pregnancy in ways necessary to promote women's health" and stated that "after the point of fetal viability—approximately 24 to 28 weeks—a state may, to protect the potential life of the fetus, prohibit abortions not necessary to preserve the woman's life or health."

In the following decade, the Court's decisions, though mixed, upheld the essence of Roe v. Wade. In Doe v. Bolton (1973), it invalidated provisions of a Georgia law restraining abortion through the use of expensive and unnecessary regulations. In Connecticut v. Menillo (1975), however, it "upheld the use of a Connecticut statute that prohibited the performance of abortion [but in this case it was] to prosecute a non-physician." In a 1976 case, Planned Parenthood of Central Missouri v. Danforth, it invalidated a provision of a Missouri statute that "required a married woman to obtain the consent of her husband prior to an abortion." With regard to the use of public funds, however, in the 1980 case of Harris v. McRae, by "a vote of 5-4, the Court upheld the Hyde amendment, which prohibits the use of federal funds for abortions not necessary to preserve the woman's life" and held that "states that participate in the Medicaid program are not required by Title XIX of the Social Security Act to fund medically necessary abortions for which federal funds are available under the Hyde amendment." It also upheld several states' rulings against public funding for abortion.

The tide shifted somewhat in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). While, by a vote of 5-4, the Court once again affirmed "the essential holding" of Roe v. Wade, it did uphold a provision of the Pennsylvania Abortion Control Act that required "physicians to provide patients with anti-abortion information to discourage women from obtaining abortions." More important is the fact that the four opposing views came from Justices Rehnquist, Scalia, Thomas, and White, who voted to "uphold the challenged (state) provisions and overturn Roe completely, stating that it was wrongly decided and the Constitution does not protect the right to choose." Only Blackman and Stevens voted to continue to "protect the right to choose as a fundamental right under Roe by subjecting state restrictions to strict scrutiny."3

Hyman Rodman noted that the Supreme Court had begun to "indicate a greater degree of willingness to accept state restrictions on a woman's right to an abortion," one of the major restrictions being a requirement for "parental involvement for minors' abortions."4 Another restriction is the inadequate provision of abortion services, creating a problem of access for some women. Susan Mezey et al describe an Illinois statute of this nature.5 A summary paper produced by NARAL-Pro-Choice America, "Roe v. Wade and the Right to Choose," stated that since the Supreme Court's 2002 ruling in Steinberg v. Carhart against Nebraska's ban on safe, common abortion procedures, legislators in that and other states have been "steadily passing legislation as groundwork for a Supreme Court case that could reverse Roe v. Wade; since 1995, states have enacted 383 anti-choice measures."6

Not all state and federal courts have been willing to accept anti-abortion measures. In response to a complaint filed in the U.S. District Court in Nebraska by four physicians, headed by Dr. LeRoy Carhart, against U.S. Attorney General, Judge Richard G. Kopf, on September 8, 2004, struck down the federal abortion ban passed by Congress in October 2003. A Planned Parenthood news brief lauds his decision and notes that it was the third federal court ruling against the ban, described by another district court judge, Phyllis J. Hamilton, as "blatantly unconstitutional."7

The decisions of the 1990s came against a backdrop of continuing social protest. Anti-abortionists' acts against reproductive health (including abortion) clinics and their medical staff and patients became more frequent and violent. The Supreme Court generally supported states' efforts, by the use of buffer zones and other means, to protect the clinics and those working in or attending them, but the fact that this kind of violence is occurring indicates the view of hard opposition to abortion held by some Americans, especially those who are willing to commit a crime to prevent what they consider a crime-the abortion of an unborn child.

What has influenced the diversity in Americans' positions on abortion?

The impact of religion on abortion views boils down to the issue of whether the deliberate abortion of a fetus amounts to the killing of a human being. Since killing a human being is considered, in most cases, not only a religious sin, but also a secular crime, this issue evolves to that of when the fetus becomes a human being. While some sort of biological life obviously begins with conception, many do not consider the fertilized egg a human being, but they differ on when fetal viability and personhood are attained. The general consensus among those in favor of legal abortion is that fetal viability is not an issue until after the first trimester of pregnancy, since not until after that time can movement be felt within the womb and can the fetus have any chance to survive on its own. This notion has ancient historical roots. Aristotle (in Politics) wrote that abortion must be performed before the child has developed sensation and life; after that time, it is unlawful. Jeffrey L. Lenow suggests that medico-legal conflicts centered around personhood may arise with new technologies for fetal surgery and explores the "legal rights of unborn 'persons' with a particular emphasis on the role of fetal viability in determining those rights." Lenow goes on to recommend reforms to "the current method of resolving the critical question of when a fetus becomes viable."8 Clearly, for those who favor legal abortion under restricted circumstances, fetal viability is the crux of the matter, and resolution of this issue will not be an easy task.

Many Americans, however, feel that a human being exists from the time of conception. Protopriest Victor Potapov states that "the Orthodox Church and Roman Catholic and some other Christian confessions have a consistent answer. Conception is a sacred gift of God; anyone who encroaches on this gift, anyone who destroys it, is criminally breaking God's Law violating the Sixth Commandment of God's Law, Thou shalt not kill."9

How this belief evolved is explained by Robert Munday, who explores writings of both the pre-Christian and early Christian eras. He notes that physicians of ancient Greece wrote of various means to induce abortion, including pessaries and plant potions used as "abortifacients," and describes tools and procedures used for surgical abortion. The reasoning of Aristotle, Plato, and other ancient philosophers in supporting abortion came from their view that the individual existed for the state, and that no individual right, even the right to life, was absolute. Munday continues by showing how this perspective was supplanted by the Judeo-Christian view, which became the ethical foundation of Western civilization. Although the Talmud does not mention non-therapeutic abortion, its practice was so unacceptable in early Jewish thought that that there probably was no need to explicitly prohibit it. Munday then quotes several early Christian works: the Didache contended that murderers included those who were "killers of the child, who abort the mold (plasma) of God"; the Epistle of Barnabus declared: "Never do away with the unborn child, nor destroy it after its birth"; and Clement of Alexandria (c. 150-215 AD) summarized the Christian ethical view-that abortion is taking a life that has been ordained by God.10 Thus, it is understandable that true adherents of the confessions most directly descended from the early Christian Church cannot condone abortion. In fact, religion in general is the strongest force against the right to abortion.

However, there are members of these and other churches who cannot accept religious rulings against abortion—and even contraception. Larry R. Peters argues that the (generally agreed upon) liberalizing effect of education on abortion views differs according to religious confessions, being "weakest among conservative Protestants and Catholics, intermediate among moderate Protestants, and strongest among liberal Protestants and Jews."11 David Mills writes that "An Episcopalian is always being told about our responsibility to the marginalized and the need to listen to their voices," but you will not find pro-lifers of marginalized groups "asked to join Episcopal committees where their voices might be heard; theirs is not a voice that 'needs to be heard', because they do not say what is wanted to be heard."12 Not even all clergy are in agreement about abortion. Sue E. S. Crawford et al, using data from in-depth interviews with 31 women clergy serving in religions open to theological liberalism, came to the conclusion that "gender affects their political choices especially on issues like discrimination and abortion," inclining them, more than male clergy, toward more liberal choices.13 When William Cooper used 1996 General Social Survey data to examine the effect of religion on opinions about abortion, he found "no consistent patterns for religious variables," though adding some demographic and opinion variables changed the picture.14 So it appears that the religious influence against abortion may be tempered by education, the views of more liberal religions, and social and gender factors.

Support for the right to abortion can be found among both church-goers and the religiously unaffiliated, and among both men and women. Many of these supporters have as strong a moral conviction that a woman should have the human and civil right to control her own body as opponents have that the rights of the fetus take priority. Highlights of NARAL Pro-Choice America's position include the following: "Granting an embryo or fetus personhood undermines Roe v. Wade v. Wade. So-called 'fetal protection' legislation could infringe broadly upon women's liberty; punitive measures deter pregnant women from seeking necessary treatment and prenatal care; women need access to effective and appropriate treatment programs that address their needs." NARAL's goals include "better access to more effective contraceptive options and to other kinds of reproductive health care and information"15 in order to reduce the need for abortions. The Planned Parenthood Federation of America defines its mission as "believing in the fundamental right of each individual, throughout the world, to manage his or her fertility [because] such self-determination will contribute to an enhancement of the quality of life, strong family relations, and population stability." According to this organization's policy, "both parenthood and nonparenthood are valid personal decisions."16

On the other side of the coin are the views of pro-life advocates. While in their opposition to abortion, pro-life views tend to converge with those of conservative religions, the influential element is not always religion. Ziad Wael Munson examined the pro-life movement in four major US cities and found that a "substantial minority of pro-life activists have found a religion as a result of their social movement activism, rather than being drawn into activism as a result of pre-existing religious beliefs."17 Among pro-life groups, the American Life League argues for what it calls the Human Life Amendment: "The paramount right to life is vested in each human being from the moment of fertilization without regard to age, health or condition of dependency," saying that "the passage of this amendment is clearly the only way the killing will end."18 The National Right to Life Committee's response to the claim that 'It's my body/a woman's choice' is that "every mother is faced with profound decisions to make for herself and her child, but these decisions can never include the right to kill her baby. Mothers facing difficult pregnancies require accurate and compassionate information about the facts of fetal development."19 Stand to Reason contends that a radio broadcast by Gregory Kouki "convincingly describes how the issue of abortion is truly no different than the issue of slavery one of human rights."20 And, surprisingly, at a time when young Americans are among those most likely to want abortions—in order to avoid early (and possibly unsuitable) marriage and/or parenthood, be able to continue their education or career, or simply prolong the enjoyment of a life unencumbered by children—according to Generations for Life, "A significant change in our culture has gone largely unnoticed: young people are more pro-life than their elders." This group hopes to give direction to "youth who are disenchanted with contemporary American culture. 21

Both pro-choice and pro-life interest groups such as these are often in the spotlight and can have a strong influence on public opinion. Julie L. Andsager expresses the concern that in competing to shape policy, interest groups don't just present information, but rather, develop strong rhetoric to attract supporters and the media.22 The media themselves, by the way they format stories about abortion, can also mobilize public opinion. The older, excessively abstract format usually ignored "the concrete realities for women with unwanted pregnancies and for the potential life of each fetus." A more personalized format, favored now, connects "the language of everyday life to policy discourse," enabling audiences to better understand the situation of these women.23

Keeping in mind that the American population comprises many ethnic and racial groups, we take a look at whether their different cultures influence them with regard to abortion. Considering Latino populations, Sean M. Bolks et al find that among Mexican Americans, Puerto Ricans, and Cubans, "attitudes toward abortion are influenced by the same sets of variables that influence the attitudes of non-Latinos. Abortion is not an ethnic issue."24 But Mercer L. Sullivan found that, at least in poor neighborhoods, "Latinos are far more likely to marry and less likely to have abortions than are whites and blacks, whose marriage and abortion rates are similar."25 This may be because Latinos are culturally more likely to be Catholic and, therefore, to regard sex outside of marriage a sin, and abortion, whether within or outside of marriage, a mortal sin. Alexandra M. Minnis and Nancy S. Padian suggest that "sexual behaviors and contraception use practices vary by ethnicity and between foreign- and US-born adolescents."26 Robert W. Brown et al studied actual decisions about abortion made by 27,560 Hispanic women on the US side of the Texas-Mexico border to determine whether the influence of ethnicity was mediated by assimilation to US culture, but he found that abortion availability, employment, and economic factors were more important determinants for these women.27 The NARAL foundation examines ethnic and racial differences in abortion at length in "The Reproductive Rights and Health of Women of Color," finding that these differences are not so much because of the women's opinions as of treatment discrimination.28

Consensus of public opinion about abortion and its reflection in legislation, law, and court rulings

According to a Public Agenda survey, Americans—both men and women—are divided between pro-choice and pro-life, but lean slightly toward the view that abortion is morally wrong; these views are not significantly different than they were in 1973; [however] more than half of respondents feel that the decision of someone they know to have an abortion was the best one, even though they might not make that decision for themselves. A majority of respondents feel that their political representatives should not vote according to their own views but be willing to compromise according to the views of their constituents on this issue. A majority of respondents (some 60%) do not want to see Roe v. Wade overturned, but express concern about some of its provisions; most agree that abortion should be legal only during the first trimester of pregnancy and favor a number of proposed restrictions on use of the procedure.29 Greg M. Shaw reviewed results of public opinion surveys on abortion from the late 1980s to 2003 and found few changes in Americans' views over the time period; however, support of the motivations and circumstances of women seeking abortions did change, with "far stronger support for abortions for women whose life or health were threatened by the pregnancy than for those who were motivated by fetal defects, financial hardship, or no desire for children."30 Jennifer Strickler found that while whites had supported abortion to a greater degree than blacks in the 1970s, the opposite was true by the late 1980s; older people's more accepting views did not change over time; but the impact of religion did, in that the strong initial opposition of Catholics weakened somewhat, while that of fundamentalists increased.31

The consensus, then, is that at least 60% and probably more of Americans favor legal abortion, though they differ in the restrictions that should control its use. Is this what is reflected in legislation, court rulings, and state laws? A NARAL summary paper, "2003 Congressional Record on Choice," reports that "only 138 of 435 members of the House of Representatives are fully pro-choice. Pro-choice senators number only 33 of 100. Since anti-choice forces gained control of the House and Senate in 1994, Congress has cast 166 votes on reproductive rights and health-related issues; pro-choice members lost all but 32 of those votes."32 Furthermore, one piece of legislation criminalizing so-called "partial-birth" abortion was passed in October 2003 by both House and Senate, even though the Supreme Court had previously ruled an almost identical proposal unconstitutional. While the Court has thus far maintained the essence of Roe v. Wade, a reversal is quite possible during the next presidential term. A number of state courts have made anti-choice rulings, though some of these have been overturned by the Supreme Court because they contradicted Roe v. Wade, and state legislatures, since 1995, have passed 383 anti-choice bills.

In conclusion, it appears that better than half the people do not want to overturn Roe v. Wade; they feel that all Americans should have the right to a legal abortion, whether or not, as individuals, they would choose abortion for themselves. Some profess this right despite the covenants of their religion. Yet, their views often have not been reflected in state and federal legislation and court rulings, with the exception of the US Supreme Court, which has generally upheld the provisions of Roe. The facts suggest that this may not be the case much longer.

While many hope that Roe v. Wade will be overturned because they want a ban on abortion, others strive for an alternative. Could, as Susan Behuniak-Long suggested,33 Roe be outdated? A resolution to this debate might be found by a Supreme Court review of Roe in light of current knowledge and technology, subjecting its provisions to a critical look concerning the concepts of fetal viability and personhood, and supporting its decision with constitutional principles.

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