As voters prepare to head to the polls, the issue of abortion keeps coming up. Although polls have indicated that only about 5% of voters identify the issue as “the most important problem facing the country today,” it remains important to address vague or incorrect claims made in support of abortion, including the latest argument we’ve heard from some abortion supporters that Roe v. Wade was reasonable because it contained restrictions on abortion.
The implication is that the Left is fine with the “restrictions” that Roe supposedly placed on abortion, and conservatives should be as well.
It’s all a ploy. And a desperately weak one at that.
The Left’s current political orthodoxy will not consider any restrictions on abortion whatsoever. Abortion supporters attempt to paint pro-life Americans as extreme, but they themselves will not tolerate any limitation at all. That is their official position.
That’s why any attempt on the Left to portray Roe as containing acceptable restrictions on abortion is nonsense.
It did not. And it’s important to understand why it didn’t.
Before it was overturned by the U.S. Supreme Court in June in Dobbs v. Jackson Women’s Health Organization, Roe, along with its 1973 companion case, Doe v. Bolton, stood for two basic legal propositions:
First, using the “viability” of the baby as a determining factor – which in 1973 was considered to be around 25 weeks gestation – the court ruled that states had almost no legal interest to protect in regulating abortion before that point, other than peripheral issues such as parental notice. At any rate, states could not simply prohibit pre-viability abortions.
Second, after viability, states could regulate, even “prohibit” abortion, in order to promote the interest of protecting “potential life,” except “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” (emphasis added).
But what constituted a threat to the “health” of a mother? Doe v. Bolton gave us the answer.
The Bolton decision defined the preservation of a woman’s health as “medical judgment … exercised in the light of all factors – physical, emotional, psychological, familial and the woman’s age – relevant to the wellbeing of the patient. All these factors may relate to health,” Justice Harry Blackmun wrote for the majority.
So, exactly how many abortions would be prevented by that particular definition of “health?”
I think we all know the answer to that one. Nada. Zip. Zilch.
In an explanation from legal expert Ed Whelan writing for National Review’s “Bench Memos,” he wrote that the Bolton definition of “health” as applied to Roe’s reasoning has been widely read to mean “an abortionist has unlimited discretion to do an abortion at any time even after viability and all the way to childbirth.”
To be fair, several conservative justices over the years have rejected that interpretation of Bolton’s broad “health” definition, according to Whelan, but the broad interpretation remains viable – no pun intended – and was even mentioned by Justice Samuel Alito in his majority opinion in Dobbs. (“In addition, Doe v. Bolton … has been interpreted by some to protect a broad right to obtain an abortion at any stage of pregnancy provided that a physician is willing to certify that it is needed due to a woman’s ‘emotional’ needs or ‘familial’ concerns.”)
So, contrary to what some on the Left are saying now in a desperate attempt to sway voters, Roe v. Wade didn’t contain any restrictions on abortion, it only set limits on what states can do. And Bolton guaranteed that the states couldn’t do much at all to impede the abortion industry, which since 1973 has killed approximately 64 million pre-born babies.
And more importantly, Roe v. Wade was a constitutional aberration from the beginning. As Justice Alito put it in his Dobbs opinion, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
Damaging consequences, indeed.
So, when someone suggests to you that we should return the issue of abortion to the days of Roe v. Wade, understand that Roe stands for unrestricted abortion on demand through all nine months of pregnancy. Then ask them if that’s what they support.
Photo from Shutterstock.