Private: Roe Anniversary and Rethinking Strategies to Protect Reproductive Health and Liberty

by Jeremy Leaming

So a new Pew poll finds a majority of Americans under 30 do not know what the landmark U.S. Supreme Court case, Roe v. Wade was all about. Well this month marks the 40th anniversary of that landmark decision, so maybe a few more of those under 30 will get a clue about a case that advanced liberty for women. They might also learn that Roe has been undercut by subsequent Supreme Court opinions, which have helped state lawmakers create and enact measures making it far more difficult for women to make decisions about their health.

The opinion issued on Jan. 22, 1973 invalidated a state law banning abortion. A majority of the court led by Justice Harry Blackmun found that the state ban on abortion violated personal privacy. Blackman wrote, in part, that a “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state actions, as we feel it is, or as, the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

On Jan. 18 – 19 as part of the Constitution in 2020 project, several groups, including ACS, will host a conference examining two landmark Supreme Court cases, one being Roe, that helped advance liberty and equality for minorities. The conference at UCLA called “Liberty/Equality: the View from Roe’s 40th and Lawrence’s 10th Anniversaries,” will include some of the nation’s leading experts on gender, sexuality and equality to examine conflicts that led to the landmark decisions and look at how the current Supreme Court has handled ongoing debate over reproductive rights and equality for the LGBT community (The high court in Lawrence v. Texas invalidated a state law banning sex between consenting adults of the same gender.)

Dawn Johnsen, an ACS Board Member, will be among the participants at the Constitution in 2020 gathering. Johnsen (pictured), a distinguished law professor at Indiana University Maurer School of Law, authored an ACS Issue Brief in 2008 on the 35th anniversary of Roe. It’s a prescient piece, noting that challenges to reproductive rights were intensifying, partly because of high court decisions that followed Roe, which opened the door to more onerous restrictions on women’s autonomy.

As noted here recently Reva Siegel and Linda Greenhouse, writing for Balkinization’s Constitution in 2020 conference forum, suggested that a backlash to reproductive freedom was swelling even before Roe was handed down. But in her ACS Issue Brief, Johnsen noted that the setbacks to Roe really got underway with the high court’s 1992 Planned Parenthood v. Casey opinion.

The “Casey Court allowed the government substantially greater authority to interfere with women’s reproductive choices,” Johnsen wrote. “The Court, in fact, upheld restrictions it previously had held unconstitutional, and in the process overruled in part protective rulings from the 1980s.”

Although the majority in Casey stated that Roe’s “essential holding” was affirmed, it did open the door for future actions by the high court to further undermine the freedom of women. For example, Johnsen notes that the Supreme Court’s 2007 ruling in Gonzales v. Carhart upheld a federal regulation of so-called “partial birth” abortions. (As Johnsen writes, the term “partial birth” abortion is a political, not a medical one and was aimed at shifting the focus from the health of the women to the fetus.)

In her Issue Brief, Johnsen urged progressives to launch strategies to counter right-wing efforts to reframe the debate and muddle the public’s perceptions about abortion. “Effective strategies,” she wrote, “must target this public misperception and emphasize political action, the harm caused by incremental abortion obstacles, and a broad range of policies that promote reproductive choice and health.”

Now on the 40th Anniversary of Roe, progressives are still struggling with a rocky landscape. State and federal lawmakers have worked to enact or advance measure protecting fetuses. A string of states have enacted laws making it more onerous, especially for lower-income women to obtain abortions, and laws making it tougher for physicians to perform abortions. There are now far too many states with few if any physicians to perform abortions. It’s not enough for right-wing outfits to stamp out abortions, they also want to discourage or make it difficult for women to use contraceptives. (For example, religious and secular groups have brought lawsuits against the Affordable Care Act’s policy requiring employers’ health care providers to ensure that women have access to free contraceptives – many of the challengers argue that the policy violates their religious beliefs.)

But Johnsen argued that progressives should strive to more effectively counter the misperceptions. Her suggestions are as important, if not more so, now.

She noted that the dissenting justices in Carhart “made significant progress … by resting reproductive liberty for the first time on a theory of equal protection and equal citizenship. Justice Ginsburg wrote for the dissenting Justices: ‘Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.’”

The cases, laws and political rhetoric following Roe have worked to stigmatize abortion, leading to many more obstacles to the medical procedure. Johnsen wrote that those obstacles needed more attention – “the protests, harassment and violence directed at abortion clinics, providers and their families; the lack of abortion training opportunities in medical school; and the literally hundreds of state abortion restrictions that are designed both to sound reasonable and to stop the performance of abortions as effectively as a criminal ban.”

On the 40th anniversary of Roe, many under the age of 30 may not know what the case was about, but they’re totally clueless if they believe liberty is only to be enjoyed by select groups of Americans. 

Constitutional Interpretation, Equality and Liberty, Reproductive Rights, Supreme Court, Women's rights