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Prepared for the Panel Colloquium Thirty-Six Years of Roe v. Wade January 22, 2009 The Effects of Thirty-Six Years of Roe v. Wade on American Life and Law By Lynn D. Wardle Bruce C. Hafen Professor of Law J. Reuben Clark Law School Roe v. Wade, 410 US 113 (Jan. 22, 1973)

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Prepared for the panel colloquium thirty six years of roe v wade january 22 2009 l.jpg

Prepared for the Panel Colloquium

Thirty-Six Years of Roe v. Wade

January 22, 2009

The Effects of Thirty-Six Years of Roe v. Wade on American Life and Law By Lynn D. WardleBruce C. Hafen Professor of LawJ. Reuben Clark Law School


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Roe v. Wade, 410 US 113 (Jan. 22, 1973)

  • Unwritten (SDP) constitutional right of privacy includes abortion decision

  • No restrictions in 1st Trimester

  • Only regulation of medical safety in 2d Tri

  • After ‘viability’ (28 wks) state may restrict

    • - unless nec to protect life or health of mother – including financial health, stress, etc.

      DOE: ALI model Penal Code abortion provisions unconstitutional

      Effect: All abortion laws in all 50 states struck down


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Twelve Effects of Roe v. Wade on Law in the U.S.

1) Abortion Regulation nationalized

Violation of federalism; federal govt (crts) set policy

2) Abortion Regulation Constitutionalized (SDP)

3) Judiciary created new constitutional right (SDP) (White judicial ‘fiat’)

Violated Separation of Powers, Check & Balances

4) Courts (mostly fed) monitor/expand new constitutional right

5) Shabby reasoning, shameful misstatements

6) Altered / circumvented amendment process of Art. V

7) Substantive Private Right to Kill Unborn Child in Constitution

8) US has most radical abortion law in world (MA Glendon)

9) No restriction until 3rd trimester – viability (abortionists’ choice)

2d trimester only minor regulation of method

10) Denial of Pro-Life First Amendment Speech & conscience rights

11) No notice to husband permitted

12) Virtually all restrictions struck down for 36 years (except funding, parental notice & informed consent)


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Allowed State Restrictions on Abortion

Parental consent or notification

required for minors 35 states (15 without)

State abortion funding restricted 33 states (17 fund -

4 states voluntarily, 13 under court order)

Mandatory counseling 32 states (18 without)

Waiting periods 24 states (26 without)

OK private insurance to exclude

coverage for abortion 4 states (46 without)

Source: PRCH & GI 08, Overview; Guttmacher, 2007; ACLU http://www.aclu.org/FilesPDFs/map.pdf (2004) (seen 1/17.2009)


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NB: Utah is #23

Source:

AUL, 15 Jan 08

http://www.aul.org/?p=11


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William Blackstone, Commentaries on the Common Law of England (1756)

  • Rights of Persons:

    “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offense in quite so atrocious a light but merely as a heinous misdemeanor.”


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Declaration of Independence & Constitution

  • “all Men are created equal, that they are endowed by the Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness”

  • The Declaration of Independence

  • “nor deprive any person of life . . . Without due process of law” Fifth Amendment & Fourteenth Amendments


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Effect of Roe on Life in the USA : The Killing Continues

  • At least 50 million reported lives of living children in utero destroyed by abortion since Roe (1973)

  • Plateau of abortion level (slow drop) if account for demography

  • 1.21 million abortions reported in 2005 (last yr AGI)

  • 47% o f all women having abortions are repeaters

  • Nearly ¼ of all pregnancies end in abortion

  • 37% of all abortions after at 9 or more weeks!!

  • Less than 2 percent (2%) of all abortions for ‘hard cases’


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Abortions: 1972-2005 (AGI data)*

*The Alan Guttmacher Institute produces the most reliable data on abortions in the United States. The AGI estimates that they 3-6% of all abortions are unreported. (CDC data is usually 12-19% lower than AGI because of CDC’s passive collection of official data.) 2005 still latest date from AGI – see In Brief, Facts on Induced Abortion in the United States, http://www.guttmacher.org/pubs/fb_induced_abortion.html (July 2008) (seen 17 Jan 2009)



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Many women obtaining abortions have had a previous abortion, but the proportion has stabilized over time(GITiA08)


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Number of US Abortions per 1,000 women 15-44, by year but the proportion has stabilized over time

About one-third of American women will have had an abortion by age 45.

Source: AGI – see In Brief, Facts on Induced Abortion in the United States, http://www.guttmacher.org/pubs/fb_induced_abortion.html (July 2008) (see 17 Jan 2009)


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US Abortion Rate Higher Than Many Nations but the proportion has stabilized over timeCountries

Abortions per 1,000 women

Source: Source: PRCH &GI 08, Overview; Sedgh, 2007


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Nillson 1966 photo, 11-week fetus but the proportion has stabilized over time


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Nillson 1966 photo, 29-week fetus but the proportion has stabilized over time


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21 week fetus grasping surgeon’s finger but the proportion has stabilized over time


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Erosion of the Ethic of Respect for Life but the proportion has stabilized over time

  • More killing of aged, infirm, disabled, handicapped

  • More Child abuse

  • More Violent Crime

  • Less compassion, humanity, sensitivity

  • “Hearts of men wax cold”


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What to Expect from Administration of President Obama? (Pessimistic)

  • “Barrack Obama is the most extreme pro-abortion candidate ever to seek the office of President of the United States. He is the most extreme pro-abortion member of the United States Senate. Indeed, he is the most extreme pro-abortion legislator ever to serve in either house of the [U.S.] Congress.”

    • Professor Robert George (Princeton), Obama’s Abortion Extremism, The Witherspoon Institute (Oct. 14, 2008)


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Obama – Pessimistic Predictions (cont’d) (Pessimistic)

Worries About Obama (cont’d)

  • 1) Obama promised “the first thing I’d do as President is sign the Freedom of Choice Act”

  • 2) Obama favors repeal of the Hyde Amendment (funding ban)

  • 3) Obama opposed ban of “partial birth abortion (infanticide)

  • 4) Obama opposed legislation to protect children “born alive” as a result of (unsuccessful) abortion

  • 5) Obama describes unintended pregnancy of young woman as a “punishment” she should not have to endure

  • 6) Obama wants to use federal funds for Embryonic Stem Cell research (even though it is now antiquated as well as immoral)

    • - source: Robert George, Obama’s Abortion Extremism, The Witherspoon Institute (Oct. 14, 2008)

  • 7) Obama opposed confirmation of CJ Roberts and Justice Alito.


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What to Expect from President Obama? (Optimistic) (Pessimistic)

  • “Before he was a devoted husband and father, or a U.S. Senator, or a presidential candidate of historic accomplishment, Barack Obama took a job working as a community organizer for a group of eight Catholic parishes in one of the nation’s largest cities.”

    • Victoria Reggie Kennedy, in Patrick Whelan (M.D., Ph.D.), The Catholic Case for Obama 1 (Catholic Democrats, 2008)


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Obama – Optimistic Predictions (cont’d) (Pessimistic)

  • 1) “Obama played a personal role in writing the abortion language [of] the Democratic platform [which says]: We . . . Recognize that . . . Health care and education help reduce the numbersof unintended pregnancies and thereby also reduce the need for abortions. The Democratic Party also strongly supports a woman’s decision to have a child by ensuring access to and availability of programs for pre- and post-natal health care, parenting skills, income support, and caring adoption programs.”

  • 2) Obama told the Catholic Digest (October 2008): “Nobody is pro-abortion. I believe we need to do more to address the underlying factors that may lead a woman to make these heart-wrenching decisions. We should do everything we can to reduce unintended pregnancies and support women who choose to have a child. . . . If we can create a situation where young women and young men are acting responsibly and recognize the sacredness of human sexuality, then we can drastically cut the number of abortions. That is something that I intend to work with people from all perspectives on, when I’m president of the United States.”

    • – Source: Patrick Whelan (M.D., Ph.D.), The Catholic Case for Obama 21-24 (Catholic Democrats, 2008)


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What to Expect from Congress (Pessimistic)

  • 1) After 2004 elections, Democrat leadership in Congress became activist in showing moderation on abortion

  • 2) In 2008 Democrat-sponsored bills included (a) Reducing the Need for Abortion and Support Parents Act, (b) Prevention First Act, and earlier with (c ) Adoption Promotion Act of 2003 (Pub. L. No. 108-145), and (d) Democrats for Life support of Pregnant Women Support Act.


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The Freedom of Choice Act (Pessimistic)

  • S. 1173 110th Cong. 1st Sess. (April 2007) (LAST CONGRESS VERSION)

    • 5-page Preamble filled with pro-choice rhetoric and bogus “facts”

      • “one of the most private and difficult decision”

      • “Roe v. Wade carefully balances”

      • Roe has “protected the health and lives of women”

      • Before Roe an estimated 1.2 million illegal abortions

      • Roe “expanded the opportunites for women to participate equally in society”

      • “increasing threats to reproductive health and freedom

      • Gonzalez v. Carhart upholding ban of Partial Birth Abortion is “threatening” and “fails to protect a woman’s health” and “for first time Court blesses a prohibition”

        Broad, ambiguous operative language

        Policy of US “that every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to fetal viability, or to terminate a pregnancy after viability when necessary to protect the life or health of the woman.” Sec. 4(a)

        Government “may not (1) deny or interfere with a woman’s right to choose – (A) to bear a child; (b) to terminate a pregnancy [before or (c ) after viability where necessary. . . .” or

        Government may not (2) “discriminate against the exercise of the rights set forth . . . .”


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2008 Election Results re: Life Issues (Pessimistic)

  • Three proposed pro-life ballot measures lost:

    • CA Prop 4 to require parental notice before abortions on minors (very close)

    • SD Initiated Measure 11 constitutional amendment to ban abortions except in cases of danger to mother’s life or health, or for rape or incest failed (not close)

    • CO Pro 48 constitutional amendment to define ‘person’ as ‘any human being from the moment of conception’ failed (not close)

  • Two Anti-Life ballot measures won:

    • WA Initiative 1000 (physician-assisted suicide)

    • MI Proposal allows state-funded ESC and human embryo research


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What Can Be Done? (Pessimistic)

  • Abortion is an act of violence.

  • Abortion is a form – the most lethal form – of child abuse

  • Abortion is unnecessary in this day of access to contraceptives and adoption

  • Abortion erodes the ethical quality of life in America


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Elie Wiesel, (Pessimistic)Night

  • “Not far from us, flames, huge flames, were rising from a ditch. Something was being burned there. A truck drew close and unloaded its hold: small children. Babies! Yes, I did see this, with my own eyes . . . children thrown into the flames.”

  • “How was it possible that men, women, and children were being burned and that the world kept silent. . . .”

    (p. 32, 2006 ed.) (retranslation)


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Elie Wiesel, Nobel Speech 1986 (Pessimistic)

  • “I swore never to be silent . . . . We must take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor . . . .”

    Id. at 117, 118.


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Gordon B. Hinckley, (Pessimistic)Standing for Something (2000)

What we desperately need today on all fronts . . . are leaders, men and women who are willing to stand for something. We need people . . . who are willing to stand up for decency, truth, integrity, morality, and law and order . . . even when it is unpopular to do so – perhaps especially when it is unpopular to do so.

. . . .

. . . Never before, at least not in our generation, have the forces of evil been so blatant, so brazen, so aggressive as they are at the present time. . . .

. . . .

We are involved in an intense battle. It is a battle between right and wrong, . . . . [W]e desperately need men and women who, in their individual spheres of influence, will stand for truth in a world of sophistry. . . .We need moral men and women, people who stand on principle, to be involved in the political process. . . .


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Thank you (Pessimistic)


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The annual number of legal abortions increased through the 1970s, leveled off in the 1980s and fell in the 1990s

Source: GITiA08 = Trends in Abortion in the United States, 1973–2005, Guttmacher Institute 08


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