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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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
DOE: ALI model Penal Code abortion provisions unconstitutional
Effect: All abortion laws in all 50 states struck down
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)
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)
AUL, 15 Jan 08
“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.”
*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)
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)
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
Worries About Obama (cont’d)
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 . . . .”
(p. 32, 2006 ed.) (retranslation)
Id. at 117, 118.
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. . . .
Source: GITiA08 = Trends in Abortion in the United States, 1973–2005, Guttmacher Institute 08