A Feminist's Political Epiphany

40 years ago today, Justice Blackmun delivered the landmark decision in Roe v. Wade. In which, the court determined that the Due Process Clause of the Fourteenth Amendment protects the right to privacy, including a woman’s right to terminate her pregnancy. Furthermore, the court found that anti-abortion legislation criminalizing abortions in all procedures except under life saving circumstances are unconstitutional as they violate the Due Process Clause. The decision in Roe has encountered extreme criticism throughout the last 40 years.  Many argue that public opinion more than legal reasoning and precedent influenced the majority opinion. Few landmark Supreme Court decisions are so intertwined with ethics and morality. In order to avoid such criticism, Justice Blackmun in the majority opinion, wrote; “Our task, of course, is to resolve the issue by constitutional measurement free of emotion and of predilection”.

Because Roe’s argument relied upon a fundamental right claim, the state was required to demonstrate that it had a compelling state interest in order to uphold the anti-abortion policy. This requirement, however, was not meet as the court surveyed the history of abortion policy and examined the states purposes and interests behind the anti-abortion legislation.  According to the research conducted by the court, common law identified a “quickening” status in which abortion was no longer legally allowed. This point is what we today call “viability”., usually identified as the first day of the second trimester. In the decision three justifications of anti-abortion legislation were addressed. First, that such laws discourage illicit sexual conduct. Second, that they protect pregnant women, and third, that they protect prenatal life. Today, public opinion on illicit sex, (I think it is fair to say), is no longer as negative as it was 40 years ago. In addition, the judgment that women cannot make decisions for their own bodies and must be protected by the state is no longer a widely held belief. Yet, the point at which a fetus is viable is still highly debated by medical professionals and the religious right.

Furthermore, public opinion in response to the decision in Roe has had an effect on state abortion policy. Utilizing longitudinal analysis of the pre-Roe period, Camobreco and Barnello found that “over time, state lawmakers have been able to calibrate state abortion policies so as to be generally consistent with mass abortion attitudes”.[1] Furthermore, they found that state legislators are more responsive to mass abortion attitudes than elite abortion attitudes. Yet, “the strengthened link between mass abortion attitudes and abortion policy has primarily resulted in more restrictive abortion policies”.[2] Another study, conducted in 2002 found that states that utilize the direct democratic practices of initiatives and referendum are more responsive to public opinion in regards to abortion policy.[3] However, this study’s results may be spurious due to methodological issues.

Therefore, public opinion influenced the decision in Roe v. Wade and continues to influence state abortion policy. Today on the 40^th anniversary of the Roe decision, the Pew Forum conducted a public opinion survey on attitudes toward abortion policy. According to the findings of the survey, 25% of the U.S. public believes that abortion is morally wrong and would like to see Roe overturned. [4] While 18% believe that abortion is morally wrong but do not think Roe should be overturned. The other 42% of the U.S. public does not believe that abortion is morally wrong or that Roe should be overturned. Roughly 63% of the U.S. public believes that Roe should not be overturned. However, there continues to be wide religious and partisan differences in opinion on abortion policy.

However, while the majority of the American public would not overturn Roe v. Wade, many state legislators have maintained a campaign against abortion by restricting access. Roe’s equal protection claim still has relevance today.  Access is restricted due to the shortage of abortion clinics and hospitals in many states, parental consent or notification laws, mandatory waiting periods, and biased counseling laws. In addition, many women face financial burdens when choosing abortion. If public opinion does heavily influence abortion policy the message is clear; abortion within the first trimester is legal, but access is not guaranteed.

Further research as to the general public’s opinion on abortion policy by state may partially explain the differences in access.