The Roe v. Wade Decision Should be Reconsidered

TESTIMONY OF M. EDWARD WHELAN, ESQ., PRESIDENT, ETHICS AND PUBLIC POLICY CENTER BEFORE THE SENATE JUDICIARY SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS, HEARING ON SUPREME COURT ABORTION CASES, JUNE 22, 2005

Good afternoon, Chairman Brownback and Senator Feingold, and thank you very much for inviting me to testify before you and your subcommittee on this important subject.

I am Edward Whelan, president of the Ethics and Public Policy Center. The Ethics and Public Policy Center is a think tank that for three decades has been dedicated to exploring and explaining how the Judeo-Christian moral tradition and this country's foundational principles ought to inform and shape public policy on critical issues.

The Ethics and Public Policy Center's program on The Constitution, the Courts, and the Culture, which I direct, explores the competing conceptions of the role of the courts in our political system. This program focuses, in particular, on what is at stake for American culture writ large—for the ability of the American people to function fully as citizens, to engage in responsible self-government, and to maintain the "indispensable supports" of "political prosperity" that George Washington (and other Founders) understood "religion and morality" to be.

Why re-examine Roe v. Wade ? Why are we here today addressing a case that the Supreme Court decided 32 years ago, that it ratified 13 years ago, and that America's cultural elites overwhelmingly embrace? The answer, I would submit, is twofold.

First, Roe v. Wade marks the second time in American history that the Supreme Court has invoked "substantive due process" to deny American citizens the authority to protect the basic rights of an entire class of human beings. The first time, of course, was the Court's infamous 1857 decision in the Dred Scott case (Dred Scott v. Sandford, 60 U.S. 393 [1857]). There, the Court held that the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, could not constitutionally be applied to persons who brought their slaves into free territory. Such a prohibition, the Court nakedly asserted, "could hardly be dignified with the name of due process."… Thus were discarded the efforts of the people, through their representatives, to resolve politically and peacefully the greatest moral issue of their age. Chief Justice Taney and his concurring colleagues thought that they were conclusively resolving the issue of slavery. Instead, they only made all the more inevitable the Civil War that erupted four years later.

Roe is the Dred Scott of our age. Like few other Supreme Court cases in our nation's history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states. Roe imposes on all Americans a radical regime of unrestricted abortion for any reason all the way up to viability—and, under the predominant reading of sloppy language in Roe 's companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth. Roe fuels endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, seeking to ensure informed consent and parental involvement for minors and barring atrocities like partial-birth abortion. Roe disenfranchises the millions and millions of patriotic American citizens who believe that the self-evident truth proclaimed in the Declaration of Independence—that all men are created equal and are endowed by their Creator with an unalienable right to life—warrants significant governmental protection of the lives of unborn human beings.

So long as Americans remain Americans—so long, that is, as they remain faithful to the foundational principles of this country—I believe that the American body politic will never accept Roe.

The second reason to examine Roe is the ongoing confusion that somehow surrounds the decision. Leading political and media figures, deliberately or otherwise, routinely misrepresent and understate the radical nature of the abortion regime that the Court imposed in Roe. And, conversely, they distort and exaggerate the consequences of reversing Roe and of restoring to the American people the power to determine abortion policy in their respective States. The more that Americans understand Roe, the more they regard it as illegitimate.

Reasonable people of good will with differing values or with varying prudential assessments of the practical effect of protective abortion laws may come to a variety of conclusions on what abortion policy ought to be in the many diverse states of this great nation. But, I respectfully submit, it is well past time for all Americans, no matter what their views on abortion, to recognize that the Court-imposed abortion regime should be dismantled and the issue of abortion should be returned to its rightful place in the democratic political process….

Myths about Roe abound, and I will not strive to dispel all of them here. One set of myths dramatically understates the radical nature of the abortion regime that Roe invented and imposed on the entire country. Roe is often said, for example, merely to have created a constitutional right to abortion during the first three months of pregnancy (or the first trimester). Nothing in Roe remotely supports such a characterization.

A more elementary confusion is reflected in the commonplace assertion that Roe "legalized" abortion. At one level, this proposition is true, but it completely obscures the fact that the Court did not merely legalize abortion—it constitutionalized abortion. In other words, the American people, acting through their state legislators, had the constitutional authority before Roe to make abortion policy. (Some States had legalized abortion, and others were in the process of liberalizing their abortion laws.) Roe deprived the American people of this authority.

The assertion that Roe "legalized" abortion also bears on a surprisingly widespread misunderstanding of the effect of a Supreme Court reversal of Roe. Many otherwise well-informed people seem to think that a reversal of Roe would mean that abortion would thereby be illegal nationwide. But of course a reversal of Roe would merely restore to the people of the States their constitutional authority to establish—and to revise over time—the abortion laws and policies for their respective States.

This confusion about what reversing Roe means is also closely related to confusion, or deliberate obfuscation, over what it means for a Supreme Court Justice to be opposed to Roe. In particular, such a Justice is often mislabeled "pro-life." But Justices like Rehnquist, White, Scalia, and Thomas who have recognized that the Constitution does not speak to the question of abortion take a position that is entirely neutral on the substance of America's abortion laws. Their modest point concerns process: abortion policy is to be made through the political processes, not by the courts. These Justices do not adopt a "pro-life" reading of the Due Process Clause under which permissive abortion laws would themselves be unconstitutional….

TESTIMONY OF PROFESSOR RONALD D. ROTUNDA OF THE UNIVERSITY OF ILLINOIS LAW SCHOOL, CHAMPAIGN, IL, BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS, SENATE JUDICIARY COMMITTEE, HEARING ON "THE 25TH ANNIVERSARY OF ROE V. WADE: HAS IT STOOD THE TEST OF TIME? " JANUARY 21, 1998

The Supreme Court issued its first abortion opinion on January 22, 1973. That opinion, Roe v. Wade … has ushered in a quarter century of criticism by many academic commentators. In so doing, the Supreme Court created a right to abortion (essentially abortion on demand) that was broader than the abortion rights granted by almost any other western nation. It also federalized the abortion issue, an issue that had been left in the custody of the states for nearly two centuries.

Though a fragmented Court itself later backtracked on Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey … it did not overrule all of Roe because, as the O'Connor-Kennedy-Souter plurality candidly stated, it was important to respect precedent….

Our Constitution respects and protects privacy in many ways, but the Court normally derives this right to privacy from various clauses in the text, such as the privacy rights that derive from the First and Fourth Amendments. The Court has also been protective of activity that occurs in the home, but abortions, which occur in the hospital or in medical clinics, are not private in that sense.

Indeed, the analysis of Roe specifically does not rely on any interpretation of the text of the Constitution…. Instead, the Roe Court announced that it simply "agree[d]" with the proposition that "the right of privacy, however based, is broad enough to cover the abortion decision," although this right is "not absolute."…

What is the true rationale of Roe ? It is often described as a women's rights case. Supporters have argued that a woman should have the right to control her own body. However, Justice Blackmun's majority opinion specifically rejected that contention…. The opinion states quite emphatically: "In fact, it is not clear to us that the claim … that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions…."

… It is popularly understood that Justice Harry Blackmun's majority opinion in Roe stated that the state has no right to regulate abortion prior to the end of approximately the first trimester. That is when the state's interest reaches, in Blackmun's words, "a compelling point." During the second and third trimesters, the state has more power.

But this is not what Blackmun actually held. He wrote the opinion as if it were a doctor's rights case, not a women's rights case. Consider this strange sentence in his opinion: "For the period of pregnancy prior to this 'compelling' point, the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient's pregnancy should be terminated…."

Under Roe and similar abortion decisions that rely on it, the woman does not have the right to choose; she does not have a right to abortion. It is the doctor (whom the Roe opinion assumed to be a man) who has that right. In a small bow to women's rights, Justice Blackmun noted that the doctor should consult with his patient, the woman on whom the abortion is to be performed. And when the patient consults with the doctor, the doctor has a constitutional right to be free of "regulation by the state."

Two years after Roe, Connecticut v. Menillo upheld a Connecticut law making it a crime for "any person" to attempt an abortion. The Court ruled that this criminal statute—although it seemed to go far beyond what Roe allowed—was constitutional as applied to an attempted abortion performed by someone other than a licensed physician…. A woman has no right to choose a non-doctor to perform an abortion, even though a non-doctor might be just as safe and even though a woman can choose a non-doctor, such as a midwife, to deliver a full-term baby.

Later cases have confirmed that Roe was primarily drafted to protect doctors, not their patients. Thus, the Court has said, in Colautti v. Franklin … that "neither the legislature nor the courts" can define viability objectively, "be it weeks of gestation, or fetal weight, or any other single factor," because the judgment of the doctor must control.

Planned Parenthood of Central Missouri v. Danforth struck down a section of a law that forbade the use of saline amniocentesis as a method of abortion after the first trimester because the Court ruled that the law was not necessary to protect maternal health. However, the state specifically found that this technique "is deleterious [harmful] to maternal health," and the lower court findings supported this conclusion….

Even though the Court majority admitted that other techniques were safer for women, it simply concluded that saline abortions were "an accepted medical procedure" in the view of doctors … and thus were constitutionally protected from state regulation. Women are the victims of this decision….

Those people who insist that no statute should limit Roe in any way, those who believe that we must follow Roe without change … those advocates should read that decision and the others that follow in its wake. The decision is not about protecting women; it is about protecting doctors.

TESTIMONY OF STEVE CALVIN, M.D., SPECIALIST IN MATERNAL-FETAL MEDICINE, BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS, SENATE JUDICIARY COMMITTEE, HEARING ON "THE 25TH ANNIVERSARY OF ROE V. WADE: HAS IT STOOD THE TEST OF TIME? " JANUARY 21, 1998

… The subspecialty of maternal-fetal medicine is only two decades old and is unique in that we care for two patients in the mother and her unborn child…. Only on very rare occasions are the medical interests of the mother and unborn baby in conflict.

During the last 25 years, progress in the area of obstetrics and maternal-fetal medicine has been astonishing. By 1973, obstetrics had made great strides in making pregnancy and birth a relatively safe experience for women. Since the beginning of this century, developments in antibiotics, transfusion, and anesthesia caused the risk of maternal death to decrease by 50- to 100-fold. Attention was then turned to improving the outcome for the baby….

The new focus on the baby was achieved by development of fetal ultrasound imaging technology. Prior to 1973, the anatomic development and activities of the fetus were invisible.

…At the time of the Roe v. Wade decision, ultrasound during pregnancy was largely experimental. During the '70s and '80s, the beneficial uses of ultrasound in pregnancy multiplied….

Current ultrasound imaging techniques reveal the marvelous complexity of prenatal growth and development…. However, the use of this wonderful window on the womb has become increasingly disconcerting for some who would rather view the fetus as pregnancy tissue or the product of conception….

In the last two and one-half decades, our ability to obtain clear images of the fetus has expanded the concept of the fetus as a patient….

Unborn babies can be treated with medications for dangerously irregular heart rhythms and can receive blood transfusions if they are anemic. On rare occasions, surgical procedures can be performed before birth….

We are clearly in a new era of obstetrics because of ultrasound and the expanding concept of treatment of the fetus as a patient. Yet there is an inescapable schizophrenia when modern medicine works under ethical rules which say that a fetus is a patient only when the mother has conferred this status. The trouble is that this status can be withheld or withdrawn. The combination of current unrestricted legal abortion and our increasing abilities to diagnose fetal abnormalities and diseases prenatally is a very dangerous two-edged sword.

In many ways, modern obstetrics is becoming an impersonal techno specialty dedicated to the concept of the perfect baby. Prenatal diagnosis can benefit the mother and baby when treatment options are available, but much of prenatal diagnosis is designed to detect fetal abnormalities so that the choice of abortion is available. The majority of these abnormalities, such as Down Syndrome, are not usually fatal. Even abortion supporters are horrified by the possibility of abortions based only on the sex of the unborn child. But why is abortion for the most sexist of reasons any worse that abortion for any other reason?

So far we do not have an overtly eugenic social policy but we are certainly encouraging family-based eugenics [selective breeding]. This use of abortion will gradually weaken society's commitment to the inclusion and care of the disabled in our human community.

In 1973, Roe v. Wade shattered the issue of abortion into sharp fragments. We are still dealing with the medical, social, and political fallout of the Supreme Court's willingness to go far beyond the traditional boundaries of medical ethics and practice. The tenets of Hippocratic medicine have served us well for more than 2,000 years. But our 25-year experiment with unrestricted abortion has caused the practice of medicine to become increasingly inconsistent. The tension between valuable ethical traditions and currently legal medical practice is untenable (cannot be maintained).

STATEMENT OF JEAN A. WRIGHT, M.D., M.B.A, BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS, SENATE JUDICIARY COMMITTEE, ON "THE 25TH ANNIVERSARY OF ROE V. WADE: HAS IT STOOD THE TEST OF TIME? " JANUARY 21, 1998

… I would like to focus my remarks on the changes we have seen in the field of pediatrics, particularly the areas of neonatology, surgery, anesthesia, and intensive care. Medical knowledge in those areas provide a new standard of science, upon which a very different conclusion might be reached if Roe v. Wade were decided in 1998, rather than the limited information that was available in 1973….

In 1973, the scientific discussion heavily focused on the issues of fetal viability. At that time, the common understanding was that infants born before 28 weeks could not survive. Today, that age of viability has been pushed back from 28 weeks to 23 and 24 weeks. And some investigators are working on an artificial placenta to support those even younger.

In fact, while the number of children that are born and survive at 23-28 weeks gestation [is] still a minority of the infants in a NICU [Neonatal Intensive Care Unit], they are common enough that the colloquial term "micro-preemie" has been coined to describe them, and an additional body of neonatal science has grown to support the care of the very premature infant. So in 25 years, we have gone from a practice in which those infants, once thought to be non-viable, are now beneficiaries of medical advances in order to provide them with every opportunity to survive.

… Very pre-term neonates [newborns] have the neuroanatomic substrate and functional physiologic and chemical processes in the brain responsible for mediating pain or noxious stimuli (known as nociception)….

Anatomic studies have shown that the density of cutaneous nociceptive nerve endings in the late fetus and newborn infant equal or exceed that of adult skin.

… A controlled study of intrauterine blood sampling and blood transfusions in fetuses between 20 and 34 weeks of gestation showed hormonal responses that were consistent with fetal perception of pain….

Pre-term neonates born at 23 weeks gestation show highly specific and well-coordinated physiologic and behavioral responses to pain, similar to those seen in full-term neonates, older infants, and small children….

All of the scientific references I have just made are from research breakthroughs in the last 10 years. This information was not available in 1973. As a result of this newly emerging understanding of fetal pain development, Anand and Craig, in a 1996 editorial in the journal PAIN, called for a new definition of pain, a definition that is not subjective and that is not dependent on the patient's ability to provide a self-report.

… Today, we are the beneficiaries of an enormous fund of new medical knowledge, and I believe we should incorporate that into our approach to protecting the life of the unborn.

Furthermore, places such as the University of California, with its Fetal Surgery Center, are doing just that. Exciting surgical advances, which allow for the surgeon to partially remove the fetus through an incision in the womb, fix the congenital defect, and then slip the "previable" infant back into the womb, should make us reconsider the outcome and viability of many pre-term infants, particularly those with challenging congenital defects.

… Today we are hearing evidence, both medical and legal, that was not available to our counterparts in 1973. We cannot change the ramifications of their decision, but we can make better and more informed decisions today. Just as the incoming tide raises the level of the water in the harbor, and in doing so, all the boats rise to the same new level; so should we allow the tide of new medical and legal information serve as a tide to raise both our medical and legal understanding of the unborn. And in doing so, lead us to making better decisions for this vulnerable population.

STATEMENT OF REPRESENTATIVE HELEN CHENOWETH (R-ID), NOVEMBER 21, 1997

Twenty-four years ago, the Supreme Court removed a God-given, unalienable right from unborn babies, a right it has the duty to secure and protect. In doing so, it elevated a "judge-made" right, the right of a person's privacy, above the God-given right to life.

It has always been my belief that unborn children should be cherished, and abortion for the convenience of the mother is contrary to the convictions that mean a great deal. I believe the life of an unborn child is to be respected as truly as the life of a newborn.

It grieves my heart that each day more and more lives are lost because of abortion. I think it is unfortunate that the courts have decided to abandon basic principles of the Constitution and of science by legalizing the senseless taking of human life by abortion. What is even more tragic is that many groups, which have termed themselves as "advocates for women," have promoted abortion rights as the premiere principle of women's rights. I find it further appalling that the federal government is forcing states to fund abortions with taxpayer funds by justifying abortion as a necessary function for the reproductive health of women.

I believe that if the Supreme Court continues to uphold the wrong decision made in Roe v. Wade, Congress should enact laws that would disallow abortion, except in very extreme circumstances. At the very least, Congress should prohibit the government from funding abortion. However, before we can pass laws forbidding abortion, we must change the dynamic of the debate by educating the American public to favor the protection of life at its natural beginning—the point of conception. I think that when all Americans, including many women who are confused about the issue, begin to realize the serious ramifications of abortion, they will strongly support the need to protect the sanctity of life.

My position in representing the people of Idaho has always been, and will continue to be, guided by the conviction that abortion is wrong and should only be considered in cases of criminal rape, incest, or when the mother's life is in imminent danger.

STATEMENT OF SENATOR JOHN P. EAST (R-NC), JANUARY 16, 1986

Regarding abortion, the source of the current controversy over abortion, of course, is the 1973 Roe v. Wade decision of the United States Supreme Court. The Roe ruling made two principal determinations. First, Roe recognized a federal constitutional right to an abortion throughout pregnancy for virtually any reason. Second, Roe determined that the unborn child is not a "person" under the Fourteenth Amendment to the U.S. Constitution, which guarantees a right to life. I disagree with both of these aspects of the Roe decision.

The Constitution does not make any explicit or implicit reference to abortion, much less guarantee a right to it. Hence, the Roe decision, which invalidated the duly enacted abortion laws of all 50 states, was an unconstitutional act on the part of the Court. It is incumbent upon the Court to recognize its error and overrule the Roe recognition of a right to abortion….

Legislative history reveals that the framers of the Fourteenth Amendment clearly intended for its provisions to protect all human beings. Since unborn children are human beings, I believe that the Fourteenth Amendment protects their right to live. The Court ought to overrule Roe in this regard as well. Until it does so, I will continue to support congressional initiatives to provide unborn children with a constitutionally guaranteed right to life.

STATEMENT OF SENATOR STROM THURMOND (R-SC), BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, SENATE JUDICIARY COMMITTEE, FEBRUARY 28, 1983

… First, whatever one's personal views about abortion, the plain fact is that Roe v. Wade represented one of the most blatant exercises in judicial activism in the history of this country. In one fell swoop, seven men on the Court reinterpreted what had been the law of the land for nearly two centuries and overturned the laws adopted by the legislatures in every one of the 50 states.

Second, in Roe v. Wade, seven men on the Court established as a new law of the land in the area of abortion a policy significantly more permissive of abortion than the policy that had been freely adopted by the legislatures in every one of the 50 states.

Third, in Roe v. Wade, seven men on the Court established as a new law of the land a policy on abortion as liberal and permissive of abortion as any law in the entire world. There are absolutely no serious legal or constitutional barriers to a person obtaining an abortion for any reason, at any stage of her pregnancy.

Fourth, since Roe v. Wade, we have had a national policy on abortion bitterly opposed by large numbers of individuals in this country who are totally without any recourse to their elected representatives. This is not how public policy is developed in a free society on issues of this bitterness and divisiveness.

Fifth, Roe v. Wade, itself, amended the Constitution of the United States in reading in a policy of abortion at odds with its language, at odds with its legislative history, and at odds with the long-standing practices of the states in this country.

STATEMENT OF PROFESSOR LYNN WARDLE, BRIGHAM YOUNG UNIVERSITY SCHOOL OF LAW, BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, SENATE JUDICIARY COMMITTEE, FEBRUARY 28, 1983

I appear before the subcommittee today to recommend that it propose and the Senate pass an amendment to the Constitution that would reverse Roe v. Wade ….

I would like to rephrase the issue. I think the question is whether the right of the people to protect human life is to be abridged. A decade has passed since Roe v. Wade was decided, a decade in which federal courts have faced a flood of abortion litigation, in which Congress has faced a deluge of abortion proposals, and in which the number of abortions performed annually has reached in excess of 1.5 million, a total approaching 15 million since Roe v. Wade.

Moreover, as many commentators had predicted, since Roe, there has been a profound and appalling increase in the kinds of inhumane acts that manifest a disregard for and involve even the destruction of other forms of unwanted, defenseless human life. Not only are human beings who bear the stigma of being labeled defective because of some potential physical or mental condition being ruthlessly destroyed before birth, but since Roe, they have increasingly become the victims of infanticide and selective nontreatment, to use the euphemism.

… While these practical and doctrinal excesses are approaching shocking extremes, the Supreme Court has refused to reconsider Roe v. Wade. Thus, at this time, 10 years after that disaster, I feel the sentiments of the English statesman and orator, Edmund Burke, who is reported to have said, "An event is happening about which it is difficult to speak, but about which it is impossible to remain silent." I believe the time has come for Congress to restore the right of the people to protect all human life.

It is now painfully apparent that the constitutionalization of abortion is a slippery slope, leading ever downward into increasingly more detailed technical questions. As the courts have become increasingly more involved in supervising the enactment and enforcement of abortion regulations, the fundamental question keeps reappearing—why should the courts, rather than state legislatures, be deciding these issues? The answer, of course, is that they should not.

The exercise of judicial power to invalidate legislation affects the relationship between the coequal branches of government. The assumption by the judiciary of a major role in supervising abortion regulation represents a substantial shift in the delicate balance of power.

I believe that the issue of abortion is the type of issue that should appropriately be left to legislative resolution. When employed unwisely or unnecessarily, the Supreme Court's power to declare legislative acts unconstitutional constitutes a threat to the continued effectiveness of the federal courts as well as to the stability of our democratic system. After all, there is some irony that a people who are self-governing cannot establish the laws dealing with such a fundamental question as the regulation and legality of abortion….