The Roe v. Wade Decision Should not be Reconsidered

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The Roe v. Wade Decision Should not be Reconsidered


In 1992, I was elected as a Democratic pro-choice woman to represent the State of California. In poll after poll, Californians are consistently and overwhelmingly pro-choice. In fact, the most recent Field Poll, conducted in May, 2004, 71 percent of California voters support maintaining the current level of access to abortion services, or lessening existing restrictions. So do a majority of all Americans.

It would be very difficult for me to vote to confirm someone to the Supreme Court whom I knew would overturn Roe, and return our country to the days of the 1950s.

I remember what it was like then, when abortion was illegal. When I was a college student, I watched the passing of the plate to collect money so young women could go to Tijuana for an abortion. I knew a woman who ended her life because she was pregnant.

In the 1960s I served on the California Women's Board of Terms and Parole. California had an indeterminate sentence law then, and we actually sentenced women convicted of felonies in the State, and I sentenced women who were convicted of the crime of performing an illegal abortion. I saw what they did. I saw how they did it. And I saw the morbidity they left in their wake. I don't want to go back to those days.

Today we are faced with a divided court and a polarized country. It's clear the American people are divided about the course this country has taken. However, it is also clear, that Americans overwhelmingly believe that the government should not interfere with personal family decisionsespecially decisions about life and death.

These are private matters. They represent the most personal, moral, and spiritual choices an individual or family must make. It may be fruitful for some on the extremes to reduce these issues to rhetorical slogans for their own political advantage, but how the Court decides future cases could determine whether both the beginning-of-life and the end-of-life decisions remain private, or whether they could be subject to expensive litigation or perhaps the risk of prison.

I believe the choice is clear. Government should not be allowed to interfere in personal family decisions and overrule the most difficult choices a family can make. The question I have, is how John Roberts will react to these real life dilemmas when, and if, they come before him.


Last October 21, during debate on the so-called partial-birth abortion bill in the Senate, I, along with Senator Boxer, offered a resolution to this so-called partial-birth abortion bill. Our resolution was very simple. It stated that it was the sense of the Senate that Roe v. Wade was an appropriate decision and should not be repealed.

Our amendment barely passed, 51-47. Fifty-one said yes, Roe v. Wade was a good decision, it should not be overturned. Forty-seven Senators voted against that resolution, basically saying they did not agree with Roe v. Wade and that it should be overturned.

Every time the so-called partial-birth abortion bill, or any other antichoice legislation, comes to the Senate floor, I will offer my amendment, and there will be another vote on the Roe v. Wade resolution. People in the leadership know that. That is why they have not bothered to bring up any of their antichoice legislation since the last vote on October 21. They know I will offer my amendment every single time to lift their veil of moderation. So today I am challenging the House Republican leadership to allow a vote on our amendment. Let's let people know where their representatives stand on the basic issue of choice, the basic issue of Roe v. Wade. Because Roe v. Wade is the moderate, mainstream policy on which American women have come to rely. The Roe v. Wade vote in the Senate should send a wakeup call to all Americans that this policy is in jeopardy. They need to act to maintain it.

In this most personal of decisions, we need to trust women, not politicians, to make the choice. Whether it is the case in front of the Supreme Court or whether it is the vote in the Senate, the issue is simply this: Do you trust politicians, whether they are in a State government or in the Federal Government, to make this decision for women or do you trust women?

The bottom line is this: Roe v. Wade was an enlightened decision. It is moderate. It puts the basic decisions on reproductive health where it belongs, with the woman and not with the Government.

Today, as the Supreme Court, across the street, listens to the arguments on the Nebraska partial-birth abortion law, let us resolve that we are going to maintain a woman's basic right to choose, that we will not let the politicians take it over, that we will not return to the dark days of back-alley abortions and the criminalization of a woman's own right to choose her reproductive health.

That is what this issue is about.


Friday, January 22nd, 1999, marked the twenty-sixth anniversary of the Supreme Court decision in Roe v. Wade, which ensured the right of all women to make decisions concerning their reproductive health. For millions of women, Roe v. Wade has secured the constitutional right to seek access to safe and legal family planning and abortion services. Its impact on the health and safety of the lives of women cannot be overstated.

It is an outrage that, despite the Supreme Court's ruling, women still face barriers to seeking abortion without danger. States continue to find ways to restrict access by law, and even more troubling is the recent trend of clinic violence and the harassment of doctors and workers by anti-choice activists. I would like to highlight some cases from this past year of violence and threatening behavior in my home state of California.

In February, a bombing attempt was made on a family planning clinic in Vallejo. The briefcase that contained the alleged bomb was later discovered to be empty.

In April, a firebomb was thrown at a Planned Parenthood family planning clinic in San Diego, causing $5,000 in damages.

In July, a San Mateo family planning clinic worker was accused of physical assault by three anti-choice protestors. The protestors' injuries were not found by the police to warrant charges.

In San Diego, a clinic was vandalized, the buildings covered with the words "baby killer."

In September, the new Planned Parenthood head-quarters in Orange County faced over thirty chanting anti-choice protestors.

In Fairfield, a physician was harassed by anti-choice protestors as he arrived for work one morning.

These events are mirrored by others across the country and show that the fight for reproductive choice did not end with the Roe v. Wade decision. Twenty-six years ago, the Supreme Court held up the right to reproductive choice for women, yet it is still debated on the floor of the House of Representatives on a near daily basis. We must keep up the fight for a woman's right to choose. I remain committed to do all I can to preserve that choice.


In considering the question of abortion more than twenty-three years ago, the Supreme Court had to face an extremely difficult set of questions. Among these were the question[s] of how we are to assess the legal and moral claims of prenatal life, and how we are to balance the claims of the embryo or fetus against a woman's rights of autonomy and privacy in reproductive decision-making.

The issue of the moral or legal status of prenatal human life is particularly difficult. In approaching this issue, the court noted the wide diversity of philosophical and religious views on when life begins.

Obviously the Court could not privilege any one position and chose instead to look at the discernible interests of women and society in the matter of state involvement in regulating abortion and protecting prenatal life.

The Court also acted in the best positive American traditions of separation of church and state by allowing individuals and religious groups the freedom to determine how they themselves view and will decide to treat prenatal human life.

The justices made the decision that questions affecting the basic rights of women and involving a determination of the moral and legal status of prenatal life could not be left to the jurisdiction of local communities or the state. It is unthinkable that one state could come to a ruling on this matter, for example, not to protect the fetus, while another could rule differently.

The Court ruled properly, I believe, when it concluded that during the early phases of a pregnancy, maternal privacy and autonomy should take priority over any state interests in prenatal life.

[Some people] argue that even if the early embryo or fetus lacks many of the qualities we normally associate with full humanness, it possesses a unique genetic identity and potential and should be respected for this. However it is now known that, following conception, the embryo can spontaneously fission into two distinct persons, each having an identical genome or genetic blueprint. This is the way that identical twins develop in nature. More surprisingly, during the early phases of development, two distinct embryos can fuse together to create a single individual, with each genetic cell line integrating itself successfully in the resulting bodily structure. So it is not true that a unique human genetic identity is forged at conception or that we can unambiguously speak of individual persons as beginning at this time.

After the time of viability, when a fetus can live on its own in the world as a distinct and recognizable human being, the justices believed that it is reasonable to place greater restrictions on a woman's autonomy and privacy in the name of this growing human potential. [But] in cases of conflicts between the life and health of the mother and the life of the fetus, her well-being, as determined by competent medical authority, must come first.

After more than two decades the basic framework of Roe still makes sense.

As a society we will continue to argue about the specifics of abortion law and policy within this reasonable framework. My own personal view is that we should continue to adhere to the lines drawn by the Court in Roe, including the specific application of the trimester approach adopted there. I hold this view because I believe that nothing has happened since 1973 that compels us to change this approach. The age of viability has not changed dramatically during this period and medical technology has not advanced to the point that we can avoid the occasional need for tragic later-term decisions about the woman's health or the health of her child.


There is no doubt that a woman's right to decide whether or not to terminate a pregnancy is, at a minimum, a liberty interest protected by the due process clause. Any other conclusion would require the Court to overrule Griswold v. Connecticut protecting the right of married couples to use birth control. Restrictive abortion laws give the state control over a woman's basic choices about reproduction and family planning, an intrusion utterly incompatible with any meaningful concept of individual liberty.

It is no exaggeration to say that mandatory childbearing is a totalitarian intervention into a woman's life.

Congress could, moreover, conclude that restrictive abortion regulations have a clearly disproportionate impact on the equality and liberty interest of poor women, young women, and women of color. The kinds of restrictions that states are enacting even now, while Roe still hangs by a thread, are restrictions that have devastating consequences for women who are hostage to youth, poverty, and geography.

The fact is that in a federal system of open borders and freedom of interstate travel, no state can, in fact, enforce its restrictive abortion policy against its affluent and well-educated residents. What states may do is to enforce restrictive policy against those many of its residents who are vulnerable.

The notion of returning the abortion issue to the states would not actually result in different rules for residents of different states, as much as it would functionally produce different abortion policies for different economic and social classes.

The Congress can clearly take into account the fact that separate state policies would produce a national double standard for rich and poor, wholly incompatible with basic principles of justice. A woman's right to choose would be determined by the fortuitous happenstance of where she lived and whether she had the information and money to travel elsewhere, sometimes to a distant location, to obtain an abortion.


I would urge this committee to recall that, by and large, constitutional amendments are designed to confirm consensus, not create it. I know those who share my view on abortion cite the polls indicating that by a margin of 2-to-1, people in this country think that a woman ought to have the right to choose whether or not she wants to have an abortion.

There is no consensus in this country for a constitutional amendment to reverse Roe v. Wade .

I am hard-pressed to understand how those who are very strongly opposed to the right to choose, who are convinced that abortion is murder how they can vote for a states' rights amendment, which says in essence that murder is OK in some states and not in others.

I think we are all aware that a constitutional amendment would not actually prohibit abortion. Abortion was illegal in most places in this countryand in a few statesprior to Roe v. Wade. The difference is that many more women died, because the abortions were done under the most unsanitary conditions.

Any constitutional amendment we pass may make abortion illegal, but it will not make it impossible, and it will be a sorry day for women in this country if we force them back into the situation that we forced them into prior to Roe v. Wade.


No decision of the Supreme Court of the United States has meant more to the lives, the health, the wellbeing, the freedom and the dignity of women in this country than the decisions in Roe v. Wade.

Roe v. Wade ranks with other landmark decisions that have moved this nation on the path toward liberty and equality.

Roe v. Wade is not a departure from constitutional tradition, rather it applied to women some of the basic concepts upon which this nation was founded, and that is one of the reasons it is so difficult to undo.

It repudiated the historic disregard for the dignity and full personhood of women and the relegation of women to a separate sphere and second class citizenship. It brought legal theory, developed by and for men, closer to encompassing the existence of women.

Consider for a moment the relation of some of our most fundamental constitutional principles to the issue of compulsory pregnancy and childbearing.

We all hold as sacred the physical privacy of our homes. If we guard so jealously our physical environment and possession from intrusion by the state, how can we accord lesser status to the dominion and control over the physical self?

The First Amendment protects our thoughts, our beliefs, our verbal as well as symbolic expression. We can neither be restrained from speech nor forced to break silence. The Constitution protects these rights not only because of a utilitarian view that a marketplace of ideas served the public good but also because of the place of expression in the development of individual identity and the fulfillment of human aspirations.

Is not the commitment to bring a child into the world and to raise it through daily love, nurture and teaching an awesome form of expression, a reflection of each individual's beliefs, thoughts, identity, and the notion of what is meaningful? Men and women speak with their bodies on picket lines and in demonstrations. Women likewise speak in childbearing.

The First Amendment also demands that the state respect diverse beliefs and practices that involve worship, ritual, and decisions about everyday life. We recognize as religious, matters of life and death and of ultimate concern. The decision whether or not to bear a childlike objection to military serviceis a matter of conscientious dimension.

The religions and the people of this country are deeply divided over the propriety and, indeed, the necessity of abortion. While for some, any consideration of abortion is a grave evil, others hold that a pregnant woman has a religious and moral obligation to make a decision and to consider abortion rather than sacrifice her well-being, that of her family, or that of the incipient life. The right to abortion is thus rooted in the recognition that women, too, make conscientious decisions.

We deem fundamental also the principle enshrined in the Thirteenth Amendment that no person should be forced into involuntary servitude as a result either of private conspiracy or public law. Does this right not extend to women entitling her to say "no" to the unparalleled labor demanded by pregnancy, childbirth, and childbearingto say "no" to the expropriation of her body and service for the sake of another? If we strip away the sentimentalism that has rendered invisible the work of childbearing and childrearing, forced pregnancy must surely be recognized as a form of involuntary servitude.

What of the equality of women? Not to apply the foregoing fundamental constitutional principles to the question of the liberty to choose abortion is to deny women equal personhood and dignity in the most fundamental sense.

At the same time, to deny the right to abortion ensures that women will be excluded from full participation in society. Unexpected pregnancy and involuntary motherhood can preclude education, shatter work patterns and aspirations, and make organizational and political involvement impossible. A woman is no more biologically required to remain pregnant than a cardiac patient is to die of a treatable condition.

In sum, the criticism of Roe v. Wade has less to do with judicial excess than it does with a view of woman as less than a whole person under the Constitution, as someone whose self and aspirations can and should be legally subordinated to the service of others. The criticism reflects a failure to understand the gravity with which women view the responsibility of childbearing and the violence of forced pregnancy to human dignity.

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The Roe v. Wade Decision Should not be Reconsidered

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