Roe at 42: An Unapologetically Pro-Abortion Rights View – posted 1/18/2015
January 22 marks the 42nd anniversary of the Roe v Wade decision. It has to be one of the most controversial opinions ever released by the U.S. Supreme Court. As someone who is unapologetically pro-choice, I wanted to offer a few comments on the occasion.
I think the Court basically got it right on Roe. Justice Harry Blackmun, the author of Roe, did what a good judge should do. He carefully weighed the competing interests. While many quibble about the grounds he used to decide the case, the Court ruled abortion was legal until viability which was defined as 24 weeks.
Most importantly, Roe established abortion as a decision protected by a right to personal privacy. The decision prevented states from subjecting women and their doctors to criminal sanctions in the first trimester. While restrictions on abortion could be imposed later, states could not ever jeopardize a woman’s life or health.
Justice Blackmun saw the case as necessary for the emancipation of women in America. He knew because he had lived through the era of coathanger and back alley abortions.
While there has always been opposition to abortion rights especially from fundamentalist Christians and the hierarchy of the Catholic Church, in the last four years, the anti-abortion movement has stepped it up. Their chip away strategy has been effective.
The strategy is multi-pronged. Try and ban abortion after 20 weeks; lengthen waiting periods; force clinics to close by admitting privileges law and burdensome regulations; attack Planned Parenthood and contraception;use religious exemptions to fight insurance coverage; and use ballot initiatives to try and add personhood amendments to state constitutions.
According to the Guttmacher Institute, in the last four years, states have enacted 231 abortion restrictions. Contrary to the spirit of Roe, in parts of the country, especially the South, it has become increasingly difficult to find an abortion provider. In this connection, the names Dr. Barnet Slepian and Dr. George Tiller come to mind. The murder campaign against abortion providers by extreme elements of the pro-life movement would, at the least, cause pause for doctors who might consider performing abortions.
I probably come at this issue from a different angle than many. Before I became a judge, I spent my professional life representing poor people in civil matters as a legal aid attorney. For 25 years, I represented, among others, unemployed workers, disability claimants, debtors facing bankruptcy, domestic violence victims and tenants facing eviction. These experiences educated me about the extent of poverty. I wish I could say we are doing better than we are. I think our efforts to lessen poverty have been dismally inadequate. We have been going backwards for a long time now.
In this context, I find all the concern about the unborn as phony sanctimony. We don’t even care about the born. It is hard to take seriously any concern for the unborn when, as a society, we treat those that make it into this world in such a trashy way. Take a good look around. There is no shortage of homelessness, hunger, lack of access to health care, child abuse and child neglect. The traumas visited upon millions of born children in America are daily and significant.
We have tons of people who are falling through our shredded safety net who are living on almost nothing, maybe food stamps. Unfortunately, they are invisible. Invariably, the same politicians who cry crocodile tears about the unborn are the first to cut needed social programs.
In my opinion, the person with the clearest view of these matters was not a lawyer or a judge. It was the late comedian, George Carlin. To quote Carlin:
“Boy, these conservatives are really something aren’t they? They’re all in favor of the unborn. They will do anything for the unborn. But once you’re born, you’re on your own. Pro-life conservatives are obsessed with the fetus from conception to nine months. After that, they don’t want to know about you. They don’t want to hear from you. No nothing. No neonatal care, no daycare, no Head Start, no school lunch, no food stamps, no welfare, no nothing. If your’re preborn, you’re fine; if you’re preschool, you’re f—ed”.
Only a black sense of humor can appreciate the irony of so much concern for xygotes and early fetuses. And yet, many anti-abortion advocates see an equivalence between fully grown adults and the potential life of a tiny clump of cells.
This is no exaggeration. Consider the Alabama law which forces pregnant teens seeking an abortion to first receive parental consent. If the teen cannot get parental consent, the teen is put on trial and the state appoints counsel to defend the unborn fetus. Alabama has no statewide public defender program. So there fetuses get counsel but adults who need constitutionally guaranteed legal representation do not.
I am hardly alone in submitting that only the women facing the abortion decision should make that choice. No one else, not the spouse or boyfriend, not the state, not the anti-abortion advocate, has to live with the decision. It is the woman’s life and it is the height of presumption for others to force their values on the prospective mother. They do not live her life.
I also did want to say: enough with the stupid attacks on Planned Parenthood. Anti-women health legislators in many states, including New Hampshire, have tried to eliminate funding for family planning. This jihad needs to stop. Planned Parenthood has provided absolutely critical health services which have reduced unintended pregnancy and teen pregnancy. So much of the work of Planned Parenthood is focused on things like cancer screening, breast exams, birth control and sex education, stuff that is unrelated to abortion. Yet that seems to be lost.
Sometimes it seems like the anti-abortion movement is motivated by an asexual 1950’s world view that wants to turn back the clock to a time before birth control and candid sex education. I find it shocking that such an anti-modern, religious-based perspective can gain so much ground in a pluralist and secular democracy.
To my pro-choice brothers and sisters out there and to the many who seem to take rights for granted, I say “wake up”. The anti-abortion movement is nothing if not persistent. Rights that are here today could be gone tomorrow.