Rewriting Roe v. Wade

Presented in this essay are suggestions for rewriting Roe vs. Wade, the case that resulted in the establishment of a constitutional right to abortion. Essentially, the argument is 1 of equal protection. It is suggested that abortion be viewed as presenting a problem that might be termed "the law of samaritanism" -- the law regarding obligations imposed on certain individuals to provide assistance to others. In American law it is a deeply rooted principle that an individual is ordinarily not required to volunteer assistance to another individual who is in danger or in need of aid. The argument presented maintains that if a pregnant woman is required to carry the fetus to term and deliver it, then she is being compelled to be a Good Samaritan. It is argued further that if the generally limited scope of obligations of samaritanism under current law are considered, and the special nature of the burdens imposed on pregnant women by laws forbidding abortion are also considered, the obvious conclusion is that the equal protection clause forbids imposition of these burdens on pregnant women. The argument is developed in a lengthy form and calls for an extended discussion of the law of samaritanism. The uniqueness of the abortion case also creates problems as the equal protection argument is approached, and an approach to equal protection questions is sketched.     

The legal status of abortion in the states if Roe v. Wade is overruled

This article explores the legal status of abortion in the States if the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Although an overruling decision eventually could have a significant effect on the legal status of abortion, the immediate impact of such a decision would be far more modest than most commentators-on both sides of the issue-believe. More than two-thirds of the States have repealed their pre-Roe laws or have amended those laws to conform to Roe v. Wade, which allows abortion for any reason before viability and for virtually any reason after viability. Pre-Roe laws that have been expressly repealed would not be revived by the overruling of Roe. Only three States that repealed their pre-Roe laws (or amended them to conform to Roe) have enacted post-Roe laws attempting to prohibit some or most abortions throughout pregnancy. Those laws have been declared unconstitutional by the federal courts and are not now enforceable. Of the less than one-third of the States that have retained their pre-Roe laws, most would be ineffective in prohibiting abortions. This is (1) because the laws, by their express terms or as interpreted, allow abortion on demand, for undefined health reasons or for a broad range of reasons (including mental health), or (2) because of state constitutional limitations. In yet other States, the pre-Roe laws prohibiting abortion may have been repealed by implication, due to the enactment of comprehensive post-Roe laws regulating abortion. In sum, no more than twelve States, and possibly as few as eight, would have enforceable laws on the books that would prohibit most abortions in the event Roe, Doe and Casey are overruled. In the other States (and the District of Columbia) abortion would be legal for most or all reasons throughout pregnancy. Although the long-term impact of reversing Roe could be quite dramatic, the author concludes that the immediate impact of such a decision would be very limited. This article is current through May 1st, 2007.     

The legal status of abortion in the States if Roe v. Wade is overruled

This article explores the legal status of abortion in the States if the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Although an overruling decision eventually could have a significant effect on the legal status of abortion, the immediate impact of such a decision would be far more modest than most commentators on both sides of the issue believe. More than two-thirds of the States have expressly repealed their pre-Roe laws or have amended those laws to conform to the trimester scheme of Roe v. Wade, which allows abortions for any reason before viability and for virtually any reason after viability. Those laws would not be revived by the overruling of Roe. Only a few of those States have enacted post-Roe laws that would prohibit most abortions if Roe were overruled. Slightly less than one-third of the States have not expressly repealed their pre-Roe laws. Many of those laws would notbe effective to prohibit abortion if Roe were overruled either because they allow abortion on demand, for undefined reasons of health or for mental health reasons; because enforcement would be precluded on state constitutional grounds; or because the pre-Roe laws prohibiting abortion have been repealed by implication with the enactment of post-Roe laws regulating abortion. In sum, no more than eleven States, and very possibly as few as eight, would have laws on the books that would prohibit most abortions if Roe were overruled.     

Roe v. Wade and the lesson of the pre-Roe case law

The attempt is made in this discussion to demonstrate that the Supreme Court in deciding the Roe v. Wade case should not have decided an abortion case when it did and that the opinion was almost destined to be bad in that the Court could find no persuasive rationale in the pre-Roe cases for each of the points in its decision. In 1973 political forces were actively debating abortion. Abortions had been prohibited by most states, except to save a woman's life, since the 19th century. In the 5 years immediately preceding Roe, 13 states had revised their statutes to resemble the Model Penal Code's provisions, which permitted abortions if the pregnancy threatened the woman's life, if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects. 4 states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. In short, in many states the political process had yet to decide on abortion, but Roe's rejection of Texas's statute voided almost every other state's statutes as well. Between 1970 and 1972, a flurry of constitutional challenges hit the courts. 3 years was hardly sufficient time for the judicial system to evolve sound analysis for such an emotionally charged issue as abortion. The Court could justifiably have allowed the dispute to simmer longer in the lower courts. There is some indication that a sounder case law might evolved if given time, but that was prevented by Roe. The Court could not find a rationale in 1973, but it decided anyway, suggesting a legislative rather than a judicial process.