Erin Stoyell-Muholland, Staff Writer
Professor Amy Barrett, Professor of Law at the Notre Dame Law School, gave a talk entitled “Roe at 40: The Supreme Court, Abortion, and the Culture War that Followed” on January 18, 2013 in the Oak Room of South Dining Hall. This was a part of the “Professors for Lunch” series and this particular talk was hosted by Notre Dame’s Tocqueville Program for Inquiry Into Religion and the Constitutional Studies minor.
Over the course of the lunch, Barrett gave an overall background of the legal aspects of Roe v. Wade and how this has affected both the pro-life and pro-choice approaches toward the issue of abortion.
She started by giving the background under which Roe was decided. In 1973, the year that Roe was decided, states had already begun to liberalize abortion laws. Many states had begun to allow abortion in the cases of rape, incest, and health of the mother.
Roe challenged a Texas statute that only allowed abortions if the life of the mother was in danger. This is important to distinguish from the health of the mother which includes both physical and emotional health.
The Supreme Court overturned this statute on the basis of a right to privacy. The Constitution is not explicit on the right to privacy and this idea is drawn from the Fourteenth Amendment which says that “nor shall any State deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has interpreted this right to liberty as including the fundamental right to privacy.
Barrett said that one of the reasons that this decision was controversial was that in the past all cases dealing with the right to privacy drew from consensual situations such as marriage or the use of contraception. Abortion deals with the life of a child so it differs from the earlier case relating to privacy.
The ruling of Roe was extremely broad. It stated that there could be no restrictions on abortion in the first trimester and in the second and third trimesters it could be regulated by the states.
Another case that reached the Supreme Court was that of Doe v. Bolton which challenged the Georgia abortion law that had three restrictions on abortion. In order to obtain an abortion a woman had to have a judgment of a doctor that agreed with her decision to abort. This judgment had to be confirmed by two other physicians. Then the abortion had to be performed in an accredited hospital. This law was also struck down by the Supreme Court for being too restrictive.
The ruling of Roe called into question the institutional capacity of the Supreme Court. Those in favor of the court working in this fashion say that it protects the minority. Those who are against it hold that the Court is ill-suited to make these moral judgment calls when the subject matter is not explicitly stated in the Constitution.
Justice Byron White wrote in his dissenting opinion in Roe, “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”
This type of moral decision by the Court created a backlash against Roe by both the pro-life and pro-choice sides. Barrett said “In legal scholarship, this is called Roe Rage.” Pro-choice proponents believe that without Roe, abortion would have continued to become more accessible without the strong backlash that followed in the wake of Roe.
Casey v. Planned Parenthood was another key case in developing the abortion laws. This case cut back against Roe in deciding that the state has an interest in the life of the fetus. The court held true that before viability no restrictions may be imposed, but that regulations on abortion may be imposed as long as these regulations were not substantially infringe on the right to privacy expressed in Roe.
Barrett then expressed her opinion that it is very unlikely to overturn Roe no matter who sits on the Supreme Court. She then asked the question “If the Court doesn’t [overturn Roe], where does this leave the state?” In recent years, states have been passing more regulations in the interest of the fetus. This includes ultrasound laws, waiting periods, and parental consent.
The real battleground according to Barrett is over public funding. Currently the Hyde Amendment prohibits most public funding for abortions, but it is possible that this could be overturned.
Ultimately Barrett said, “whether or not Roe gets overturned is irrelevant.” If Roe is overturned, the question of abortion will return to the state level and could still be legal depending on the state.
Erin Stoyell-Mulholland is a sophomore business major who lives in fear of her loft. When she is not sleeping on the couch, she can be found organizing dance parties throughout her dorm. Contact her at firstname.lastname@example.org.