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Home » What did Roe do?

What did Roe do?

The New Neo Posted on by

There’s so much confusion on this issue that I thought I’d try to clarify. Much of this confusion is purposely sowed by fearmongers on the left who want people to be afraid that overruling Roe will start a cascade of events that will take away long-established rights such as that of interracial marriage. It’s an absurd assertion but a very useful one for the left because it preys on (and furthers) the ignorance of the American public.

So what did Roe do? It didn’t “legalize” abortion, not exactly, because abortion was already legal in any state that had voted to make it legal. By the time Roe was decided, abortion already had been legalized under certain conditions in twenty states, and in Hawaii, New York, California, Alaska, and Washington had few restrictions. Any state could have legalized abortion through the usual channels. So abortion was either legal or illegal as the states decided for themselves and under the restrictions they chose.

What Roe did had to do with which government entity was allowed to decide the question: the states or the federal government. In Roe, a branch of the federal government (SCOTUS) ruled that abortion was a right that states could not deny their citizens. Abortion was declared to be a federally and constitutionally established right. To rule that way, the SCOTUS justices had to find a constitutional right that had not been felt to exist before, and that was the aspect of the case that even some pro-abortion people found troubling. Certainly those who were against abortion found it very troubling.

And that is the basis for the Alito draft, as I understand it (having only read summaries and discussions of it): that abortion is not a constitutional right and that states can therefore decide for themselves, as before. It seems rather simple and obvious to me, but as I’ve said, it’s in the interests of the pro-abortion crowd – and especially the left – to lie about it and make a repeal seem much more restrictive than it is.

If you think about it, though, Alito’s draft is indeed “pro-Choice” – although it locates the “choice” in the states rather than in each individual. Roe took away that choice from the states and gave it to the individual, but made it mandatory that states allow abortion. Also, since abortion would remain legal post-Roe in many states, women who want abortions will retain the choice to get them in other states that allow it.

However, it’s likely that such a situation will make it more difficult for poorer women to get them; travel is more of a hardship on the poor. I predict that, as before, an illegal abortion network will therefore spring up in states that don’t allow it legally. That will endanger the lives of women somewhat, because of the lack of controls, and that troubles me. However, it’s not a reason to keep Roe in place. Roe was always a bad decision that set a bad precedent, and it’s regrettable that SCOTUS decided to go ahead with it rather than waiting for the states to continue to sort it out.

Comments

What did <i>Roe</i> do? — 45 Comments

  1. One of the great challenges of this time in history is deciphering the liars from the ignoramuses.

  2. Very well summarized. My sentiments exactly. Regardless of one’s view on if abortion should be legal (and if so, under what circumstances), Roe was a poorly reasoned decision. In sober moments, some liberals realize as much. But genuine liberals are few and far between these days, particularly amongst the elite in government, academia and the MSM.

    The hysteria of the last week has been utterly disappointing and…utterly predictable. Such is to be expected from individuals who largely inhabit virtual space (social media) and Netflix/HBO, etc over reality. When you spend much of your time on leftist Twitter and Facebook feeds, it’s easy to believe cops are killing unarmed black men by the thousands every year. And when you binge watch ‘Handmaid’s Tale’ over and over, it’s easy to believe any change in abortion access will bring about that dystopia.

  4. What Roe really did was to ban any limits on abortion, which is why the left has kept pushing until we have gotten to infanticide.

  5. Mike K:

    No, that’s not what Roe really did. Here’s what Roe did:

    It also ruled that this right is not absolute and must be balanced against governments’ interests in protecting women’s health and prenatal life. The Court resolved this balancing test by tying state regulation of abortion to the three trimesters of pregnancy: during the first trimester, governments could not prohibit abortions at all; during the second trimester, governments could require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother.

    A later SCOTUS decision, Casey, was decided in 1992. It changed that somewhat:

    In Casey, the Court reaffirmed Roe’s holding that a woman’s right to choose to have an abortion is constitutionally protected, but abandoned Roe’s trimester framework in favor of a standard based on fetal viability and overruled the strict scrutiny standard for reviewing abortion restrictions.

  6. I’ve read Alito’s opinion in its entirety. It’s simple and straightforward and answers both parts of Roe and Casey: (1) The Roe opinion was egregiously wrong from the outset, and established what looked more like legislation than adjudication out of whole cloth; and (2) Casey’s attempt to salvage the holding without the same rationale on the basis of stare decisis was equally unpersuasive. None of the traditional factors that militate toward stare decisis applied. There’s a reason no one is attacking the contents of the opinion.

  7. “There’s a reason no one is attacking the contents of the opinion.”

    Heh. Just so, as we likewise think there’s a reason people don’t willingly walk into running woodchippers.

  8. Griffin…I’m starting to go with “and” a lot more frequently.
    Some of the biggest liars are also huge ignoramuses.
    The sentence works the other way around too.
    I find that makes it easier to spot them.

  9. “In Roe, a branch of the federal government (SCOTUS) ruled that abortion was a right that states could not deny their citizens.” neo

    In demanding that there be little to no limits to abortion, Pro’Choice’ advocates are essentially demanding ‘freedom’ from the existential reality of possible consequence.

    Self-interest above all. They seek a “get out of jail” card.

    In their heart of hearts, they know it’s a baby. Revealed by the differing labels they apply when pregnancy is welcome or unwelcome.

    Which is why they must insist that the developing life within is essentially an organ until birth, rather than a temporary resident.

    Lying, whether for gain or avoidance, always involves a perceived benefit.

  10. it did more than that, it turned doctors into takers of life, rather than givers, it opened a breach between men and women, it struck at the foundation of the nuclear family, that the State sought quickly to fill, hence the reaction of a
    wounded creature

  11. neo, I understand what the arguments have said and, perhaps, Casey modified what Roe said but the real effect, in my opinion, was a ban on states limiting it. The Democrats, as late as Bill Clinton, tried to pretend it was not unlimited abortion but that is what it was. It is only recently that infanticide has been publicly advocated but Obama voted when he was a state Senator to stop attempts to save babies that survived abortion. There is a black woman running for Congress as a Republican who survived an abortion.

  13. Mike K:

    In your earlier comment, you said it was Roe. But it was not Roe that did that. I was responding about that.

  14. miguel cervantes:

    All those things were present before Roe. There was plenty of abortion, both legal and illegal, prior to that decision.

    And there have been many breaches between men and women from the beginning of time. Even before Roe, lots of women had abortions against male wishes or without even telling the man. Or they had babies against the man’s wish that they abort.

    These things were not at all simple even when I was growing up, when abortions were mostly illegal and yet occurred quite frequently.

  15. I think one of the biggest negative consequences of Roe was that it stopped the process of reconciliation between the extreme positions. The vast majority of people oppose some forms of abortion (partial birth and abortions for sex selection for example) but don’t want a constitutional amendment that bans all abortion.

    The absence of Roe wouldn’t eliminate differences of opinion on abortion, the issue is just too sensitive, but it would have put us in a place where most people would be satisfied that a reasonable compromise had been reached.

  16. “I think one of the biggest negative consequences of Roe was that it stopped the process of reconciliation between the extreme positions.”

    Gregory H…IMO…and it is an opinion…that’s a feature not a flaw in the critical Marxist theorizing that captured our Western institutions from the end of WWI to our current post-truth era. Think Gramsci & the idea that all institutions are designed to uphold the command & control structure (hegemony) of the privileged. I’m of the mind that polarization into extremes was the point. Reconciliation of the extremes would only have upheld the privileges of the already privileged.

    YMMV…and I certainly could be mistaken.

  17. I did read the whole opinion (draft) and I recommended it.
    His reasoning behind why abortion should never have been found to be a “fundamental right” for constitutional law purposes is very detailed and convincing.
    I’m seeing people say that the leak was a good thing because nine people should not be making laws for the rest of the nation… but that’s actually the opposite of what they’re doing.
    #yougoalito

  18. The Roe V Wade decision was made by 9, unelected white patriarchs – the very description of white supremacy. Who knew?

  19. Thurgood Marshall joined the SCOTUS in 1967. Roe v Wade was decided in 1973. Nonetheless, I still blame “white supremacy.” Not. 🙂

    Happy Mothers Day!

    Not Happy Birthing Persons Day.

  20. Mike K, your first comment was absolutely 100% correct.

    Neo tried to claim otherwise without comprehending the consequences found in the quotes highlighted… by Neo:

    “… exceptions for cases when they were necessary to save the life or health of the mother.”

    That was the back door to abortion anywhere anytime.

  21. “I predict that, as before, an illegal abortion network will therefore spring up in states that don’t allow it legally”.

    Your assumption (correct, I fear) is based on historical fact, but … it is in no way, shape or form a justification because that was in an era in which there were no alternative (other than not acting irresponsibly). Now, and for 50 years, there is cheap, or often free, easy, multiple different prophylactic methods available (if only women could be trusted to actually bother to use them – but why bother when there are no consequences and it’s always someone else’s fault? We’ll skip over the whole profiting from man or State with child-support and welfare as explanation though).

    The entire abortion industry (for that is what it is, and multi-billion dollar one at that) is based on women’s demands to remove any, even an inkling, of agency, responsibility or consequences from … ‘them’ (witness the straw-man arguments of vanishingly small number of rape/incest/medical necessity/some man ‘forcing’ a woman when, as anyone with even the most limited knowledge knows, the vast, overwhelming majority of abortions are performed on women who choose to risk, or get, pregnant then decide to ‘get rid of it’, against or even without informing any man, for ‘convenience’).

    You get more of what you subsidize. One could argue (correctly I suspect) that it was those prophylactics (especially ‘The Pill’) that led to the current promiscuity (read: depravity and demeaning of women … at least for 80% of women and those 20% of ‘high status’ men, most men still don’t ‘get lucky’). The federally mandated availability of abortion did (predictably) lead to the massive growth in the numbers of abortions (in ‘legitimizing’ it it allowed the women to view it, as they patently do, as, not just acceptable, but as a right, a necessity and ‘good behavior’).

    What Roe did was remove any semblance of the right of the people to decide, and handed it to an unelected quango of vested interests in Washington (and their bought and paid for politicians and bureaucrats). Returning it to the States (equally susceptible to the manipulation of mercenary/ideological politicians, and dominated by urban collectives) will have little effect I fear.

    I wish for a return to both Constitutional and original interpretations, when it was a matter of conscience for the populace in State, County or even Township to decide, based on their faith, ethics and morals whether to allow it. It is too important a matter to ever allow (the self-selected ethically/morally challenged mercenary wh*res in) ‘government’ any involvement in it.

    Despite the rhetoric (lies) it was never as common as portrayed. Nor did women (even pre prophylactics) wish it to be so as … it was seen, at best, as a morally repugnant act needed in only the rarest and most dire circumstances, to be resorted to in desperation only. Now, it is seen as acceptable, common-place, unremarkable and even laudable (by the morally challenged)… so we get more of it. Roe did that!

  22. Jerven’s comments directly above are right on target.

    Contraception is widely and easily available. The fact that its availability is ignored points to the moral irresponsibility of those who then experience “unwanted” pregnancies.

  23. Roe, Roe, Roe your baby down the river Styx.

    There is no mystery in sex and conception. A woman, and man, have four choices: abstinence, prevention, adoption (“shared responsibility”), and compassion (“personal responsibility”), and self-defense through reconciliation. The wicked solution a.k.a. planned parent/hood a.k.a. reproductive rite, is neither a good nor exclusive choice.

    That said, there is an exquisite symmetry between the viability of baby at six weeks and granny, from the first heart beat to the last, from the evolution of a coherent nervous system to its disordered conclusion.

    Happy Mother’s Day… to a mother to be, a mother that is, and to granny ever after.

  24. Obama voted when he was a state Senator to stop attempts to save babies that survived abortion

    “Baby on Slab” is a socially progressive masterwork.

  25. I don’t get troubled in the least that women who want to kill their own babies might die from a procedure.

  27. Most of the comments here have somehow failed to note that the most egregious, most pernicious, most hateful aspect of the ruling is that M-2-F transgenders will no longer be able to get abortions on demand automatically, throughout the country. Legally, that is.

    Not quite sure how this slipped under the radar, but it’s a body blow to the faithful; and they will no doubt wreak vengeance for this huge and indelible insult to their dignity and personhood….

  28. Barry Meislin:

    🙂

    That is just another example of how much the non-trans cultural hegemony oppresses them! Cue “Stan” from “The Life of Brian?”

  31. Miguel:

    “Stan” decided that he was now “Loretta” IIRC. That was before the pronoun thing. They couldn’t anticipate Peak Stupidity, just like No One Expects The Spanish ….. aargh.

  32. women who want to kill their own babies might die from a procedure.

    For causes other then self-defense, indeed, self-abortion is a karmic irony.

  33. Jerven:

    You write:

    Despite the rhetoric (lies) it was never as common as portrayed. Nor did women (even pre prophylactics) wish it to be so as … it was seen, at best, as a morally repugnant act needed in only the rarest and most dire circumstances, to be resorted to in desperation only.

    It – abortion, that is – was actually quite common. I base this on the fact that more than half the women I know in my own pre-legal-abortion generation had illegal abortions. What’s more, I have read in memoirs from the early part of the 20th Century – memoirs that were not the least bit political but were merely memoirs of urban US life – that abortions were a very very common method of controlling the size of a family and that many women in the cities had one every year or two for the remainder of their reproductive life after having whatever number of children they wanted. It may have been different in rural areas, but it was hardly unusual in cities.

  34. MjM:

    Were you around back then? I was. Although some people did obtain abortions under that exception, plenty of people could not get abortions that way and had them illegally.

  35. Neo

    I can’t (obviously) comment on (or question) your personal experience but I have some trouble believing the assertion that “half” the woman in a city (or at least that of your abode) had an illegal abortion “one every year or two for the remainder of their reproductive life”. Such a demand would have used up most of the available health-care provision (every doctor would have been required to daily undertake multiple procedures), most of (considering the cost per) household budgets of even a well-to-do family (if not a noticeable percentage of the countries GDP) and … with the well known morbidity and mortality rates at the time, and remaining despite the hype, the injury/death toll would have been monumentally, horrifically (a literal decimation) staggering. Those aside, mostly because (most, the vast majority of) men will do (often literally) ‘anything’ for their loved ones (up to, and including, working themselves to death to provide for them), especially a spouse and such common, constant, repeated, universal risk to the very life of such a spouse would have caused an outcry, an immediate change in legislation (and failing that a few politicians dangling from lamp-posts), and it wouldn’t have been a (relatively) few women campaigning, it would have been every one of those women (and their husbands and fathers, etc.) … and it wasn’t (not even close).

    So? Maybe within your city, maybe within your social circle but generally, citywide, countrywide? There’s no evidence, and plenty to show it was much, much rarer an occurrence and generally ‘frowned upon’ (why else the common practice of ‘fallen women’, and doesn’t that term make you cringe, ‘visiting relatives’ to ensure their freedom from the extreme, and very real, reputation and associated outcomes associated with it. Such practices, gossip, and women’s lives ruined, or at least ‘limited’ necessitating ‘moving away’, by reputation remained very common here even until the 80’s).

    [If we’re, forgive the assumption about your age and/or ‘youthful inclinations’ (I made enough mistakes myself not to judge, and have the scars, a slight limp and some ‘interesting’ memories – though I ensured the negatives were destroyed), talking about that small window of that period of the ‘free love’ counter-culture prior to the easy availability of prophylactics … well, we’re certainly not talking either general culture, widespread or even ‘women in a stable relationship’ now are we? That a certain small sub-set of women ‘chose’ to act in a manner necessitating multiple abortions, is not quite all women genuinely “limiting family size” now is it?]

  36. Jerven:

    You misunderstood me and are conflating two things I said.

    I said that half the women I know have had an abortion. AN abortion, not many abortions. This involves women I know well and others I don’t know particularly well. It’s not a unitary bunch where all the women are similar, either.

    I also said that I have read in non-political memoirs from the early part of the 20th century that many urban woman (not half the population, but many) had abortion after abortion after abortion. This was when birth control was not available to most people.

    And although it’s the case that many men would do anything for their loved ones, there are also plenty who won’t and who are only too happy to not have any more children and to encourage women to have abortions. In addition, men don’t necessarily know that these women were pregnant or that they had abortions. It’s something a woman can keep secret if she can manage to get the money for an illegal abortion. Women also sometimes tried to self-abort, without the man knowing it.

    Abortion was far more common than you seem to think, I’m afraid.

  37. Neo

    The whole topic revolves around how Roe legitimized abortion, and how now they are so common as to be unremarkable (a fact I, and many others, despair). So, half your friends have had an abortion, and a sizeable percentage who wont admit it will have too. They did not specify when, I’d guess, and so it is just as (if not more) likely they had them later in life (as you say, when they have had a family and want no more) and thus probably post freely available prophylactics (and post Roe – a 21 year old then would be 70 now, so unless your peer-group is in its 80’s or 90’s, or they all had underage sex and an abortion, they probably all did so post).

    Women are considerably more ‘social animals’ than men and also more risk averse (for good biological and rational reasons) and as such they are both more susceptible to social pressure, and less likely to break the law (even if they disagree vehemently with it). Thus the ‘extremis’ that they must face to overcome both guaranteed stigma, being ostracized, as well as arrest was considerable, yet it did (unfortunately) regularly occur, but it was not common. Also, I can’t think of any memoirs (please cite) where (pre legalization) any woman would admit having, let alone state it (except as gossip/rumor/common knowledge that the ‘lower classes/wrong types’ did so) as common.

    Equating behavior post legalization and widespread acceptance (by their peers) as reasonable with “it was always thus” is blatantly wrong. All the data shows this (excepting the fantasies of pro zealots), hospital, doctor, police, courts, adoption, death records, etc., etc., etc.. Unwanted pregnancies, and children, did happen but with stigma et al it was still considerably (massively so) less than any year since.

    [I stand in awe of the mental gymnastics required by most women, who blame abortion (and every other ill that they choose to engage in) on men forcing them (which did occur, but as tiny fraction compared to women choosing independently), then admitting most men only know if the woman chooses to inform him, and he has no say even if informed. I’m surprised you all don’t dislocate something.]

    But … your blog, your rules, and so I will withdraw.

  39. Despite abortion on demand a long-time reality when the horrors of Kermit Gosnell were uncovered, it was pretty much “crickets” in the MSM. Where were all the reporters for the various media and social agencies that are so concerned about women? No spotlight on the facilities that routinely perform late-term abortions. No, that would bring to the fore what is the crux issue of the horrors of abortion in our country that are as bad as any back-alley procedure, at least for the baby. Nothing to see over here. Just keep up the “safe, legal and rare” facade.

  40. As a non-lawyer, my understanding has been that even though Roe set up the elaborate trimester scheme for potential regulation, the companion but almost forgotten case Doe v Bolton decided on the same day immediately undercut any attempts at regulation by requiring that abortion be allowed in any case that threatened the health of the mother, defined in the opinion as

    “… all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient. All these factors may relate to health.”

    I haven’t looked at Alito’s opinion but I’ve not seen any references to either Casey or Dobbs overruling Doe though it maybe that Casey simply superseded it.

  42. Jerven:

    You may not know how old I am, but 98% of my acquaintances’ and friends’ abortions were pre-Roe and illegal. Illegal abortion was very common in cities; I don’t know much about rural areas. They came from many many different cities, by the way.

    So once again you’re operating on the wrong premises.

    What’s more, I did not say that any of those women blamed men. They did not, actually. But I know other people – not well, and/or through work or study – whose boyfriends and/or husbands insisted on abortions and the women didn’t necessarily want them. If you’re not aware of that you’re living in a dreamworld.

    Nor does any of this have to do with my own history. I always had a horror of abortion and used birth control quite assiduously. Fortunately I never had an unwanted pregnancy, only a wanted one.

  43. Primetime Stein, youtube “The Arlington City Council Abortion Freestyle” is insane and truly macabre.

    It is sad that an unwanted pregnancy drives some women to desperation, but it doesn’t alter the fact that there is life, a creation of God sent to the world.

  44. You may not know how old I am, but 98% of my acquaintances’ and friends’ abortions were pre-Roe and illegal. Illegal abortion was very common in cities; I don’t know much about rural areas.

    I think your circle of friends may be peculiar. My mother, whose social circle was composed of women whose fertility ran out around 1970, had not one friend who admitted to having had an abortion. (My mother was a gregarious women with dozens of friends).

  45. Women are considerably more ‘social animals’ than men

    They aren’t. They tend to be more other-directed and to have friendships that are more conversation-based as opposed to activity-based.

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