Erin Daly reflects on Roe v. Wade at 40

DalyRoe put America into a quandary — a political, constitutional, and moral quandary — that it has not emerged from in the 40 years since the decision was announced. Roe concerned a narrow but important question: does the due process clause of the fourteenth amendment permit a state to ban abortion except for the purpose of saving the pregnant person’s life? A simple question to ask, but an almost impossible one to answer.


It took Justice Blackmun more than 16,000 words to try to resolve the controversy, and still he probably fueled the flames more than he quelled them. He consulted Greek philosophic traditions, American medical practice, the evolving legislative positions in the states, and any other oracle he could find, ultimately reaching the conclusion that the constitution requires states to permit abortions “without interference from the states” from the outset of pregnancy until at least the third trimester. That conclusion earned him death threats for the remaining 20 years of his life.
As an elucidation of the constitutional right to privacy, the opinion stood on fairly solid ground: for decades, the court had held that the constitution protects a realm of privacy relating to intimate personal matters like marriage, procreation, and child-rearing; only 2 years earlier, in a case about contraception, the court had held that “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”


Referring to the incomparable physical burden of carrying a pregnancy to term and on the profound psychological burden of having a child as a result of rape or accident or otherwise, the Roe court held that the right to privacy was broad enough to encompass a woman’s decision to terminate a pregnancy.


But of course it is not such a simple thing to analogize other interests to abortion because is not like anything else. It is morally contested, because it necessarily implicates the moral-philosophical question of when life begins. And it is politically contested because, although everyone would like to see abortions disappear, views differ on how best to achieve that goal and what to do about unwanted pregnancies while we still live in a world of imperfect birth control. And it is constitutionally contested, because the constitution is cryptic on the subject of privacy and silent on the subject of abortion. For some, this compels the court to read the constitution to achieve our highest values, of liberty and dignity for all. For others, this counsels against nationalizing and constitutionalizing a phenomenon that is better left to local political forces, with the variations and accountability that that entails.


And so the quandary remains. We have never resolved the right to abortion because we have never resolved the larger constitutional question — how does the federal constitution protect the most important decisions we make as human beings? In other countries, the question is answered by recourse to a simple premise: a constitution’s fundamental purpose is to protect and promote the human dignity of each person; laws that limit a person’s ability to fulfill her potential presumptively violate human dignity and are to that extent invalid. But our constitutional tradition does not (yet) incorporate such fundamental values. And so, we continue to debate, protest, and contest the simple question of whether our constitution protects a woman’s right to choose to terminate a pregnancy.