John Culhane reflects on Roe v. Wade at 40

Copy of CulhaneRoe v. Wade continues to inspire debate for many reasons. Of course, there’s the abortion controversy itself, which is probably intractable. Then there’s the issue of whether the Supreme Court was wise to act when it did, given that states were beginning to expand the reproductive rights of women. But in my view, this focus on Roe v. Wade has diverted the conversation from the central issue: What kinds of laws, policies. and social norms will best protect women’s autonomy when it comes to making very hard choices about whether and when to reproduce?


Emboldened by a later Supreme Court case, Planned Parenthood v. Casey, many states have enacted laws that test – many would say defy – the rule that no restriction on abortion can impose “an undue burden” on a woman’s decision to terminate her pregnancy. These laws are by now legion, and growing with each new session of many state legislatures. States have required women to listen to the fetal heartbeat, imposed needless regulations on the clinics that provide reproductive services, and decided for the women that even serious birth defects will not be a valid reason to abort. Some of the laws directly undermine the physician-patient relationship, too. Doctors may be required to perform needlessly intrusive ultrasound procedures, describe fetal development against the woman’s wishes, or inform women of risks (such as the purported abortion-breast cancer link) that aren’t supported by the best evidence. The federal government has also gotten involved, restricting the use of federal money for abortion services and denying women the right to terminate their pregnancies on military bases, even when they are stationed in parts of the world where obtaining a safe abortion might be impossible.


These proposals and enactments do two things: they restrict or in some times deny the rights the Supreme Court has found embedded in the constitutional guarantees of privacy and liberty, and – what’s less well appreciated – they chip away at the idea that a woman’s choices in this area are entitled to respect and dignity, in part by creating rules for her medical care that can instead undermine her physical and emotional health.


In short, forty years after Roe, it seems as though we’re moving further from respecting women’s rights, not closer to doing so. While several candidates for national office were harmed by their comments about rape, in fact several national legislative leaders share the view that not even rape justifies abortion. The controversy over whether corporations should be required to offer birth control services to their employees through their insurance plans has been framed as an issue of religious freedom, often overlooking the real-world effects on women’s lives and dignity. And many poor women find that the access to safe and legal abortion promised by Roe is simply not available to them.


In all these cases, opposition to abortion has been transmuted into something much darker. In the off-chance I’m still alive in another forty years, let’s hope that Roe’s promise will have been more nearly achieved.