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Overturning Roe v. Wade

Before the Decision

  • 30 States had rejected making abortion legal.
  • 16 States made some abortions legal through legislation or court action.
  • 4 States permitted unrestricted access to abortion.

What Roe Did

In one sweep, Roe invalidated abortion regulations in all 50 states. Roe mandates that States may not prohibit any abortions before “viability”. After viability, States may outlaw abortion unless it is necessary for the “preservation of the life or health of the mother”; however, a companion decision, Doe v. Bolton, decided the same day as Roe, effectively gutted any restrictions. Regulations on the procedure are permitted throughout pregnancy.

Doe v. Bolton  The Rest of the Story

In Doe v. Bolton, the Court defined health as encompassing “all factors – physical, emotional, psychological, familial, and the women’s age – relevant to the well-being of the patient.” Therefore, under Roe and Doe, a woman must be permitted to obtain an abortion through all nine months if it is for her “well-being”. The Court has never specifically ruled on whether laws prohibiting post-viability abortions are constitutional, and although many states have such laws, they are almost never enforced. Roe has been used to keep partial-birth abortions legal.

The Future of Roe

There are nine Justices on the Supreme Court. Five of those serving at the end of 2006 have expressly supported Roe. Two have indicated that they would overturn Roe. Two have not ruled on the issue. The President nominates new Justices, but they must be approved by the U.S. Senate.

What Happens When Roe is Overruled?

Only 7 States have laws prohibiting abortion which could be enforced. 12 States have state court decisions which would permit abortion even if Roe is overruled. The rest of the States would have to overcome significant barriers to enforce old laws or would have to enact new laws prohibiting abortion. If these States do nothing, abortion will remain legal.

Myths, Lies & How to Answer Them

“Roe v. Wade was what the American people wanted.”

Not at all. Roe v. Wade subverted the democratic process. In Roe, the U.S. Supreme Court was willing to use its judicial power to trample the legislative power – and the voice of the people – of all 50 States. A majority of the States rejected abortion. Public opinion was against it. It was a failed social experiment. Since democracy was not giving them what they wanted, pro-abortion forces turned to the courts. Abortion was forced on us by a Court in direct contradiction to the national will. That is why abortion still tears at our consciences and haunts our public policy.

“Women need abortion and Roe.”

Not only has Roe not helped women, if has hurt them. Except for abortion, Roe has never been used as a legal basis for establishing any rights for women. Not once. It hasn’t helped them in the workplace or with their families. Abortion exposes women to serious physical and psychological risks - breast cancer, miscarriage, perforated uterus, cervical laceration, infection, and post-abortion traumatic stress – to name only a few.

“Making abortion illegal will lead to massive numbers of deaths of women from illegal abortions”

There is no evidence that banning abortion will lead to more deaths for women. Hundreds of women have suffered and died from legal abortion since Roe. Poland, a nation of 40 million people, got rid of legalized abortion in 1993. The number of abortions fell from an average of 150,000 per year under the Communists to 124 in 2001. Records of all deaths due to pregnancy, abortion and childbirth indicate that the rate dropped from 70 in 1990 to 21 in 1999. With the exceptional level of medical care available in the U.S., there is no reason to think our experience will be worse.

“Criminalizing abortion will send women to jail.”

Overruling Roe will not make abortion illegal; it will just send it back to the states for the people to decide. And no one is interested in sending women to jail. Pro-life people have been helping women with unplanned pregnancies since the 1960’s. It is the abortionist who makes his or her money by taking advantage of women’s problems who belongs in jail. The goal of the pro-life movement is to re-awaken America to the absolute value of each innocent human life and to help women and their families, now and always.