Roe Vs. Wade -- The Pros, Cons Of Abortion Ruling That Divides Nation

The Supreme Court tomorrow hears arguments on Pennsylvania's restrictive abortion law. The justices are expected to reach a decision by July, and at the very least Roe vs. Wade - the landmark ruling that made abortion a fundamental right - faces erosion. Below, Aaron Epstein, a reporter for Knight-Ridder Newspapers, examines the pros and cons of the 1973 decision.

FOR: AT STAKE IS OUR PRIVACY

Choosing abortion or childbirth without government interference is a fundamental constitutional freedom and should have the maximum protection of our courts.

This right established in Roe vs. Wade flowed logically from a century of Supreme Court decisions recognizing that intimate choices affecting a person's body and family ties are largely beyond the reach of government.

The vexing legal problems of abortion simply can't be turned painlessly back to the states.

If Roe is overturned, states would produce a crazy quilt of inconsistent and discriminatory state regulations, thus replacing a uniform right with a host of new and bewildering legal dilemmas.

To subject women to politically volatile state restrictions on a matter as personal as abortion would infringe upon their right to privacy - and expose them to health risks of pregnancy and childbirth, which are greater than the risks associated with abortion.

Without Roe, what would happen? Some states would continue to allow abortions, luring thousands of pregnant women from elsewhere,

attracting lawless anti-abortion zealots and straining health-care systems further.

Other states would severely limit access to abortion or follow Louisiana, Utah and Guam in making criminals of law-abiding women and of doctors and nurses willing to participate in abortions. Resources would be diverted from the prosecution of crimes.

The real losers would be millions of low-income, young, rural or battered women. They would be too poor, too immature, too remote or too vulnerable to overcome the roadblocks in their own states or to travel to lawful abortion clinics in other states.

Many of them would seek illegal abortions, with grim results. In the year before Roe, 39 deaths from illegal abortions in the U.S. were reported, compared to only five deaths the next year.

Before Roe was decided 19 years ago, women used chlorine, turpentine, knitting needles, coat hangers and other dangerous means to abort their fetuses.

Three-fourths of all women who died of illegal abortions in the U.S. were "women of color," according to the NAACP. The death rate of women from racial minorities was 12 times greater than that of white women.

Unquestionably, the legalization of abortion has benefited millions of women. Not only is abortion far safer, but its availability also enables women to control the timing and size of their families, continue their education, enter the workforce and live more rewarding lives.

LEGAL THROUGHOUT HISTORY

Anti-abortion lawyers argue their view has prevailed throughout U.S. history. That is a myth.

On the contrary, 250 U.S. historians have concluded that abortion was lawful for much of U.S. history and that 19th-century restrictions were based on concerns that are no longer valid: the dangers of unsafe operations, the medical profession's desire to control the practice of medicine, concern for women's health, racial and ethnic purity, opposition to non-procreative sexual activity and a view of women as submissive reproductive vessels.

The need for legal consistency and stability, as reflected in the Supreme Court's traditional respect for its own precedents, also demands that Roe be retained.

Lower courts have found Roe's principles to be workable. Roe has been cited as legal authority in more than 3,500 cases. Twice in the 1980s, the Supreme Court re-examined and reaffirmed Roe.

As Planned Parenthood observed: "Never before has this court bestowed, then taken back, a fundamental right that has been a part of the settled rights and expectations of literally millions of Americans for nearly two decades."

Overruling Roe would undermine public confidence in the law, the Constitution and the Supreme Court. After all, nothing really has changed in the legal debate over abortion except the composition of the nation's highest court. --------------------------------------------------------------- AGAINST: IT'S NOT IN CONSTITUTION

It is time to recognize the ruling in Roe vs. Wade for what it was - an exercise in raw judicial power.

Nowhere in the Constitution is there any mention of abortion. Nor do America's history and traditions show that abortion is a fundamental right deserving of the highest protection by the Supreme Court.

On the contrary, English common law, on which American law is based, condemned abortion for centuries. Thirty of 37 states had adopted laws condemning or restricting abortion when the Fourteenth Amendment was passed in 1868. The abortion rights of Roe are based on that amendment's guarantee of "liberty."

Every state had an anti-abortion law on its books by 1900 except Kentucky. Even 19th century feminists and Planned Parenthood founder Margaret Sanger abhorred abortion. Twenty-one states had such laws when Roe was decided in 1973.

Anti-abortion laws were enacted in the 19th century primarily to protect unborn life. But even if they were motivated by other reasons considered obsolete today, that doesn't diminish the legitimate values underlying such laws in the modern era.

Nor is Roe a logical extension of the Supreme Court's privacy decisions. Those decisions protect the family, not pregnant women, against government intrusion.

Roe itself spelled out this distinction. "The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus. . . . The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which (earlier privacy cases) were . . . concerned," Justice Harry Blackmun wrote for the court majority in Roe.

EVEN ROE SETS LIMITS

It follows that a right of abortion, even if it exists, is undeserving of stringent constitutional protection. So-called pro-choice groups have misled women into believing that Roe gave them complete autonomy in abortion matters. It does not permit abortion on demand but requires women to yield to reasonable state regulations aimed at protecting health and safety. An adman-turned-politician is televising images of dead fetuses in his anti-abortion campaign for Congress. A 5

But no matter how strong a pregnant woman's claim to constitutional privacy may be, it is outweighed by the state's compelling interest in protecting fetal life throughout pregnancy. The line drawn by Roe at viability - the vague earliest moment when a fetus could survive outside the womb - is arbitrary. Potential life exists, after all, before as well as after a fetus is viable.

Using ultrasound signals, medical scientists are able to diagnose the condition of an unborn child. They may even be able to remove the child from its mother's womb for surgery and then return it to the womb to complete gestation.

So today it is unreasonable to consider the unborn child a mere extension of its mother. It is entitled to state protection as an independent person.

INSTABILITY IS DUE TO ROE

Life without Roe, we are told, would generate instability and uncertainty in the law. But Roe itself has done that. Its arbitrariness, including its spurious emphasis on viability and trimesters, has forced the federal courts to return to abortion issues over and over to assess the validity of state regulations, hundreds of which have been enacted since Roe.

The sensitive and divisive questions of abortion are moral, medical, social and political matters best left to the political process, not the ill-suited court system.

It should be recalled, too, that the Supreme Court has corrected its own erroneous decisions 214 times.

Sometimes it has even taken back a purported fundamental right. The court disavowed a similar mistake in its 1905 decision in Lochner vs. New York, which proclaimed a fundamental right to work free from such government restrictions as a maximum 60-hour week.

Moreover, the Supreme Court has already begun a retreat from Roe, leaving it, as Justice Felix Frankfurter said in another context, floating like "a derelict on the waters of the law." It should be formally abandoned.