By illegally publishing the draft decision of the Supreme Court several months before the final version was released, someone within the Court unleashed a firestorm of controversy in the United States. Demonstrations and counter-demonstrations erupted all over the country. The homes of the justices believed to have supported the repeal of the 1973 decision in Roe v. Wade were picketed. An alleged attempt was made on the life of one of them.
When the final opinion was published on June 24, fierce outrage was expressed by radical advocates of abortion on demand. Yet there’s reason to believe that, after the shouting has died down, the repeal of the 1973 decision will actually serve to defuse the issue and heal a deep and enduring wound in the American body politic that has become only more inflamed over the past half-century. That decision was nothing less than an “exercise of raw judicial power,” in the words of dissenting Justice Byron White at the time, and it sparked a national controversy that has embittered America’s political culture ever since.
Anyone who cares about the abortion issue ought to read the more than 100-page decision. It’s a scathing, uncompromising denunciation of Roe v. Wade as untenable on legal, constitutional, and rational grounds. It condemns the authors of the 1973 decision for much irrelevant discussion of ancient Greek and Roman policies respecting induced abortion, while saying hardly a word about the legislation in every U.S. state in the 19th and early 20th centuries. From reading the 1973 decision, no one would know that every single U.S. state treated induced abortion as a crime, with only a few exceptions.
The current justices indict their predecessors for the egregious error of asserting that abortion was not a common-law crime. In fact, all the leading authorities on the common law—Bracton, Coke, Hale, Blackstone, “and a wealth of other authority”—treated post-quickening abortion as a crime.
The authors of the current decision also point out that using viability as the criterion for when the state has a right to impose legal restrictions on abortion is unsustainable. Viability, meaning the age at which the unborn child can survive outside the womb is constantly shifting. In the 19th century it was 32-3 weeks. In 1973 it was defined as 28 weeks; today it’s 22-3 weeks, and it varies in different parts of the country, depending on the level of medical care to which a woman has access. Almost no other country uses viability as a criterion for when abortion is legal.
The majority argue persuasively that by returning the abortion decision to the states the court is striking a blow for democracy. Before 1973 every state had its own legislation on abortion. A few states had legalized it (virtually unconditionally)—New York, California, and the other west-coast states for example. The direct and immediate consequence of the current decision is that these states, and most of those on the northeast coast, will immediately re-enact their statutes allowing unlimited access to abortion.
The majority of American states, on the other hand, still had laws of varying degrees of restrictiveness before 1973. The immediate consequence of the current decision is that these states—such as Texas, Florida, Missouri, Mississippi, and a host of others, including all the Republican states, 28 in number—will very likely re-enact laws ranging from an outright ban on abortion to allowing abortion up to various times of gestation, ranging from 6 to 24 weeks, or to preserve the mother’s life or health, or for psychological, or socio-economic reasons.
The reason why this will defuse the abortion issue is that each state will soon have the law that reflects the wishes of its citizens. Abortion will not suddenly become unavailable. Backstreet abortions will not return in massive numbers. Women will not kill themselves by trying to abort with a coat hanger. A woman determined to abort her child will easily be able to travel to a neighboring state if her home state doesn’t allow the procedure.
