Roe v. Wade: On Anniversary, Abortion Is out of the Spotlight

When George W. Bush took his flight from Washington, D.C., shortly after the swearing in of Barack Obama, he left behind a considerable legacy. His impact on one important issue, however, seems largely to have been replaced on the public agenda by other issues. Women's reproductive rights appear to have been lost along the campaign trail from the primaries through the general election. Little mention was given to abortion, and it continues to rank in the low single digits in poll after poll as an issue of importance to the American public.

Even what some call "the midnight rule"—a new regulation announced by the Bush administration in December to be put into effect (probably not accidentally) on Jan. 20, 2009—failed to garner much press. This new regulation, which appeared to be a final shot by President Bush at pro-choice activists after the appointments and confirmations of two ardently pro-life U.S. Supreme Court jurists—allows the protests of nearly anyone even tangentially related to the provision of women's health (receptionists, referral specialists, or even those who file insurance claims) to lead a public hospital to refuse to provide family planning services or abortions. (Late on January 20, the new White House chief of staff announced that the administration was putting all new Bush regulations "on hold" to allow them to be re-examined.)

Seeming public disinterest in abortion rights may have many causes. Continued access to birth control—in spite of its increasingly high price tag—the legalization of Plan B (the morning after pill), ongoing wars, and an economic depression may have caused abortion to cease to keep its place on the public agenda. As we look to the 36th anniversary of Ro e v. Wade , it is difficult to find print pages or media time when competing against the Rev. Martin Luther King Jr.'s birthday or the inauguration of President Obama.

In many ways, it is interesting that pro-choice activists still celebrate Roe. Since 1973, scores of state laws, Supreme Court decisions, and presidential directives have, in effect, overruled its basic principles. In 1965, in Griswold v. Connecticut , the U.S. Supreme Court ruled that several of the rights contained in various amendments in the Bill of Rights, when coupled with the Fourteenth Amendment's guarantee of due process of the laws, created a zone of privacy that prevented states from prohibiting physicians from counseling about or dispensing birth control to married couples. The shocker, however, came in 1973, when the Court, by a vote of 7 to 2, relied on Griswold's basic underpinnings to rule that a Texas law prohibiting abortions in most situations was unconstitutional, invalidating the laws of most states. Relying on a woman's right to privacy—in consultation with her physician—the majority opinion written by Associate Justice Harry Blackmun divided pregnancy into three terms. During the first term, the court put the decision to terminate a pregnancy as well as the reason for it clearly in the hands of the pregnant woman. In the second trimester, the interest of the state allowed for some regulation for the health of the mother, and by the third trimester, the court found the interest of the states sufficient to regulate or prohibit abortions except when they were necessary to save the " life or health of the mother. "

Roe quickly divided the country and mobilized interest groups and religious factions on both sides of the issue. In fact, by 1980, it led to a schism between the two political parties, forcing Republicans to the right and Democrats to the left. Roe also was the constant target of conservative groups, whether through the ballot box, legislation, or judicial challenges. By 1989, and then again in 1992, Roe experienced two major hits from the Supreme Court when a plurality of the justices ruled that abortion was no longer a fundamental right protected by a constitutional right to privacy. Instead, a majority of the court essentially divided pregnancy into semesters, ruling that states could enact abortion restrictions in the second trimester so long as they did not pose an undue burden to the woman. To date, the court has only found one "undue burden": states requiring a woman to obtain her husband's permission to undergo an abortion.

The court, state legislatures, the president, and even the U.S. Congress have now made Roe an interesting and important constitutional case to be read by law students. But far more important on this 36th anniversary is to remember what has been lost. Shortly after the resignation of Justice Sandra Day O'Connor, the court ruled that a federal law often referred to as the Partial Birth Abortion Ban Act (first vetoed by President Clinton and then gleefully signed into law by President Bush) was constitutional. It outlaws physicians from performing abortions when there is a possibility that the fetus may live outside of the womb, specifically noting the use of such procedures from 18 to 26 weeks gestation. These weeks fall squarely into Roe's now no longer relevant second trimester. Moreover, the court ruled that the health of the mother—so carefully considered in Roe—was no longer relevant.

So, with the court clearly supportive of pro-life legislation, pro-choice activists must turn to President Obama. Just as President Clinton rescinded several of President Bush's executive orders, President Obama acted decisively yesterday in reversing what is called the Mexico City policy, which prohibits any U.S. aid to international groups that provide abortion counseling. To continue to pursue a reproductive rights agenda, President Obama must take care to appoint federal judges with strong track records on the reproductive rights of women and also to work with the new Congress to pass legislation guaranteeing a woman's freedom of choice—in essence, codifying Roe. Without such bold action, the rights of women hang by but a single thread that may unweave the advances that women have achieved in all walks of life as they had control over their reproduction.

Karen O'Connor is Jonathan N. Helfat Distinguished Professor of Political Science and founder of the Women and Politics Institute at American University.