Banning Abortion Unconstitutional Since 1973

The Implications of Overturning Roe v. Wade would he Complex and Difficult to Predict

by Ralph Scharnau
published with permission

On January 22, 1973, the Supreme Court ruled that a state law banning abortion except to save the life of the mother was unconstitutional under the Fourteenth Amendment.  Written by Justice Harry A. Blackmun, the 7-2 ruling articulated a constitutional right to privacy that included a woman’s choice to terminate a pregnancy.

Justice Blackmun and other jurists also noted two compelling reasons for government to regulate abortions.  One was protecting the mother’s health, and the other was protecting the potentiality of human life.  This meant that while women had a fundamental right to the procedure, the right was not unlimited as the government’s interests may under carefully defined circumstances outweigh the woman’s right to choose.

Overall, polling perspectives on abortion fall into three main groups.  The first group, only about 10 to 15 percent, think abortion should be illegal in all cases.  The second group, about 25 to 30 percent, want abortions to be legal in all cases   The third group constituting a majority of about 55 to 65 percent say they want abortion to be legal in some or most cases.

Texas recently passed a cruel new anti-abortion law.  It bans abortion beyond six weeks into pregnancy.  In addition, the law allows private citizens to sue anyone who helps abort a pregnancy, promising $10,000 for the abortion bounty hunters who prey upon the fears of desperate often low-income women.

Most pro-and anti-abortion proponents avoid taking extreme positions.  They overwhelmingly support or oppose abortion rights while simultaneously favoring some restrictions.

At Congressional hearings, university forums, classroom presentations, and street protests, abortion rhetoric often evokes emotionally charged atmospheres.  The anti-abortion and pro-choice adherents, vigorously present and defend their positions.

Men and women have indeed vigorously debated the pro-life and pro-choice positions.  But both sides historically have failed to adequately address women’s health issues.  And both sides have historically left out women of color.

Turning to the Roe decision, it stands as a landmark decision.  Roe may be one of the only Supreme Court cases that most Americans can identify.  In all likelihood, it’s more familiar to the average voter than the names of anyone currently serving on the Supreme Court.  Surprisingly, though, trying to understand what Americans think about abortion rights—and how they would react if Roe was reversed or reshaped—can feel like walking into a fog.

Asking Americans if Roe should be overruled, polls indicate a majority think the Supreme Court should keep the ruling in place.  But Americans’ views on abortion are hardly clear cut.  Majorities also support a variety of restrictions on abortion, including limits on abortion in the second trimester.

Another observer concludes that many folks just don’t like thinking or talking about abortion.  They want the country to find a quiet middle ground.

According to several polls, most Americans don’t have strong opinions on abortion.  Many have contradictory abortion views.  While others say their views are shaped by their life experiences.  Still others lack information on general reproductive health.   And many say the issue is not a high priority for them.

Fights over the future of abortion are now emerging at the state level.  Some states like Texas want further restrictions on access to abortion while others like California want to preserve or expand access.

The landmark Roe v. Wade decision remains one of the most controversial in the Court’s history.  Given the longstanding, intractable division on abortion, one might conclude that people hold murky views because they’re actively, even painfully, wrestling with the matter

Ralph Scharnau

February 1, 2022


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