The Tragic Failure of Roe v. Wade: Why Abortion Should be Returned to the States.

• Author: Forsythe, Clarke D.
• Position: Abstracts

10 TEX. REV. L. & POL. 87 (Fall 2005).

For the past thirty-three years, the United States Supreme Court has acted as the self-appointed national abortion control board, making it difficult for states to exercise effective authority to regulate abortion, even when needed to protect the lives of women seeking abortions. In 1973, the Supreme Court in Roe v. Wade and Doe v. Bolton, empowered federal courts to strike down any state or federal abortion law prohibiting or regulating abortions. No state can effectively prohibit any abortion, at any time, for any reason. This was made clear in Stenberg v. Carhart in 2000, when the Supreme Court invalidated the laws of Nebraska and twenty-nine other states prohibiting a particularly grisly procedure called "partial-birth abortion." It was reaffirmed in 2004 when federal courts in California, Nebraska, and New York immediately enjoined the federal Partial Birth Abortion Ban Act of 2003.

In this article, the authors set forth four major legal and social reasons for ending the Court's role as the national abortion control board and returning the abortion issue to popular control at the state level. First, the Court's original decisions in Roe and Doe were unconstitutional usurpations of self-government, with no legitimate basis in substantive due process or constitutional law.

Second, medical and sociological data from the last thirty-three years demonstrate that the Court's new sociological rationale for the abortion right in Planned Parenthood of Southeastern Pennsylvania v. Casey has little basis in fact. Such reliance has, instead, resulted in significant physical and psychological damage to women. As one federal judge noted, "if courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's "choice" is far more risky and less beneficial ... than the Roe Court knew."

Third, the Court has failed in its self-appointed role as the national abortion control board. It has failed to monitor the negative impact of abortion--physical, psychological, relational--on women. It has failed to monitor both the substandard credentials of abortion providers and the negative, dangerous conditions in clinics. It failed to require fully informed consent. It obstructed the compelling interest of the states in regulating abortion clinics. It instituted vague, arbitrary, and inconsistent standards for abortion legislation, and then changed, them...