Getting to Know Roe and Doe

[Geee]

Real Clear Policy

Roe v. Wade is on the ballot this November. Unfortunately, almost nobody understands what Roe v. Wade did, nor what the Dobbs overruling did.

 

This was obscured by the “trimester” scheme of the 1973 decision. The Court held that the states could impose no restrictions in the first trimester, and only those that were for the sake of preserving maternal health in the second trimester. They could prohibit abortion in the third trimester (then regarded as the point of “viability”), but must still allow abortion for “maternal health.”

The meaning of “health” was fleshed out in Roe’s companion case, Doe v. Bolton. The Texas law in Roe allowed abortion only to save the life of the mother. The Georgia law in Doe was a more liberal and recently-enacted one, which allowed for “therapeutic” abortions, in cases of rape, incest, and threats to maternal life or health. But these required the approval of a multiple-member hospital committee. This reflected the traditional view that reasons must be given to justify the taking of a human life.

The Court held that “health” must include “psychological as well as physical well-being … medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient.” The Georgia procedural requirements were struck down as too burdensome. The decision was left to the woman and her physician, and “psychological” or “emotional” factors were so completely subjective as to allow abortion for any reason whatsoever. Justice Byron White recognized this in his dissent, that the decision permitted abortion for any reason “or no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request.”

Very simply, Roe established a national, constitutional right to “abortion on demand.” It permitted no restrictions on the choice of a woman and her physician to terminate a pregnancy at any point before birth.