Roe v. Wade Allows Abortions for All 9 Months of Pregnancy, Not Just the First 3
By James D. Agresti
January 18, 2013
With the 40-year anniversary of the Supreme Court’s ruling in Roe v. Wade just days away, media outlets are trumpeting a Pew Research poll showing broad support for the court’s decision, which overturned the laws of 30 states that barred abortions except to save the life of the mother. However, the poll misrepresents Roe v. Wade in a way that manipulates public opinion in favor of the ruling.
The flaw underlying this Pew poll is revealed by a 2002 Gallup analysis of 146 survey questions about abortion posed by 18 different polling organizations. Gallup found that public opinion was generally “consistent across differently worded questions. But in a few cases, particularly with respect to Roe v. Wade, the responses vary widely, depending on the information provided in the question.” Lydia Saad, the senior Gallup poll editor who authored the analysis, explained:
Most survey questions about Roe v. Wade provide the respondent with information about the case, and these details appear to have a major impact on the answers. … If Roe v. Wade is presented only as legalizing abortion in the first three months, support for the decision is much higher than if it is characterized as making abortion legal throughout pregnancy or for any reason.
The designers of the Pew poll boost support for the ruling by telling respondents: “In 1973 the Roe versus Wade decision established a woman’s constitutional right to an abortion, at least in the first three months of pregnancy. Would you like to see the Supreme Court completely overturn its Roe versus Wade decision, or not?”
That language is misleading because Roe v. Wade, along with its accompanying ruling, Doe v. Bolton, mandate that abortion be legal up until the point of birth if any one physician willing to perform an abortion says it is needed for “the preservation of the … health of the mother.” Furthermore, Roe cites specific examples of what may be considered harmful to a mother’s health, such as the “stigma of unwed motherhood,” the work of “child care,” and “the distress, for all concerned, associated with the unwanted child.”
Likewise, Doe v. Bolton, which was issued by the Supreme Court on the same day as Roe v. Wade with an order that they “are to be read together,” states that “the 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. All these factors may relate to health.”
Thus, “health,” as defined by Roe v. Wade and Doe v. Bolton, provides broad leeway to perform abortions throughout pregnancy. In Roe v. Wade, the majority wrote that their ruling does not permit abortions “at whatever time, in whatever way, and for whatever reason” a woman chooses, but they provided no example of a circumstance where abortion could be prohibited. The implications of this are evident in the words of noted abortionist Warren Hern, author of “the nation’s most widely used textbook on abortion standards and procedures.” In 1997, Hern explained: “I say every pregnancy carries a risk of death,” and “I will certify that any pregnancy is a threat to a woman’s life and could cause grievous injury to her physical health.”
Nonetheless, some states have passed laws that restrict late-term abortions without the broad health exceptions required under Roe v. Wade. Moreover, a 2011 New York Times op-ed explains that abortion proponents have generally shied away from challenging these laws in court because the laws are popular with the public and because of fear that the Supreme Court may strike down Roe. A number of Democratic Senators and Representatives (including Barack Obama) have sponsored federal legislation to overturn all local, state and federal laws that defy Roe v. Wade, but the bills were not voted upon.
Regardless of what current abortion laws may be, this new Pew poll significantly misrepresents Roe v. Wade, thereby manufacturing support for it. On top of this, major medias outlets such as the Associated Press, CNN, Reuters, Politico, and the Los Angeles Times are broadcasting these misleading poll results to their audiences. Perhaps most critically, in the same articles, some of these media outlets explicitly spread the falsehood that Roe merely permits abortions for the first three months of pregnancy.
As an attorney, I can tell the reader this article is ignorant nearly to the point of being disingenuous. It seriously misrepresents how factor tests are used in American law.
If you actually read the Roe opinion, items such as “the additional difficulties and continuing stigma of unwed motherhood” (notice, fuller quote conveniently NOT provided in the above article), etc., are FACTORS to be considered in making a determination as to the impact a pregnancy will have on a mother’s health. As with all factor tests, such individual factors are are not the determinant of whether an abortion is medically indicated; all factors are weighed and balanced together. The choice to balance a multitude of factors may lack the staid predictability of a bright-line test, but this does NOT mean that, therefore, anything goes, any time. The ruling permits state regulation of abortions after the first trimester except where a competent medical professional, after taking into consideration ALL enumerated factors, judges that an abortion is NECESSARY to preserve the life or health of the mother.
Let me reiterate that: (1) Medical professional. (2) All factors. (3) Finding of necessity — NOT benefit, NOT preference. That’s a MUCH tougher hurdle to clear, legally, than this article makes it sound.
Being as kind as possible to the original, I suppose one could argue there’s a de facto loophole in the Roe ruling, since one might convince an unethical doctor to perform an “medical necessity” abortion that only looks at a couple of the less immediately medically related factors under the (likely accurate) assumption it’s unlikely such judgment would receive legal challenge. But that’s like saying that doing 70 in a 60 zone is de facto legal since it’s rather unlikely a cop will spot you and pull you over; difficulties in practical application of the law do not make the law any less the law. IF challenged, a medical-necessity abortion done on sole grounds of (for example) “stigma” and “childcare difficulties” would almost certainly lose under the plain language of Roe, since no reasonable medical professional would say that the stigma of unwed pregnancy makes it NECESSARY for the mother’s health that an abortion be performed.
I hope the author, Mr. Agresti — who is not a legal professional and, as far as I can tell, has no formal legal training — will retract this article, or at least revise it so that it stops misrepresenting the Roe ruling.
First and most simply, your insinuation that you are correct because you are an attorney is ridiculous. Many prominent attorneys that specialize in this very topic disagree with you, and they agree with me. Take, for example, Charles E. Rice, Professor Emeritus at the University of Notre Dame law School, whose areas of specialization are constitutional law and jurisprudence. He wrote that the provisions of Roe v. Wade and Doe v. Bolton are “equivalent to a sanction for permissive abortion at every stage of pregnancy.”
This does not mean that Dr. Rice is correct and you are wrong, but it does mean that your law degree does not make you the undisputed authority here. It’s the facts that count, not your diploma.
Second, you are incorrect that Roe v. Wade “permits state regulation of abortions after the first trimester except where a competent medical professional, after taking into consideration ALL enumerated factors, judges that an abortion is NECESSARY to preserve the life or health of the mother.”
In fact, the “life or health of the mother” provision in Roe applies after “viability,” not “after the first trimester” as you claim. At the time Roe was issued, “after viability” was equivalent to the end of the second trimester, not the first. Medical technology has moved this date up by several weeks but not nearly enough to reach the end of the first trimester. This is a fairly egregious error for a lawyer who claims to have read Roe. Moreover, this fact alone shows that the Pew poll’s description of Roe is misleading.
Note that Roe does allow the state to regulate the manner in which abortions are performed after the first trimester, but the ruling does not allow the state to prohibit abortion for any reason until viability. It only allows the state to set rules, for example, regarding “the facility in which the procedure is to be performed.” Don’t try to use this as a technicality to wiggle out of your misstatement. In the context of this discussion, “regulation” means to place conditions on when abortions are allowed, not the licensing of medical facilities.
Third, your repeated references to “medical professionals” are akin to the misleading slogan that “abortion should be between a woman and her doctor.” In reality, the vast majority of abortions are performed by abortionists (i.e., physicians who perform abortions and little else). Abortionists are generally not psychiatrists who have expertise to assess whether the stigma of unwed motherhood (or a combination of factors) will damage a woman’s mental health. Yet, Doe v. Bolton and Roe allow any licensed physician to perform an abortion through all 9 months of pregnancy based solely on his judgment that it needed to protect a woman’s health, be it physical or mental. Per Doe: “If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment.” And again, to quote abortionist Warren Hern: “I will certify that any pregnancy is a threat to a woman’s life and could cause grievous injury to her physical health.”
Finally, you are correct that all factors are to be taken into consideration, but I never said or implied otherwise. In fact, I explicitly quoted Doe as stating that “the 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.” Furthermore, just because all factors are to be considered, this does not prohibit an abortionist from arbitrarily claiming that any one of them would push a woman over the edge of good mental health and thus justify an abortion.
My thanks to Mr. Agresti for the space to comment and the time and attention of a reply.
I believe a fair, careful reading of Mr. Agresti’s comment will reveal several straw men, but nothing that challenges my original remarks, so I will let them stand unamended. The same applies to the relevant portion of Mr. Charles Rice’s article, which is simply the “de facto loophole” objection that I already covered.
My thanks to Mr. Valenzuela for the spirited debate.
I believe the exchange above conclusively shows that Mr. Valenzuela’s remarks are misleading and my article is accurate in every respect. I leave it to readers to make the determination for themselves.
“IF challenged, a medical-necessity abortion done on sole grounds of (for example) “stigma” and “childcare difficulties” would almost certainly lose under the plain language of Roe, since no reasonable medical professional would say that the stigma of unwed pregnancy makes it NECESSARY for the mother’s health that an abortion be performed.”
This is obviousely a ‘no true scotsman-fallacy’. You seem to state that no reasonable medical professional would do that, because … all medical professionals are reasonable? Or are there unreasonable ones and if so where do they work and do you acknowledge they are out there?
You see, the point it that doctors who want to help the patient sitting across the table, will be able to use Roe easily. Look at the Spanish abortion laws of late. It said that abortions could ONLY be done if the doctor acknowledges mental health risks for the mother. And how many women do you think suddenly had mental health issues? And how many doctors catered in their needs?
(Since you’re a lawyer, please note that english is not my native tongue, therefor any grammar mistakes should not lead to your dismissal or disinterest of my story.)
I don’t think one needs to be a legal professional to critique the Pew Research poll. He simply pointed out manipulation in the poll and consequential misinterpretation of the results. The main thrust of this article is not about the interpretation of the law, though his example was for the most part correct, even you agreed with it in your second to last paragraph. Do your realize that? You completely dismantled your entire argument by saying that Roe v. Wade does have the potential to provide wide loopholes. But here again, the point of this article is the misrepresentation of the law and therefore not valid results.
I am not a legal scholar. What I get from this article is the downright manipulation of facts by media outlets in manipulating public opinion, or showing it in a way that the majority opinion is in its favor. A deliberate manipulation by what I call a government-media alliance. I don’t believe in conspiracies nor am I the type to create them. But when many in the mainstream media hold “progressive” points of view as many who now hold political power, I’m sure they will be happy to present the government position in a favorable way. When the President has the likes of Al Sharpton and Rachel Maddow over to the White House to seek advise on the fiscal cliff, it just makes you wonder. What does Maddow or Sharpton have to present to the President on such a complex issue, other than to help him to push his agenda to the public and being more than happy to oblige?
May I ask something for clarification to be sure I fully understand what is being said here. Roe v. Wade made it constitutionally protected for any woman to be able to get an abortion up to 9 months in any state so long as a Medical Doctor could determine and testify that the health of the mother is at risk. And in doing so the factors, according to the opinion of the Supreme Court ( which I just went and retrieved ) stated this:
“The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.”
So to address attorney Roberto Valenzuela’s post above, if a Doctor determined that the factor of the “stigma” of an unwed pregnancy would cause some type of psychological damage to a mother then she would be free to abort even at 9 months.
Is that correct? Because the argument is being made that “stigma” is one of the factors yet even if the Doctor cites that as the one factor for his reasoning that a psychological problem can exist – can’t that alone justify the decision to abort at 9 months?
Lastly, in light of the Supreme Court’s decision, how can any state ban abortions after so many weeks? Doesn’t this directly conflict with the decision of the Supreme Court? And could you provide any links to show which states allow for termination at the 9th month and which states prohibit abortion after a specified amount of time?
It can get quite confusing and I want to get it sorted out in my mind correctly.
Pat, You are correct on all accounts.
Your question regarding, “how can any state ban abortions after so many weeks” in the light of Roe v. Wade, is answered in this excerpt from the article (along with the accompanying links):
“Nonetheless, some states have passed laws that restrict late-term abortions without the broad health exceptions required under Roe v. Wade. Moreover, a 2011 New York Times op-ed explains that abortion proponents have generally shied away from challenging these laws in court because the laws are popular with the public and because of fear that the Supreme Court may strike down Roe. A number of Democratic Senators and Representatives (including Barack Obama) have sponsored federal legislation to overturn all local, state and federal laws that defy Roe v. Wade, but the bills were not voted upon.”
This policy brief provides an overview of the abortion laws in the states: http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf
I need 3 questions the roe v. Wade 1973
Valenzuela’s analysis seems much more coherent and accurate than Mr. Rice’s (who, one might note works for a private, Catholic university; not that the OP would, as indicated by terms loaded terms like “abortionist”). And even if Mr. Rice’s overstatements were accurate, it essentially wouldn’t matter in light of Planned Parenthood v. Casey anyway. You know, the case that actually set the current framework in place. I know it’s complicated because of the divided opinions, but it really points out that the rights guaranteed are *not* without limit if the government has sufficiently compelling interests. (Which really should piss off a “libertarian”, but I digress.)
As to the misleading nature of the question, welcome to entertainment statistics. It’s what happens when you get unqualified/untrained people playing with numbers (one could argue the same is true of legal analysis…). Hard to say if it is from ignorance or deception, but you may want to apply Hanlon’s razor.
Your description of Planned Parenthood v. Casey has no basis in reality. Here are the documented facts on this decision, and they accord with this article and refute your claims: https://www.justfacts.com/abortion.asp#ConstitutionCasey