Roe v. Wade: Questions and Answers

Editor’s note. The following appears today at the Life Issues Forum, which is a bi-weekly column written by staff of the USCCB Secretariat of Pro-Life Activities “addressing the latest issues on the culture of life.”

Roe v. Wade is well known as the 1973 Supreme Court case that legalized abortion in the United States. With the retirement of Justice Anthony Kennedy–and as the confirmation hearings for his replacement have moved forward–Roe v. Wade has once again found itself at the center of public debate. Pro-abortion groups continue to spread misinformation about Roe, fearing its eventual reversal. Accurate answers to some common questions can help us to better understand Roe and to educate others.

What Did Roe v. Wade Do?

It said the right of privacy (not mentioned in the text of the Constitution) “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The Justices ruled that a state may not restrict abortion at all in the first three months of pregnancy (first trimester). It may establish guidelines only to protect the mother’s health during the next three months (second trimester). After “viability,” when the unborn child could survive if delivered (which the Court placed at 24 to 28 weeks of gestation), the state may prohibit abortion unless it is deemed necessary to preserve the mother’s “life or health.”

Did the Court Find That Life Doesn’t Begin Until Birth?

No. It argued that uses of the word “person” in the Constitution do not seem to include the unborn. Then, citing alleged wide disagreement as to when human life begins, the Court said it “need not resolve” this difficult question. Instead of considering the scientific evidence that life begins at conception, or even allowing legislatures to protect those who have never been proven to be anything but human beings, the Court decided to treat unborn children merely as “potential life”–and to prevent the people or their elected representatives from determining otherwise.

Do All Legal Experts Approve of Roe?

No. Roe has been criticized by several Supreme Court justices and even by legal experts who favor legalized abortion. Justice Byron White called it “an exercise of raw judicial power.” Yale law professor John Hart Ely said that Roe is “a very bad decision …. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Edward Lazarus, former clerk to Justice Harry Blackmun who wrote the Roe opinion, says that “Roe, as constitutional interpretation, is virtually impossible to defend.”

Why Are Abortion Advocates So Strongly Committed to Retaining Roe?

Roe v. Wade is increasingly recognized as bad law, bad medicine, and bad social policy. Most Americans object to an unlimited right to abortion. Therefore, such a policy can be kept in place only by extraordinary measures–by insisting that Roe is untouchable, regardless of the evidence. Abortion advocates know that any return of this issue to the democratic process would produce a very different policy from what the Court created.

But false judicial doctrines do not have a right to live. Human beings do.