By Jon O’Brien
The 1973 Roe v. Wade decision was ahead of its time with its affirmation that women can legally choose to have an abortion, but it was also a product of its time. In 1973, the United States was riding the wave of optimism known as the social justice movement, which was in the ascendancy during the 1960s as it sought to right the many wrongs American society had accepted until then. People were speaking out against war, convinced that we as a society could do better for one another. The Civil Rights movement affirmed the common humanity of all Americans with its call for racial equality and justice. Likewise, women were asserting the right to define themselves, their strengths, their voices and desires. Age-old restrictions were giving way: contraception, only recently legal, was finally made available to unmarried women in 1972.
But in 1973, along came Roe, bringing women—and everyone who had an opinion about their reproductive lives—to the center of the national stage.
Roe v. Wade is not a feminist tract. It was largely authored by Justice Harry Blackmun, described by the New York Times as “a modest Midwestern Republican.” The text has a moderate, thoughtful tone. It acknowledges that the subject of abortion invokes deeply held responses from the entire person: “one’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe.”
There is a humility in the justices’ refusal to rule on fetal personhood. First citing what others like the Stoics and the Jews have said about on the subject, Roe then cites the change in Catholic teachings on fetal personhood that occurred in the 19th century. It concludes that “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
What Roe did accomplish was to situate women in their proper legal position—not as potential criminals who were secondary to their childbearing potential—but as citizens with a right to privacy, which includes the right to choose an abortion.
This is in contrast to the British Abortion Act, passed in 1967, which doesn’t tread on the same territory at all. It reads like a set of policy guidelines for a medical professional—two doctors’ opinions are required unless there is a medical emergency—but women’s rights are not mentioned at all. And as the BBC points out, “the law did not legalise abortions, but rather provided a legal defense for those carrying them out.” In the International Planned Parenthood Federation’s summary of abortion laws in Europe, we can see that other nations’ laws also fall short of establishing abortion as a right. In France, for instance, “abortion remains forbidden” although it is legal in the first 12 weeks “if the pregnancy causes a ‘state of distress’ for the woman.” In Germany, abortion is available on request up to 12 weeks, but a woman must undergo mandatory counseling. Sweden’s abortion law allows abortions on request up to 18 weeks. Spain’s 2010 law legalizing abortion on request up to 14 weeks is based on a firm foundation of human rights, specifically the right to “self-determination,” but unfortunately the current government has announced its intention to change this more liberal abortion policy instituted by the previous administration.
Compared to most jurisprudence on women’s reproductive health on the books in the U.S. and abroad in the early 1970s, the American law was ahead of its time, but there are problems inherent in Roe v. Wade. Society owes women the recognition of their moral agency. As it stands, the law says that women’s rights “are not unqualified.” Because state interests and medical opinion still weigh Roe down, the law does not grant women full autonomy over their bodies.
What is needed in both the U.S. and around the world is a pro-choice movement that makes the case for women’s bodily autonomy and the freedom of conscience. Here, that may come from another, more robust Supreme Court decision or from winning over hearts and minds to this moral, ethical standpoint.
Choice is nonnegotiable. Consider what happens when we take choice out of the reproductive health picture. A woman becomes the product of her circumstances. She is thrust into the consultation room rather than going there of her own accord. She is deemed incapable of making her own decisions about whether or not to have an abortion. This scenario doesn’t speak very highly about women’s worth, or about the centrality of conscience in moral decision making.
Strangely some have tried to demote choice from a conviction to a “consumer term.” Some claim that choice needs to be rebranded for today’s times, deemed to be “very negative because abortion is a moral issue,” or because some constituencies are too distracted to embrace it.
Rather than a makeover, what the pro-choice movement needs is to dig deep into its core values. That’s exactly what happened in 2012 when Catholics for Choice and the UK abortion provider bpas convened a multinational group of medical professionals, advocates and academics in London to articulate what it means to be pro-choice. The London Declaration of Pro-choice Principles argues:
Every woman should have the right to decide the future of her pregnancy according to her conscience, whatever her reasons or circumstances. A just society does not compel women to continue an undesired pregnancy.
When weighing a person’s moral autonomy, there are no halfway marks on the scale. What matters is that the abortion decision rests with a woman and her conscience, and that if she chooses to do so, the procedure occurs safely and with dignity, without having to circumvent unnecessary obstacles, ideologically-driven coercion or humiliation along the way. The consensus in London was the unwavering belief that “women are the only ones who can make the right decision for themselves.” This belief lies at the center of the pro-choice movement.
Ultimately I think that voters in the U.S. can get behind the notion that regardless of how you feel about abortion, the question of who decides should be a no-brainer. Women need to be trusted. They alone, can make that choice.