Joe Biden, the Democratic presidential nominee, told an NBC town hall audience yesterday that Judge Amy Coney Barrett “may well overrule” Roe v. Wade, but he assures voters that his response would be “to pass legislation making Roe the law of the land.”
This “bumper sticker” kind of answer may be politically advantageous, but it can only succeed by avoiding close examination. Thankfully, Roe’s pronouncement in 1973 of a “fundamental right to abortion” isn’t the “law of the land” today, and it hasn’t been for over forty years. What Biden and other abortion advocates are harkening back to is just a fading memory of the once-towering precedent that Roe was – and for the sake of women’s health and safety, let’s hope they fail to take America back to those days.
The Supreme Court’s Roe decision created overnight a regime of federally-controlled neglect, striking down every abortion law in all 50 states and declaring a sweeping right for any pregnant female of any age, while placing no conditions on the right. Unless states acted to fill the vacuum, it continued. Unless states enacted new legislation placing conditions or limits on the right, none existed in a state. Without legal requirements for informed consent, or for parental notice, or for sanitary conditions, there were none.[i] That is the “law of the land” Biden and pro-abortion politicians want America to go back to – no regulation of abortion at all, for any reason.
Far from eliminating “coat hanger abortions,” Roe’s legal control over abortion regulations actually licensed back alley abortionists, who could simply hang out their shingle on Main Street and keep doing business. After Roe, a new crop of abortionists arose to answer the anticipated demand: Kermit Gosnell of Philadelphia, Richard Ragdsdale of Rockford, Illinois, and Ulrich Klopfer of South Bend, Indiana all opened their doors in 1973. All would end their careers in infamy, driven out of the practice of medicine by charges of criminal homicide or civil wrongful death.[ii]
In the decades after Roe, federal judges would decide hundreds of abortion cases,[iii] with precious little guidance from the Supreme Court. In its drive to impose universal abortion rights, the Supreme Court had made gratuitous and overbroad pronouncements in Roe that went well beyond the case it had before it, and it was forced to backpedal when it became clear that Roe was putting women’s lives and health at stake. It took the Court two years to clarify that Roe did, in fact, allow states to insist on such a basic requirement that abortions be limited to licensed doctors.[iv] One year later, the Court had to assure states that they could require that abortionists obtain full informed consent from the mother before an abortion—routine and mandatory in every other surgical procedure—and collect basic reporting data from abortionists.[v]
In 1977, the Court declared unconstitutional an Indiana statute requiring that first-trimester abortions be done by a physician in a hospital setting with safeguards for emergency complications, despite that there had been no trial, no facts presented to the district court, and no finding that the Indiana law was medically unreasonable.[vi] Justice White and two others dissented, insisting “There is nothing in the United States Constitution which limits the State’s power to require that medical procedures be done safely. [Roe and Doe] do not elevate the decision to have an abortion to a higher constitutional status than the decision to have life-saving or health-preserving operations.”[vii]
By 1983, ten years after Roe, some members of the Court were beginning to voice caution over the impact that the broad right to abortion announced in Roe was having on women’s health and safety. Justice Lewis Powell, while writing for a narrow Court in Planned Parenthood of Kansas City v. Ashcroft,[viii] also wrote separately to voice concerns about abortion safety, taking note of the Chicago Sun-Times expose in a part of his opinion that was joined by then-Chief Justice Warren Burger:
“The professional views that the plaintiffs find to support their position do not disclose whether consideration was given to the fact that not all abortion clinics, particularly inadequately regulated clinics, conform to ethical or generally accepted medical standards. The Sun-Times of Chicago, in a series of special reports, disclosed widespread questionable practices in abortion clinics in Chicago, including the failure to obtain proper pathology reports.”[ix]
And in response to a partial dissent on that issue from the author of Roe, Justice Harry Blackmun, who charged that the Court was disregarding “the interests of the ‘woman on welfare or the unemployed teenager,’” Justice Powell reflected that “these women may be those most likely to seek the least expensive clinic available…[and] the standards of medical practice in such clinics may not be the highest.”[x]
Thankfully, in subsequent decisions such as Planned Parenthood v. Casey (1992)[xi] and Gonzales v. Carhart (2007),[xii] the Court reaffirmed that States have an important governmental interest in regulating abortion for the sake of women’s health and safety. And the fact of the matter is, virtually every life-saving law regulating abortion since Roe has been proposed by pro-life lawmakers and pro-life policy groups, and defended in the courts against abortion industry challenges. The abortion industry’s goal has always been to tear down every legal limit on abortion, including commonsense health and safety regulations, whether by legislation or judicial decree, and they largely succeeded in that project with Roe in 1973. If the abortion industry had been able to have its way in the years since Roe, there would be no regulation of abortion on the books in any state. That is the sordid past that Joe Biden wants to go back to. For the sake of the women we love, we will fight to keep Roe from becoming “the law of the land.”
[i] See Clarke D. Forsythe, Abuse of Discretion, pp. 3–4 (summarizing impact of Roe). See also Tribe, Laurence H. “The Supreme Court, 1972 Term.” Harvard Law Review, vol. 87, no. 1, Nov. 1973, p. 2. “Roe v. Wade and Doe v. Bolton…impos[ed] limits on permissible abortion legislation so severe that no abortion law in the United States remained valid.”
[ii] See In re Kermit Gosnell, County Investigating Grand Jury XXIII, MISC. No. 0009901-2008 (Pa. Ct. Com. Pl. Jan. 11 2011). Pennsylvania health officials ignored complaints about abortionist Kermit Gosnell of Philadelphia and the 46 lawsuits filed against him, making just five annual inspections, after his clinic opened in 1979. 6abc. “DA: West Philadelphia Abortion Doctor Killed 7 Babies With Scissors.” 6ABC, 21 Jan. 2011, https://6abc.com/archive/7906881/. In 2011, it was reported that none of Pennsylvania’s 22 abortion clinics had been inspected by the government for more than 15 years. Associated Press. “Abortion Clinic Inspections in Pennsylvania Turn Up Some Problems.” Penn Live Patriot-News, 25 Jan. 2011, https://www.pennlive.com/midstate/2011/01/abortion_clinic_inspections_in.html. Inspections (other than those triggered by complaints) were believed by health authorities to inhibit access to abortion. Wang, Marian. “Kermit Gosnell Abortion Clinic Was Not Inspected for 17 Years.” HuffPost, 23 Jan. 2011, https://www.huffpost.com/entry/kermit-gosnell-abortion-c_n_812702. Gosnell was charged and convicted with first-degree murders for the deaths of three babies born alive then killed at his abortion center. Associated Press in Philadelphia. “Philadelphia Abortion Doctor Sentenced to Three Life Terms in Jail.” The Guardian, 15 May 2013, https://www.theguardian.com/world/2013/may/15/philadelphia-abortion-doctor-kermit-gosnell-sentenced-life. Richard Ragdsdale of Rockford, Illinois faced multiple malpractice lawsuits for failed abortions. Admin. “A Brief history of the Founder of Rockford’s House of Horrors.” Pro-Life Corner, 26 Jan. 2011, http://prolifecorner.com/a-brief-history-of-the-founder-of-rockfords-house-of-horrors/. Ragsdale and his wife were indicted in 1994 on four counts of child pornography involving their three-year-old foster daughter. Hanna, Janan, and Rick Pearson. “Abortion doctor Faces Porn Charge.” Chicago Tribune, 24 Sept. 1994, https://www.chicagotribune.com/news/ct-xpm-1994-09-24-9409240156-story.html. Ulrich Klopfer, who ran three abortion facilities in Indiana, was stripped of his license to practice law after admitting to failing to report the statutory rape of minor girls, including one ten-year-old. Mastio, David. “Abortionist Ulrich Klopfer Kept Thousands of Dead Babies but Inspires Little Curiosity.” USA Today, 18 Sept. 2019, https://www.usatoday.com/story/opinion/2019/09/18/ulrich-klopfer-abortion-gosnell-buttigieg-fetal-remains-illinois-indiana-column/2355359001/?fbclid=IwAR256lkARkCmjk-1qZhC6gN9bk0WGvStsGgwKwCnQqlchH5-p9OW3Gh7TG8&mc_cid=34a7ce6051&mc_eid=2e98a42183. After his death in 2019, thousands of medically preserved fetal bodies were found in his garage and clinics. Id.
[iii] See generally Wardle, Lynn D. The Abortion Privacy Doctrine: A Compendium and Critique of Federal Court Abortion Cases. William S. Hein, 1980; Wasserman, Richard. “Implications of the Abortion Decisions: Post ‘Roe’ and ‘Doe’ Litigation and Legislation.” Columbia Law Review, vol. 74, no. 2, Mar. 1974, pp. 237–68.
[iv] Connecticut v. Menillo, 423 U.S. 9, 10–11 (1975) (per curiam). Two months after the Roe decision, the Illinois Supreme Court reversed the convictions of two individuals for performing abortions, concluding that Roe invalidated the Illinois abortion law. People v. Frey, 294 N.E.2d 257 (Ill. 1973). Demonstrating the confusion around Roe at the time, the court dismissed the prosecutions of both a physician abortionist and a lay abortionist. Shortly after Roe, the Supreme Court denied review of a conviction of an individual who was not a doctor for doing abortions, on the procedural basis that he lacked standing to bring the suit. Cheaney v. Indiana, 410 U.S. 991 (1973). Justice William O. Douglas, who had voted with the Roe majority, concurred separately from the denial on the ground that Roe and Doe simply could not apply because the rule in those cases was conditioned on the understanding that “the abortion, if performed, be based on an appropriately safeguarded medical judgment.” Id. His plaintive call garnered no other Justice’s vote.
[v] Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).
[vi] Sendak v. Arnold, 429 U.S. 968, 969, 971-72 (1976). (White, J., with Burger, C.J., and Rehnquist, J., dissenting from denial of writ of cert.).
[vii] Sendak, 429 U.S. at 968-9.
[viii] 462 U.S. 476 (1983).
[ix] Ashcroft, 462 U.S. at 488, n.12 (Powell, J., joined in part by Burger, C.J.) (citing “The Abortion Profiteers.” Chicago Sun-Times, 1978, pp. 25–26 (other citations omitted).
[x] Ashcroft, 462 U.S. at 488, n. 12, quoting Blackmun, J. (dissenting with Brennan, Marshall, and Stevens, JJ.). Ironically, as noted above, the Illinois laws passed after the Sun-Times revelations had already become a dead letter as a result of legal action enforcing the Roe standard.
[xi] 505 U.S. 833 (1992).
[xii] 550 U.S. 124 (2007).