As one more reminder of what we’ve lost, the text of the 1973 Roe v Wade ruling is unlikely to console us. Even so, I recommend downloading the pdf. In the wake of its overturning, this beautifully written document – which reads like a long form essay – is not only interesting in itself but now seems like another sign of how much has changed over the last half century, in this case for the worse.
Drafted by Justice Harry Blackmun, the ruling includes a clear and persuasive summary of the history of abortion law. “At the time of the adoption of our Constitution, and throughout the major portion of the 19th century, a woman enjoyed a substantially broader right to terminate a pregnancy that she does in most States today.” It tracks the centuries-old debate over when life begins, and dismisses the argument that a fetus is a person guaranteed the protections afforded US citizens. Throughout, it strikes us as the careful explication and clarification of a law, of legal precedent, unlike Justice Alito’s ruling in Dobbs v Jackson Women’s Health, which seems more like an expression of religious conviction masquerading as an unbiased interpretation of the constitution.
What’s most striking about Roe v Wade – and its difference from the ruling that overturned it – is its eloquence. Blackmun’s lucid, frequently graceful language reflects a commitment to decency and compassion. The judges are clear about the dangers of carrying an unwanted child or a high-risk pregnancy to term. They strive to see the issue from the perspective of those confronting a serious life crisis, and to imagine the devastating outcomes that pregnant women and their families may face.
“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 childcare. 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.”
The passage I admire most is the one in which Blackmun, at once profound and lyrical, describes the atmosphere surrounding the issue of abortion, the way our opinions are formed, and the pressures that the law must acknowledge and keep in balance.
“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. 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, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, poverty, and racial overtones tend to complicate and not to simplify the problem.”
And there it is: a superbly rendered catalogue of the factors that come to mind when we consider the factors that will now determine whom Dobbs will hurt most: poverty, race, and life on the raw edges of human existence – an edge, one might say, on which every decision about abortion is made.
I understand that Roe has its flaws, though I disagree with the current court on what they are. Mid-century paternalism taints the idea that the decision to terminate a pregnancy be made by a woman and her physician; in most cases (excepting medical diagnoses and risk assessments) this difficult call doesn’t always require a doctor’s input. And the judges seem suspiciously quick to dismiss the notion that “these laws were the product of a Victorian social concern to discourage illicit sexual conduct” –and by extension the suggestion that a man’s views on abortion might reflect a desire to control female sexuality. But all of that seems minor and forgivable beside the icy piety of Justice Alito’s ruling, or compared to Justice Thomas’s concurring opinion: his barely veiled threats about the future of same-sex marriage and legal contraception.
The court has forgotten that abortion involves human beings making tough decisions at difficult points in their lives
In fact the distrust of – and ill will towards – women is nothing new. It permeates Justice Byron White’s dissenting opinion on Roe v Wade, in which he offers his idea about why someone might end a pregnancy: “Convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc.” Convenience? Dislike of children? White is only getting started. “The court apparently values the convenience of the mother more than the continued existence and development of the life or potential life that she carries.” Potential life? And so we come to White’s gloves-off moment, his disagreement with the court’s contravening the states’ attempts to “protect human life” and instead “investing mothers and doctors with a constitutionally protected right to exterminate it”.
Exterminate is a strong word. Alito’s opinion is more tempered, but wholly lacking in Blackmun’s empathy or the grace of his language. Alito’s word choice is revealing. The words “human being” are invariably preceded by the word “unborn” – as if the only humans relevant to the case are those who have yet to come into the world. After reading Dobbs we might conclude that the lives of the women forced to bear unwanted children had no influence on these deliberations. There are odd digressions – one about how definition of fetal viability changes when a community has a top-notch NCU – but the message comes through: a woman needs to be stopped by law from killing the person inside her.
In the 50 years between Roe and Dobbs, the US supreme court has forgotten that abortion does involve human beings making tough decisions at difficult points in their lives. It has recast them as criminals conspiring to commit mass murder, killers who need to be stopped.
That was always the opinion of the protesters rallying outside abortion clinics, shouting insults at frightened unhappy women and brandishing posters of mangled fetuses. How troubling now to learn that this opinion is shared by six of the justices presiding over the highest court in the land.
Francine Prose is a former president of PEN American Center and a member of the American Academy of Arts and Letters and the American Academy of Arts and Sciences