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  • Shane Caraway

Roe v. Wade Has Been Dead for Over 20 Years



With growing crowds of unrest and protest sweeping the nation, the dangerous ignorance of the masses—and high-profile Leftist politicians calling the mobs into the streets—has fostered an environment ripe for civil discord. These masses cite Roe v. Wade (1973) as the gospel of abortion, yet Roe has not been the primary abortion regulator since the courts marked a drastic departure from Roe with its decision in Planned Parenthood v. Casey (1992).


Roe recognized that the state had an “interest” in protecting the life of the baby. It was based on a trimester system, arbitrarily determined and limited by 1973 science and technology. Ultimately, women were said to have the “right” to abort pre-viability without undue interference from the state, but the state could restrict abortion post-viability. Essentially, they also note that the state has a legitimate interest in protecting woman’s health and life of the fetus. Excerpted from the decision:


(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163-164. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163-164. (c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164—165. 4. The State may define the term 'physician' to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. P. 165.

Thus, according to Roe, government was recognized as having the authority to regulate and control abortion. These arguments were predicated, again, on “viability.” If one were to use the same analysis in Roe to the modern day, states could legally ban abortions after six weeks. Roe is not the open-ended creation of a constitutional right to abortion that Leftists seem to think that it is.


Roe was effectively overturned nearly two decades later with Planned Parenthood v. Casey (1992). This decision maintained the viability argument that recognized the authority of states to restrict abortion post-viability, but it further confounded this responsibility with a focus away from the “privacy” tenets of Roe towards a newly-invented understanding of abortion as an element of “liberty” and bodily autonomy. This change was designed—or rather, fabricated—to allow “substantive due process” investigation. This process is a flexible, interpretative, and subjective doctrine whereby “rights” are inferred or created resultant from the “penumbras, formed by emanations” from the Bill of Rights.


This judicial doctrine allows majority courts to extend stare decisis and their present cases to cover whatever “right” they want to create or protect. The Roe court wanted to Federally enshrine abortion; the Casey court wanted to expand abortion. Using this doctrine, the courts were able to use the power of the judiciary to effect social and political change. This included the rejection of the trimester period and largely eliminated any interest the state held in the preservation of potential life, substituting the presumed liberty of the pregnant woman over the liberties of potential life, or in many cases, the yet-unborn, developed baby.


The Federal courts involved themselves in abortion again in Gonzales v. Carhart (2007). In this decision, the Court upheld a federal statute that banned partial-birth abortions. This authority was provided by the original Roe decision that established state interest post-viability. Not even the “penumbras and emanations” of Casey could be distorted sufficiently enough to cover partial-birth, late-term abortions. Despite this ruling, as of 2019, eight states and the District of Columbia—all Democrat-controlled—provided no gestational restrictions. Those states include: Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, Vermont, New York, and noted earlier, the District of Columbia. All states that do have gestational timeframes—the remnants of the Roe trimester system—provide numerous exceptions that bypass this restriction. This includes the mental health of the mother, meaning that the stress of parenthood is sufficient cause for acquiring an abortion in the ninth month of pregnancy. All of these policies persist despite the “settled” precedent, the lauded stare decisis created by Gonzales v. Carhart (2007).


The stark departure from Roe is further evinced in the proposed legislation that purported to codify the Roe decision. The largest issue with this position is that the legislation did not include the tenets of Roe, but was a Federalized form of the infamous New York bill allowing unfettered abortions and even removing the ability to prosecute criminals for the death of a wanted baby, incidental or intentional. The popular inclusion of “health of the mother” in some form hearkens to Doe v. Bolton (1973) where the court interpreted “health” to mean: “physical, emotional, psychological, familial, and the woman's age -- relevant to the wellbeing of the patient.” This broad definition of “health” meant that an abortionists would never be lacking justification for performing the procedure; all Roe-spirited restrictions were nullified through any real or even potential emotional or psychological harm to the mother, even something as basic as the stress incumbent with parenthood.


True to its eugenics roots, virtually all states also provide for an exception to any baby that presumed to be defective in some way; being imperfect strips away the protection of the laws, such as it may be.


That the Democrats have deviated from Roe and seek to expand, normalize, and protect all abortions for any purpose is clearly evinced in their House bill (H.R. 3755). Ironically, while Speaker Nancy Pelosi (D-Calif.) declared this bill was “about freedom, about freedom of women to have choice,” the House bill itself does not mention the word “woman” or “women” except to provide numerous qualifiers, including “cisgender women, transgender men, non-binary individuals, those who identify with a different gender, and others.” The bill also claims that all opposition to abortion is “rooted in misogyny.” This is a curious point since one can infer through population ratios that a majority of abortions end the potential or actual life of a female.


Both the House bill and its Senate equivalent Federalize the ideals of the New York abortion bill cited earlier, including the standard “preserve the life or health of the woman” clause that effectively nullifies any and all abortion restrictions. The House bill claims its righteousness based on declarations made by the United Nations, not the United States.


Democrats and activists arguing for Roe are supporting an ideological straw man. Roe has not directed abortion access in American since 1992, and subsequent decisions at multiple governmental levels have perverted and distorted it beyond recognition. This has culminated in unrestricted abortive procedures, embraced by Democrats in their numerous bills deceptively marketed to “codify Wade” and echoed by their titular head, President Joe Biden. True to their historical roots, Democrat leadership today refer to their political opponents as “radical” much as they once had to resist an end to slavery and later Jim Crow.


Distorting their radical eugenics position under the Roe straw man is essential to garnering public support. Despite repeated claims that a majority of Americans support abortion, once voters are informed on the issue, this approval plummets dramatically. That ignorance prevails is equally true; the youngest protestors are the least likely to understand the real issue in the very case they picket and protest to support. While a Pew Research survey found that 63% of Americans disagreed with the complete reversal of Roe v. Wade, approval for Democrat proposals is much smaller. Despite the increase in Democrat approval for abortion that shifted general social approval, opposition against abortion in the second trimester (55%) and especially third trimester (71%) threatens the so-called “codification” of Wade premised on late-term and partial-birth abortion without restriction or requirement. Another poll found that only 21% of respondents approved of abortion without any restrictions, and that out of the 77% that preferred Roe remain, 26% wanted additional restrictions while only 14% wanted to see a reduction in restrictions.


Public opinion is not on the side of the Democratic Party. This necessitates the intentional obfuscation and symbolic transference that the Democrats utilize to create a false synonym between their position and the comparatively-moderate position in Roe. The key in the current Democrat strategy is to deceive the 71% of Americans opposed to these radical abortionist views into believing that it is Roe being threatened, not infanticide. Based on the growing number of protests and the irresponsible violent rhetoric echoing in the halls of Congress and streets of D.C., their propaganda campaign has been a success.

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