Roe v. Wade--A Complicated History

Northshore Journal July 15, 2022

Only a few issues rise to the level of controversy that abortion brings out. Civil rights, same-sex marriage, and access to birth control for married women have come close over the past 60 years, but they simmer in comparison to the boiling over of debate on abortion.

On June 24 this year the United States Supreme Court, in a case titled Dobbs v. Jackson Women’s Health Organization, overturned its Roe v. Wade decision of January 22, 1973, bumping legal abortion providers off the precarious perch they sat on for almost 50 years. Instead of relying on the Roe decision, they now contend with the various state laws that regulate the procedures. The recent decision will have far-reaching ramifications beyond abortion, but that shall be a topic for another time.

The Dobbs case involved Jackson, the only abortion provider in the state of Mississippi suing Thomas E. Dobbs, a state health official, over a 2018 state law banning all abortions after the first 15 weeks of pregnancy. In Roe, the court determined that the state had no interest in fetal life until the end of the first trimester, about 21 weeks. And that six-week difference was the main issue of the Dobbs case. In deciding, the court ruled that the Roe v. Wade decision was wrong and that all regulation of abortion shall be done at the state level. 

In Minnesota, a 1995 decision of the Minnesota Supreme Court in a case titled Doe v. Gomez created a standard considered to be broader than Roe. Minnesota abortion laws will not change because of the decision in Dobbs unless a future legislature takes the action.

In a statement issued by the Catholic Bishops of  Minnesota commenting on the Dobbs case the organization said, “Sadly, Gomez is unlikely to be overturned without a change in federal law or a state constitutional amendment.” 

The Bishops went on to state, “Despite Minnesota’s legal landscape, we should continue to find ways to place reasonable limits on the availability of abortions, especially after viability (Minnesota is one of the few states without limitations on post-viability abortions). We should also put in place, and keep in place, measures to help protect women from further serious injury arising from the risks already involved with an abortion.  Such protections include, among other things, licensing abortion clinics and requiring that chemical abortions be procured only through a physician.”

America has always had a tumultuous relationship with abortion. When the Constitution was adopted, abortion was legal and virtually unregulated in all 13 states of the union, according to Geoffrey R. Stone, Professor of Law at the University of Chicago as quoted in The Christian Science Monitor. The only restrictions in place were that abortion became illegal after “quickening,” or when the mother could feel the movement of the fetus. This “quickening”  was considered to happen in the fourth or fifth month of pregnancy. 

In the middle of the 19th century, the recently formed American Medical Association took the position that a fetus was a person from conception. It opposed all methods of contraception and abortion and virtually all states passed legislation banning the procedure, with limited exceptions if the mother’s life was in danger.

By the middle of the 20th century, 17 states permitted abortions under a range of circumstances.

Estimates for the number of abortions performed, legal and otherwise, range from 200,000 to 1.2 million per year during the 1950s and 60s. 

Controversial reproductive issues in the middle of the last century included the Supreme Court decision in 1965 titled Griswold v. Connecticut which threw out state laws that banned the use of contraception by married women. Oral birth control pills were first available in 1960. In 1972 the Court gave single women the right to access these contraceptives.

In the Roe v. Wade decision in 1973, the Court found that prior to the viability of an unborn child, somewhere between 24-28 weeks of pregnancy, the individual woman’s interests were greater than the interests of the state. It ruled that after that so-called first trimester the state’s interests outweigh the interest of the individual woman.

The Roe decision became a political organizing tool, and in 1976 the national Republican Party added an anti-abortion plank to its platform, and it has had that plank in every platform adopted since. In Minnesota, the Democratic-Farmer-Labor (DFL) Party had a vocal caucus of pro-life members dedicated to placing an anti-abortion plank in the DFL platform well into the 1990s, although they failed to do so.

The debates and tension over abortion rights and restrictions are not recent phenomena. They have been part of human civilizations for millennia and as the elections creep up on us you can expect them to get ever more hyperbolic.

As the Minnesota Catholic Bishops reasonably stated, “The prospect of Roe being overturned has already sharpened partisan division on the abortion question. As bishops, however, we have no interest in engaging as partisans, and we will continue to work to build common ground rooted in the principles articulated above. This is a matter of prenatal justice—giving to both mother and child that which is their due, namely, support and protection.”