Roe, Roe, Roe your Vote
Burke Bindbeutel, University of Missouri School of Law
*This post is part of a series written in support of Trust Women Week Silver Ribbon Campaign and the online virtual march from January 20-27. LSRJ is proud to partner with numerous orgs across the country – join the march by sending a message to your lawmakers today! And check back here throughout the week for more posts.
The anniversary of Roe v. Wade reminds our Mizzou LSRJ chapter of what an important milestone the 1973 Supreme Court decision was. In the face of years of entrenched opposition, the Court affirmed a woman’s right to terminate a pregnancy. While reproductive justice advocates should cherish the power that the decision granted them, the anniversary also should remind us that Norma McCorvey’s lawsuit was in fact a partial victory. Supreme Court decisions can flip controversial laws, but the most important decisions also inspire backlashes. When reproductive justice is “constitutionalized,” it becomes denatured and defensive. Mizzou LSRJ has been at pains to not be stigmatized as “The Abortion Club,” a state of affairs at least partially due to Roe v. Wade.
The decision interrupted an evolving political discourse, and rested upon an unwieldy compromise. Roe extended Griswold v. Connecticut’s right to privacy to a woman’s decision to abort, but it also stressed that the government had a stake in that decision. Justice Harry Blackmun addressed public safety concerns by discussing fetus “viability,” a slippery term, then and now. The Court did not inform America about when a state’s interest in the potential life of a fetus eclipses a woman’s self-sovereignty.
Here in Missouri, we pioneered the sideways attack on a woman’s right to choose, which the Supreme Court deemed constitutional in Webster v. Reproductive Health Services. Rather than a frontal assault on abortion rights, the Missouri legislature in 1988 barred public funds from sponsoring abortion services or even counseling that related to abortion. Before this surprising decision, states had presumed that interfering with abortion rights would have been precluded by Roe. But in Webster, Justice Rehnquist had his revenge. The subsequent Planned Parenthood v. Casey elaborated on just how states can curtail rights not directly but through obstructive measures like parental consent and waiting periods. These later cases exposed the main flaw of Roe: it may have gone some ways towards shoring up individual rights, but mainly it served as a temporary stay on the anti-abortion brigades.
Neal Devins has argued that the compromises of Webster and Casey have struck a workable balance on the abortion issue. But it is not the role of the Supreme Court to author political consensus. And there is little evidence that partial victories have placated the religion-informed anti-Roe factions. Limited abortion rights are still intolerable to that contingent, and reproductive justice advocates cannot be satisfied with the lack of abortion services in 97 percent of Missouri counties, or the arbitrary requirement that doors in abortion clinics must be at least 44 inches wide.
Judicial fiats covering negative rights are not necessarily the best process by which to protect the dignity of a citizenry, argues Robin West. Roe’s deterioration has put RJ advocates on the defensive. The 1973 decision narrowly framed the broad reproductive justice debate. What could have been, and could still be, a conversation about self-sovereignty and the minimal state has become a fight about the appropriate circumstances for pregnancy termination.
We should not have to continually reexamine the penumbras of 1789 in order to obtain the autonomy that underlies the right to an abortion. Instead, we should expect it from our lawmakers, and throw them out on their ear if they don’t acknowledge us. Roe was a precious victory, but the Supreme Court can’t help us help ourselves.