Harvard Journal of Law and Public Policy, Vol. 8, No. 2 (Spring 1985), pp. 427-464. Reprinted with permission.

Abstract

The Supreme Court's 1973 decision in Roe v. Wade, which held that women have a federal constitutional right to an abortion, has generated considerable controversy. The abortion issue became politically significant in the 1960's, when, emboldened by the Supreme court's recognition of a constitutionally based right of privacy, activists initiated a series of legal challenges to the validity of state abortion laws. Their efforts finally succeeded in 1973 when the Supreme Court in Roe and Doe v. Bolton struck down as unconstitutional the Texas and Georgia abortion laws. For those who objected to the result in Roe, however, the occasion was not necessarily one of final defeat. Though Roe was a decisive victory for the pro-abortion forces, it was only the first battle in what was to become a fierce struggle over fundamental principle.

The purpose of this article is not to explore the evolution of Supreme Court doctrine concerning abortion. Rather, the purpose is to look at the abortion controversy in terms of the political reaction that it engendered. This study concentrates on two aspects of what since 1973 can be described as the ongoing guerilla war against Roe. the first concerns the post-Roe legislation at both the state and federal levels purporting to regulate abortion through time, place and manner restrictions. Much of this legislation was an attempt to circumvent Roe or at the least to minimize its consequences.

The second aspect of the study concerns the various proposals designed not merely to mitigate the effects of Roe, but to overrule it either directly or indirectly. The bulk of this discussion deals with the rather surprising variety of constitutional amendments put forward in Congress. A significant part, however, focuses on legislative substitutes for a constitutional amendment. These include proposed jurisdictional restrictions on the Supreme Court and lower federal courts, and proposed substantive legislation based on Section 5 of the Fourteenth Amendment, which defines "life" for constitutional purposes. While it is true that limiting the jurisdiction of the federal courts to hear abortion cases would not explicitly overrule Roe because of the doctrine of stare decisis, it would effect a shift of power to the state courts which alone would have the ability to grant remedies in abortion cases. In effect, the force of Roe would be greatly reduced.

The opponents of Roe, however, have not been able to unite on an approach for overruling it because some believe that the primary problem with the decision is a moral one, namely its approbation of abortion, while others object to it because of its implications for federalism and the policy-making role of the judiciary. This split in the anti-abortion ranks, which we shall call the "moralist"-"federalist" split. has gravely hindered the opponents of Roe, rendering it unlikely that the Congress will pass a measure designed to overrule Roe in the near future. Given the current political climate, the most serious and immediate threat to Roe is the possibility of a change in the composition of the Supreme Court.

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