An Enduring Falsehood: The National Review Online Marks Roe Anniversary By Rewriting the Court's Holding

Blog ››› ››› LARA SCHWARTZ

Commemorating the 40th anniversary of Roe v. Wade in its editorial "An Enduring Wrong," the National Review Online mischaracterizes the ruling, claiming that the decision and its companion case, Doe v. Bolton, made abortion "legal at any stage of pregnancy for any reason, which is a considerably more liberal policy than that encoded in the law of any state or supported by public opinion then or now." 

In fact, the NRO got it wrong.  In Roe v. Wade, the Supreme Court made clear that states may limit access to abortion:

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.

In Roe, the Court also recognized the state's interest in protecting "potential life.":

In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. 

***             

[A] State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.

NRO criticized The New York Times for reporting on January 23, 1973 that the decision pertained only to restrictions on abortions in the first trimester.  It stated that the Times got "the story wrong from the beginning."  In fact, the Roe opinion states that as a pregnancy progresses, the right to terminate a pregnancy is balanced by the state's interest in protecting the fetus:

 (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.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [p165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

***

The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.

Doe v. Bolton, which was decided the same day as Roe, also makes clear that states may enact restrictions on abortion:

Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. What is said there is applicable here, and need not be repeated.

NRO's argument, though unfounded, is not new.  Bench Memos Blog's Ed Whelan resurrects it every year in his "This Day in Liberal Judicial Activism" post, stating that:

Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth.

"Unrestricted abortion throughout pregnancy" is not the "predominant" reading of Roe and Doe, and it has not been adopted by the Supreme Court. In fact, the Court [['s]] restated the opposite in Planned Parenthood v. Casey, a case that upheld several abortion restrictions but preserved Roe's basic holding:

Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. See, e.g., Doe v. Bolton, 410 U.S., at 189 . Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State.

NRO's characterization of Roe is simply false. 

Posted In
Gender, Reproductive Rights, Justice & Civil Liberties
Network/Outlet
National Review Online
We've changed our commenting system to Disqus.
Instructions for signing up and claiming your comment history are located here.
Updated rules for commenting are here.