Understanding the Impact of Roe v. Wade

Thursday, September 1, 2011

Page 6

IN MY OPINION (Column)

Understanding the Impact of Roe v. Wade

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Since 1973, Roe v. Wade has proven to be a very fertile burial ground for politicians and judicial candidates. This, in spite of the fact that most Americans have never actually read the opinion of Roe v. Wade, 410 U.S. 113, understand its limited holding and its economic effect.

Abortions are very sensitive subjects with strong sectarian issues. The subject inspires vigorous opposing views of deep and seemingly absolute convictions. These are based upon one’s experiences, religious training and one’s attitudes toward life and family and their respective values.

The underlying philosophy of Roe v. Wade is based upon one’s right to privacy, which although well established now, was never mentioned by our founding fathers or the authors of the various amendments.

Roe v. Wade simply and unambiguously holds that a state may not proscribe abortions, absent medical justification. That is so, because of a woman’s now well established privacy interest which has due process protection. If advocates and opponents were to realize this fact, much of the controversy in the media could be avoided, although it is questionable whether self-styled martyrs or their guns could thereby be silenced or deactivated.

If Roe v. Wade were to be judicially overruled, a state would still have to specifically forbid abortions to effectively ban them. That is likely in states such as Utah or Texas, but exceedingly unlikely in California or New York. The trend in civilized countries of the world, even where Roman Catholic influence is strongest, has been the legitimization of abortions.

The economic impact of Roe v. Wade has been least debated although its effect overshadows all other considerations. The rich or well to do always could travel to a jurisdiction which is abortion-friendly. It is the poor, or poorest, who are recipients of abortion freedoms. Who are they? Mainly unwed minors. Are they an affluent group? Far from it. Do they contribute to society’s social and penal problems? Immeasurably. In fact, they are far from the Greatest Generation, probably the feeding ground of another generation of teenage pregnant girls. It can be a vicious circle which only an understanding of Roe v. Wade can mitigate. To preach sex abstention to unwed minors may be like proscribing alcohol to an alcoholic. We tried that once.

Parental approval is not a viable substitute for outright proscription of abortion rights. Many teenage pregnant girls fear their parents, especially fathers, when it pertains to sexual indiscretions. (Not every father fits the mold of Robert Young in Father Knows Best.) Fear would inspire silence. When the silence is broken, it may be too late for a safe abortion.