USCCB Secretariat of Pro-Life Activities
September 7, 2018
Roe v. Wade is
well known as the 1973 Supreme Court case that legalized abortion in the United
States. With the retirement of Justice Anthony Kennedy—and as the confirmation
hearings for his replacement have moved forward—Roe v. Wade has once again found itself at the center of public debate.
Pro-abortion groups continue to spread misinformation about Roe, fearing its eventual reversal. Accurate
answers to some common questions can help us to better understand Roe and to educate others.
What Did Roe v. Wade Do?
It said the right of privacy (not mentioned in the text of
the Constitution) "is broad enough to encompass a woman's decision whether
or not to terminate her pregnancy." The Justices ruled that a state may
not restrict abortion at all in the first three months of pregnancy (first
trimester). It may establish guidelines only to protect the mother's health
during the next three months (second trimester). After "viability,"
when the unborn child could survive if delivered (which the Court placed at 24
to 28 weeks of gestation), the state may prohibit abortion unless it is deemed
necessary to preserve the mother's "life or health."
Did the Court Find
That Life Doesn't Begin Until Birth?
No. It argued that uses of the word "person" in
the Constitution do not seem to include the unborn. Then, citing wide
disagreement as to when human life begins, the Court said it "need not
resolve" this difficult question. Instead of considering the scientific
evidence that life begins at conception, or even allowing legislatures to
protect those who have never been proven to be anything but human beings, the
Court decided to treat unborn children merely as "potential life"—and
to prevent the people or their elected representatives from determining
Do All Legal Experts
Approve of Roe?
No. Roe has been criticized by several Supreme Court
justices and even by legal experts who favor legalized abortion. Justice Byron
White called it "an exercise of raw judicial power." Yale law professor
John Hart Ely has said that Roe is "a very bad decision .... It is bad
because it is bad constitutional law, or rather because it is not
constitutional law and gives almost no sense of an obligation to try to
be." Edward Lazarus, former clerk to Justice Harry Blackmun who wrote the
Roe opinion, says that "Roe, as constitutional interpretation, is
virtually impossible to defend."
Why Are Abortion
Advocates So Strongly Committed to Retaining Roe?
Roe v. Wade is increasingly recognized as bad law, bad
medicine, and bad social policy. Most Americans object to an unlimited right to
abortion. Therefore, such a policy can be kept in place only by extraordinary
measures—by insisting that Roe is untouchable, regardless of the evidence.
Abortion advocates know that any return of this issue to the democratic process
would produce a very different policy from what the Court created. But false
judicial doctrines do not have a right to live. Human beings do.
For more information on Roe
v. Wade including the full listing of questions and answers, visit: www.usccb.org/roe.
This issue of Life Issues Forum has been adapted
and excerpted from the July 2018 USCCB Fact Sheet by the same name: https://www.usccb.org/issues-and-action/human-life-and-dignity/abortion/upload/Roe-v-Wade-Q-s-and-A-s_Final_2018.pdf.