Do Not Affirm Roe v. Wade in the Partial-Birth Abortion Ban Act

May 24, 2000

Dear Member of Congress:

The House of Representatives may soon appoint conferees to resolve differences on the Partial-Birth Abortion Ban Act (S. 1692, H.R. 3660). I urge you to vote "no" on any motion to instruct the conferees to accept Senate language endorsing Roe v. Wade.

It is difficult to believe that at this time in our country's history and experience, and in the context of a bill prohibiting partial-birth abortion, Congress would seriously consider affirming Roe v. Wade. It was the legal and social fallout of Roe that allowed abortion providers to contemplate inventing the inhumane procedure that is partial-birth abortion in the first place.

Roe laid the groundwork for today's tragic environment in which abortion can be performed at any stage of pregnancy and for any reason. It was Roe, and cases relying on it, that sowed the idea that a woman has an almost unlimited right to a dead offspring. Is it any surprise, then, after a quarter century of Roe's corrosive influence, that abortion providers would begin killing nearly-delivered infants and calling it a constitutionally protected act?

In short, Roe gave rise to the virtual infanticide that is partial-birth abortion. It makes no sense to insist on praising the former if one recognizes the need to stop the latter.

It would be especially misguided to affirm Roe at a time in our nation's history when support for Roe's key holding has dramatically declined. A May 2000 Gallup poll shows that only 27% of Americans think abortion should be legal under any circumstances. Other polls show that even many people in this group would oppose Roe's policy of legalizing abortions in the second and third trimesters of pregnancy. The vast majority of respondents in the Gallup poll, 71%, favor making abortion illegal either in all circumstances, or in all circumstances except that very small percentage performed for rape, incest, or to save the mother's life. While the Senate-passed language on Roe in S. 1692 insists on calling abortion a "medical procedure," there is not even the flimsiest of medical rationales for most of the more than one million abortions performed in this country each year.

A congressional affirmation of Roe would also do a terrible disservice to women. A consensus is developing in the scientific community that abortion can have long-term negative effects on women. Many women have found themselves suffering from devastating psychological effects months or even years after an abortion. Even researchers who strongly support legal abortion now point to the many circumstances that increase a woman's risk for post-abortion suffering: e.g., youth, multiple abortions, abortion of a child with a disability, etc. These specific factors are relevant, respectively, to 22%, 48% and 7% of all abortions performed in the United States, representing hundreds of thousands of women each year. To affirm Roe in the face of this phenomenon is medically unsound and disrespectful to women.

Our nation is wrestling with the legal and cultural effects of Roe. Twenty-seven years after this decision was handed down, pro-life activism is alive in virtually every community across the United States. Even writers favoring legal abortion pen public examinations of conscience, agreeing in principle that abortion is "killing," "a bad thing," and "wrong." Congress should not ignore or contradict this compelling moral consensus, or the continuing evidence of abortion's contribution to a culture of violence -- a culture capable of permitting and protecting partial-birth abortion.

Finally, S. 1692 would have Congress declare that "Roe v. Wade was an appropriate decision and secures an important constitutional right." It is important to recognize that one cannot find a majority on the Supreme Court itself for such a statement. When the Court upheld key aspects of Roe in Planned Parenthood v. Casey in 1992, the Court's plurality opinion conceded:

We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest [in unborn life] came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions.... [W]e are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding.

Planned Parenthood v. Casey, 505 U.S. 833, 871 (1992)(O'Connor, Kennedy, Souter, JJ.) (emphasis added). The plurality suggested that Roe must stand because it had been in place for so long, because so many people had "relied" on it in making their lifestyle decisions, and because the Court might call into question its own "legitimacy" were it to reverse what the justices themselves said might be an "error." Id. at 869. In the end, said the Casey plurality with astonishing candor, "a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided." Id. at 864 (emphasis added).

The Court's stated concerns about precedent and its own credibility are not relevant to Congress's decision now. A congressional endorsement of Roe would itself be without precedent. A gratuitous decision to praise such a gravely flawed and intellectually discredited ruling would harm, not enhance, the credibility of Congress.

Please oppose any motion to instruct conferees to recede to the Senate on this matter.


Gail Quinn

Executive Director

Secretariat for Pro-Life Activities

National Conference of Catholic Bishops