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End the Roe Litmus Test

by Maureen Bailey, Esq.
December 28, 2005

On January 9, the Senate Judiciary Committee will begin considering the nomination of Samuel Alito to the United States Supreme Court. Pro-choice Judiciary Committee Chairman, Arlen Specter promised that his first question to Judge Alito will concern Roe v. Wade.

Roe created a nationwide mandate to allow abortion on demand throughout pregnancy, and erected an impenetrable wall preventing any legal protection of the child's right to life at any point in pregnancy. During the first trimester, the Court prohibited any state oversight of abortion. During the second trimester, the Court merely allowed state regulation of abortion, and only to advance the woman's health. After viability, the point at which a child could be delivered and survive outside the womb, the Court pretended to allow states to ban abortion, but rendered any ban meaningless through Roe's companion decision, Doe v. Bolton. Roe says a state may proscribe abortion after viability "except where it is necessary . . . for the preservation of the life or health of the mother," but Doe broadly defines "health" to include "all factors – physical, emotional, psychological, familial, and the woman's age – relevant to the wellbeing of the patient." As a result, no meaningful restriction of abortion is constitutionally permissible at any stage of pregnancy.

As a consequence of this extreme ruling, the Court overturned the laws of all fifty states, including the handful of states that already had liberalized abortion laws to some extent.

Even Justice Ginsburg, a supporter of abortion rights, admitted Roe "ventured too far in the change it ordered."

The American public has never accepted the radical rule of Roe. In fact, according to a Zogby International poll, 87% of Americans support some legal restriction on abortion; a large majority (61%) support making abortion illegal after the unborn child's heart begins beating, which occurs around the 21st day after conception. Only 13% of Americans support abortion for the duration of pregnancy.

Aware of the public disapproval of Roe, the Court attempted to re-settle the issue in its 1992 decision Planned Parenthood v. Casey. While the Court allowed limited state regulation, such as informed consent and parental consent laws, it reaffirmed a right to abortion. Casey also affirmed the need for a health exception to any purported "ban" on post-viability abortions. Thus, even when a child could live outside the womb, abortion must be legal.

In 2000, the Court decided that the Roe abortion "right" includes even the right to abort a partly born infant.

According to Senator Specter, this now is the standard by which Supreme Court nominees will be judged, the first hurdle they must overcome. They must affirm support for the right to abort a child at any point in pregnancy for any reason or no reason, even if the child is partly-born.

It is time to end the Roe litmus test. Visit

Maureen Bailey is a public policy analyst with the USCCB Secretariat for Pro-Life Activities. 

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