Top 5 Myths About Roe v. Wade

Article Placeholder Image
By Christopher Coble, Esq. on February 06, 2017 6:00 AM

Depending on who you talk to, Roe v. Wade might be the Supreme Court's best or worst decision. It's certainly one of its most controversial. And whether or not you support the Court's ruling, you'll probably end up in a discussion at some point, talking about what it says and what it means for women, for pregnancies, or for the country.

Like many important court cases, there are plenty of misconceptions and misinformation about what Roe means and what its long-term legal impact has been. Here are the five biggest myths regarding the Court's ruling, and the truth behind them.

5. Roe v. Wade Is an Unpopular Opinion

Despite vocal and sometimes violent protests, abortion rights generally and Roe v. Wade specifically remain popular among the majority of Americans. The Pew Research center recently reported that 69 percent of people believe Roe should not be overturned, 59 percent believe abortion should be legal, and less than half of Americans believe abortion is morally wrong. In all, most of the country still supports Roe v. Wade and the reproductive privacy rights the ruling protects.

4. Roe v. Wade Was Responsible for a Spike in Abortions

According to the Guttmacher Institute, via the Washington Post, in the years before Roe was decided there were over one million illegal abortions performed in the U.S. annually. After Roe, that number remains around one million, performed legally.

3. Roe v. Wade Created Abortion Rights

It's a little more complicated than that. The heart of the ruling is based on privacy protections afforded by the Constitution. While the Constitution itself does not specifically state a right to privacy, the Supreme Court ruled in an earlier case that a woman's access to birth control fell under a "penumbra" of other rights, protecting "marital privacy" between a man and a woman. Roe expounded on a woman's privacy protection, extending those privacy protections to abortion rights within the first and second trimesters.

2. Roe v. Wade Legalized All Abortion

The Supreme Court attempted to balance a woman's privacy interests with state interest in protecting life, and did so long a general timeline of pregnancy:

  • During the First Trimester: A state cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions;
  • During the Second Trimester: A state may regulate abortion if the regulations are reasonably related to the health of the pregnant woman; and
  • During the Third Trimester: The state's interest in protecting the potential human life outweighs the woman's right to privacy, and it may prohibit abortions unless the abortion is necessary to save the life or health of the mother.

The Supreme Court abandoned Roe's trimester framework in 1992's Planned Parenthood v. Casey. Now, courts look at the "undue burden" abortion restrictions might place on a woman's rights.

1. The Supreme Court Could Overturn Roe v. Wade

No and yes. It's too late for the Court to return to the same case and change its mind. And the legal doctrine of stare decisis -- Latin for "let the decision stand" -- means future iterations of the Court are loathe to specifically overturn prior rulings. That said, the principles of stare decisis are not legally binding or uniformly enforced, and recent cases on reproductive rights have chipped away at the rights recognized in Roe.

While the 1992 case of Planned Parenthood v. Casey upheld a woman's access to legal abortion, it allowed the state to regulate aspects of abortion like imposing 24-hour waiting periods, informed consent requirements, parental consent provisions, and a record keeping mandates. And Gonzales v. Carhard in 2007 upheld the federal ban on so-called "partial-birth" abortions. Then again, the Court this year overturned Texas's abortion provider regulations that effectively shut down almost every clinic in the state.

So while it looks like the central principles of Roe will remain, the outer limits to abortions and surrounding reproductive rights protections will likely remain a legal battleground.

If you are facing tough decisions about building or starting a family, and if you feel your access to abortion needs to be protected, a family law lawyer can help.

Related Resources: