On March 2, the House Judiciary Subcommittee on the Constitution held a hearing entitled, “The Scope and Myths ofRoe v. Wade.”
In his opening remarks, Chair Steve Chabot (R-OH) explained that in 1973, “the United States Supreme Court constitutionalized abortion and effectively protected abortion on demand in America, subject only to limited regulations. This decision was unprecedented, and even prominent liberal constitutional scholars have said it was not grounded in the Constitution.” He added, “As evidenced by polling data, a majority of Americans support limiting abortion to specific circumstances including rape and incest and to save the life of the mother. Yet there remains a great misunderstanding by the public as to the real scope of Roe v. Wade, a misunderstanding that is exhibited in polling questions stating that Roe protects a right to an abortion in only the first three months of pregnancy. In fact, Roe is much more sweeping. And today’s hearing will examine both the legal and societal impact of Roe in addition to common misunderstandings of the decision.”
Ranking Member Jerrold Nadler (D-NY) said that most Americans “support the fundamental right of choice,” but “disagree on the specifics.” Pointing to a number of state laws attempting to restrict abortions and the newly appointed Supreme Court justices who are thought to be conservative-leaning, he argued that Roe v. Wade “is under attack as never before.” Rep. Nadler said that he planned to introduce legislation that would codify the Roe decision as a statute, adding, “Members need to go on record as supporting a woman’s right to choose.”
Helen Alvaré, an associate professor of law at Catholic University, said that Roe v. Wade “marked the transition from a country in which nearly every state banned the vast majority of abortions, to a country in which no state could ban virtually any abortion. This was the effective consequence of Roe’sdetermination that even in the third trimester of pregnancy, no state could ban any abortion if a doctor determined that it was necessary to preserve a woman’s ‘life’ or ‘health’ extremely broadly defined to include ‘all factors physical, psychological, emotional, familial, or the woman’s age relevant to the well-being of the patient.’” Pointing to the effects of Roe on family law, she said that the decision “has, first, championed the notion that the individual wants are more important than the common good of the family. Second, it suggests that adults’ wants are more legally significant than children’s needs and that parental rights are not necessarily derivative of parental responsibilities. Third,Roe not only elevated the constitutional status of sexual license, but did so without preserving traditional ties between sexual freedom and marriage of family. Fourth, Roe showed an easy willingness to usurp state legislatures’ family-lawmaking prerogative; it combined this with its selective use of empirical data, and reliance upon emotional claims. Later courts, especially in the case of same-sex marriage, have felt free to do the same.”
The subcommittee also heard testimony from Karen O’Connor, a professor of government at American University and director of the Women and Politics Institute, who explained that in Roe v. Wade the Supreme Court “held that the ‘right of privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.’ The Court also recognized that the decision of whether to have a child is unique to every woman and her life circumstances, and therefore must be a personal, individual decision.” Describing what could occur if the Supreme Court voted to overturn Roe v. Wade, she stated, “Four states (Alabama, Delaware, Massachusetts, and Wisconsin) have so-called ‘trigger’ laws on their books, so named because they are ‘triggered’ by the reversal of Roe, and would outlaw abortion immediately if the decision were overturned. Another thirteen states have abortion bans on the books that have been blocked by courts as unconstitutional. If Roe was overturned, officials in such states could immediately file suit asking a court to set aside the prior order that prevented enforcement of the state law…And, because the constitutional protections enunciated in Roeunderpin so many other fundamental rights that are critical to women’s health and well-being, Roe’s demise could open the door to future encroachments [on] these rights. For example, access to birth control also depends on the privacy right articulated in [Griswold v. Connecticut] and echoed in Roe. The availability of contraception is critical to reducing unintended pregnancies, reducing the number of abortions, and improving the health of women and their children. The ultimate safety of these rights depends in large measure on the security of Roe.”
