For Women in Law By Women in Law

Roe v. Wade – the Legal Drama Down South and Why We Should Care

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Roe v. Wade was a 1973 decision of the US Supreme Court. The case came about in 1970 when Jane Roe (a fictional name used in court documents to protect the plaintiff’s identity) filed a lawsuit against Henry Wade, who was the district attorney of Dallas County Texas, the county that Roe resided in. The underlying case was a challenge to a Texas law which made abortion illegal except by doctor’s orders to save a woman’s life. Roe alleged that the law was unconstitutionally vague and abridged her right of personal privacy.

The question for the court was the balance between the fundamental “right to privacy” which protects a pregnant woman’s choice whether to have an abortion and the government’s interest in protecting women’s health and protecting the “potentiality of human life”. The court in a 7-2 majority struck down the law, finding that a state law that broadly prohibits abortion without respect to the stage of the pregnancy or other interests, violates a woman’s right to choose to have an abortion, which falls within the right to privacy. The court recognized that the state has a legitimate interest in protecting the health of pregnant women and the “potentiality of human life” but held that the relative weight of each of these interests varies over the course of pregnancy, and the law must account for this variability.

As a result, the court found that in the first trimester of pregnancy the state has no role in regulating abortion decisions, that decision is up to the pregnant woman and her attending physician. In the second trimester the balance shifted for the court and they concluded that the state may impose regulations on abortions that are reasonably related to maternal health. In the third trimester the balance shifts entirely and the court held that as the fetus now had reached the point of “viability” the state had the right to regulate abortions or prohibit them entirely, as long as exceptions remained where abortion is necessary to save the life or health of the mother.

That has been the law since 1973 and has enabled access by women to safe abortions, to the right to choose what happens with their body. The question is not one of whether you are pro abortion or against abortion, the question is where the balance is tipped between the right of a woman to make a choice and the interests of the state to protect the potentiality of human life. The question is when does the state’s interest in protecting the potentiality of human life overtake the interest in being able to choose. The court in 1973 found that that balance was tipped when a fetus became viable.

All of that is set to change. The draft majority opinion which has been leaked and now widely circulated is a complete reversal of Roe v. Wade, returning the “issue of abortion to the people’s elected representatives”. The court’s opinion will not be final until it is published, but once it does become final, the immediate impact would be to end the guarantee of federal constitutional protection of abortion rights and instead allow each state to decide whether to restrict or even ban abortion. Rather than focusing on viability and the balancing of the privacy interests versus the state’s interests, the draft opinion states that the “viability” distinction “makes no sense”.

If the decision is made final, it will mean that the right to have an abortion or not will become a question for elected officials. There are 30 states in the US that would not be impacted as they have enshrined protections in state laws that ensure access to safe and legal abortions; however in the remaining states it would fall to elected officials to decide whether to ban or allow abortions, and the circumstances in which they will be allowed. Many states have passed laws banning abortion after 6 weeks, called heartbeat laws. It is these laws that have resulted in the court being asked to reconsider Roe v. Wade. Idaho has passed a law which not only bans abortion after 6 weeks but also provides for the right of a rapist’s family of the “preborn child” to sue an abortion provider. While these legislative changes are being proposed in the United States, they are undoubtedly still relevant in Canada. As our geographical neighbor, the ripple effect of prolific legislative changes are often felt across our borders. And, ripple effect aside, changes to laws negatively affecting women’s reproductive rights is an issue that all women – regardless of location – should speak up against.

The decision to have a child or not is a deeply personal one. It is one where often the decision is imposed, not as a result of a decision to embark on the path of motherhood. Almost without exception if a woman is considering terminating a pregnancy it is a pregnancy that was somehow unplanned, she did not embark on a path to become a mother. While her body is the home to the potentiality of human life, it is also the home to her human life. The decision to have a child is a decision that has significant, life altering, life-long consequences for the mother. The balance achieved by the court in Roe v. Wade was one that to me feels logical, protecting the integrity of a woman’s right to make this important decision while providing protections to the “potentiality of life”. If that balance falls, we must ask ourselves, what next?

The United States is the self-proclaimed leader of the free world, a bastion of democracy where the right to bear arms is a deeply held value. The draft opinion setting aside Roe v. Wade is a message loud and clear to the rest of the world that the value of a woman’s life is less than the value of the potentiality of a human life.  Many countries and cultures look to the United States and take their cues from the United States. Canada is no exception to that. Canadians look like Americans, dress like Americans and there is much culture cross over. While Canada has signaled that it will be a haven for those Americans who are seeking abortions, it would be naïve to think that Canada could not be subject to the same pressures that have led to this reversal of women’s rights. We must be vigilant to ensure that Canadian women do not face this same entrenchment on their rights. Regardless of whether you view abortion as a good thing or a bad thing, elimination of the choice for women is a giant step backwards in progress for women.


About the Author

Rose Keith, QC is associate counsel with Harper Grey. Not only is she a skilled mediator, she also maintains a multi-faceted practice focusing on workplace law assisting both employers and employees. In both realms, she is known for her broad subject matter expertise, legal acumen and sound judgment. Rose is a blur of perpetual motion lending her irrepressible enthusiasm to many different organizations and associations she passionately supports both inside and outside the legal community.

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