A woman’s right to choose,” is the key phrase for those who want to keep abortion legal. They seem to think that right was granted in Roe v. Wade, but it was not.
Roe v. Wade stands on two legs: the power to decide whether a woman can have an abortion, and the viability of the unborn child. Science is undermining previously held assumptions regarding viability, and now the Oklahoma legislature has passed a law (vetoed by the governor, but only on the grounds of vagueness, which invites the lawmakers to write a clearer law) which aims at the heart of Roe v. Wade, the doctor. The now muted Oklahoma law criminalized the doctor, and banned abortion with an exception only for the life (not the health) of the mother.
Let’s review the exact wording of Roe v. Wade. (XI: 1)
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [410 U.S. 113, 165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
The key provisions are: 1) the decision regarding abortion belongs to the attending physician (or, in (c), “appropriate medical judgment”), and 2) states have the right to place restrictions on abortion.
States have pushed the restrictions envelope, forcing ultrasounds, mandating the expensive transformation of clinics into mini-hospitals, requiring doctors to be affiliated with local hospitals, imposing waiting times, and so on. Oklahoma’s law criminalizing doctors is a new form of attack.
I was thirty-one in 1973, when the Roe v. Wade decision came down. For women who had risked having an illegal abortion, as I did, the relief was so welcome that we didn’t quibble with the language of the law. There were still few female doctors, lawyers, professors, senators, newscasters, and judges, but times were surely a-changin’. Hippy culture granted equality to women, and assertive feminists like Betty Friedan and Germaine Greer were stirring up the waters. It would take decades for the consequences of female liberation to sort themselves out, and we’re not done yet.
The social network supporting the right to abortion was frayed from the beginning. The first sign of danger was when doctors caved to pressure from religionists to ban abortion in individual hospitals, thus forcing reproductive services into separate clinics vulnerable to protesters and gunmen. We have all heard about the deaths, attacks, harassment, and danger that this isolation has caused.
We have been so delicate of spirit that even discussing abortion has been distasteful, leaving women to stand or fall as unprotected individuals.
Now Oklahoma has thrown down the gauntlet. Do we at last have the courage and the will to demand legislation that removes the decision from the doctor and gives it to the pregnant woman? Unless we do that, state laws will continue to rip Roe v. Wade to shreds. It should be thrown away and replaced with something more sturdy.
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