Mary Shaw

Mary Shaw
Philadelphia, Pennsylvania, USA
May 07
Mary Shaw is a Philadelphia-based writer and activist, with a focus on politics, human rights, and social justice. She is a former Philadelphia Area Coordinator for the Nobel-Prize-winning human rights group Amnesty International, and her views appear regularly in a variety of newspapers, magazines, and websites. Note that the ideas expressed here are the author's own, and do not necessarily reflect the opinions of Amnesty International or any other organization with which she may be associated. E-mail:

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JUNE 7, 2010 6:31AM

Can Roe survive?

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Roe v. Wade is established law in the United States of America. But that isn't stopping some states from trying to undermine it as much as possible via their own anti-choice legislation, unconstitutional though some of it might seem.

In April, for example, Nebraska criminalized abortions after 20 weeks. However, under Roe, a woman has the right to an abortion until fetal viability, which is generally believed to occur somewhere between 24 and 28 weeks.

So, some might expect that the Nebraska law will find its way into the courts. And some might expect that it would ultimately be struck down based on Roe.

But I'm not so confident.

As the tea party movement continues to demonstrate, a very vocal far-right contingent is gaining more and more influence in government.

So the anti-choice crowd is taking advantage of the current political climate, and is working overtime to push its agenda, with small steps as well as large ones.

Already, Arizona, Tennessee, and Mississippi have implemented limits or outright bans on abortion coverage in health care exchanges under the new health care reform legislation. And other states are pushing for similar measures.

In Oklahoma, any woman who wants an abortion is subjected to an intrusive vaginal-probe ultrasound while being forced to view the fetus as the physician describes it in detail.

Perhaps even worse, given the departure of the fairly liberal Justice John Paul Stevens from the Supreme Court, I'm not convinced that Roe is safe from being overturned by the Roberts Court, if given the chance anytime soon.

Forget any kind of legislative push-back from Washington. Given that a Democrat forced an anti-choice compromise in order to pass the health care reform bill, we can't count on Congress to reinforce Roe at a legislative level.

So, if Roe is indeed ever overturned (perish the thought), abortion rights will likely revert to the jurisdiction of the individual states, many of which may outlaw it completely. In fact, North Dakota is already prepared, having enacted a near-total ban on abortion in 2007 which would become effective if the Supreme Court overturns Roe v. Wade. Under the ban, abortion providers could face up to five years in prison.

And so, if Roe is indeed ever overturned, women in some so-called red states may find themselves unable to obtain a legal (and safe) abortion without traveling to a state that allows it.

That's no solution for the women who cannot afford to explore their long-distance options.

And, sadly, those are the women who most need a choice.

Author tags:

pro-choice, abortion

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"Roe v. Wade is established law in the United States of America."

Sorry Mary, I have more than a few problems with this post. Not philosophically but in execution. i.e. Your opening sentence. Roe v Wade/Doe v Bolton are not "established law". They are decisions not law. They are precedents of case law establishing the privacy right of a woman in so far as the termination of a pregnancy is involved. Much has been done to try to erode the precedent but the fundamental principle has remained. I am confident that court challenges to laws like the one passed in Oklahoma will reinforce the right and hold that Oklahoma's requirements are legislated attempts to restrict the right and almost literally create a "pandering" of one perspective and an "assault" on the person seeking the procedure.
And, unfortunately, I find myself torn. I absolutely support this right for women. I have some problems with using public monies to finance it or suggesting that it is a procedure that should be covered by health insurance. And yet, for the poor, who cannot otherwise afford this procedure, there must be some sort of recourse.
What I find continually disconcerting is that there is a fundamental right guaranteed by Roe v Wade--privacy. The right to one's own privacy involving choices. It's absolutely fundamental. The specific issue--abortion--has obfuscated that over the years. But the fundamental right is an absolute basic building block of any of our freedoms and rights in America.
Walter, so then you disagree with Justice Sotomayor, show herself said it is established law? -
I meant "who herself said..."
I was quibbling over linguistics (my research methodology when I wrote my Master's thesis titled "The Supreme Court, Philosophy and Freedom of Choice: An Analysis", 1976). Roe v Wade focused on the right to privacy in a general sense that right is, by and large, now considered to be fundamental. Likewise, the right to privacy respecting abortion has been reinforced multiple times although legislatures in various states have with some degree of success tried to whittle it down to as narrowly construed a right as possible and attempt to constrict it by placing oftentimes onerous burdens on individuals and/or physicians.
The worrisome aspect of using a term like "established law" is that it provides fodder to those who complain bitterly about "judicial activism" and "legislating from the bench". Case law defends these rights. Is that de facto or de jure "established law". A great debate could be waged over that quarrelsome semantic issue alone.
And finally as to "established law", yes I still have a problem with it. Roe v Wade establishes, reinforces and defends a fundamental right. Laws that have been passed have tried to whittle away at it but so far have been unsuccessful at eliminating it. This is why I say that it is unfortunate that such a fundamental right is so intrinsically intertwined with such a contentious issue. At some point you may wish to read a U.S. govt. publication from the mid-70's titled "Constitutional Aspects of the Right to Limit Childbearing". I hope that it has been updated over the past 3 and a half decades.