This article is published as part of a series by Rewire and our colleagues in observance of the 37th anniversary of the Supreme Court decision on Roe v. Wade.
According to PersonhoodUSA, one of the reasons Roe v. Wade was wrongly decided is that the Court did not have available to it the “well-known facts of fetal development.”
To explain, PersonhoodUSA is an organization that seeks to establish new laws declaring full constitutional rights for the “unborn” from the moment of fertilization. Roe v. Wade is the name of the 1973 U.S. Supreme Court decision that recognized a woman’s fundamental right to choose abortion. According to PersonhoodUSA, “The science of fetology in 1973 was not able to prove, as it can now, that a fully human and unique individual exists at the moment of fertilization. . ..”
Today, on the thirty-seventh anniversary of Roe v. Wade, we thought it would be valuable to fact check that claim. What we found is that extremely similar claims about new science were, in fact, made to the Supreme Court when the case was being argued in 1971, 1972, and 1973. For example, in the written arguments to the court (called briefs) defending Texas’ anti-abortion law, lawyers for the State of Texas described in extraordinary detail “how clearly and conclusively modern science – embryology, fetology, genetics, perinatology, all of biology – establishes the humanity of the unborn child.” More than twenty-four pages of the State’s brief defending the Texas statute outlawing abortion were devoted to the argument that “medical science” established the need for such a law. An amicus (friend of the court) brief, filed in support of the Texas law by “certain physicians, professors and fellows of the American College of Obstetrics and Gynecology,” made the same argument.
Roe is gone. The chaos is just beginning.
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Just to be absolutely sure the U.S. Supreme Court Justices didn’t miss this point, the main brief and the amicus brief both included ten pages of photographs of actual fetal development. And, when it came time for the 1972 oral argument in the case, Texas Assistant Attorney General Robert C. Flowers didn’t forget to mention that “medical research” supported the law banning abortion. So the claim that Roe v. Wade was decided without the benefit of medical research and scientific knowledge concerning fetal development is simply not true.
Of course there have been important scientific developments in the last thirty-seven years. But the fact is, that “new” science can’t provide the basis for overturning Roe v. Wade. This is because no science changes what attorney Janet Gallagher calls the geography of pregnancy. Because pregnancy takes place within a woman’s body, there is no way to assign to fetuses separate legal rights without depriving pregnant women of their rights. That is why the Supreme Court refused to accept the argument that fetuses are separate legal persons. To have done otherwise would have created unprecedented law depriving women, upon becoming pregnant, of their fundamental rights – to bodily integrity, informed medical decision-making, due process, liberty, and life itself.
Thus, while Roe left states free to value and advance potential life in a variety of ways, the decision prohibited states from using fetal personhood as a basis for banning all abortions. This decision also prevented states from, for example, forcing a pregnant woman to undergo cesarean surgery, arresting her to stop her from having a home birth, or detaining her to make sure she follows her doctor’s advice to get bed rest.
Roe v. Wade stands for much more than the right to terminate a pregnancy. As the Supreme Court explained in later cases, Roe has been “sensibly relied upon to counter” attempts to interfere with a woman’s decision to become pregnant or to carry her pregnancy to term. Nearly one million women each year terminate their pregnancies, close to another million experience miscarriages and stillbirths, and more than four million women continue their pregnancies to term. Whatever PersonhoodUSA may claim about advances in the “science of fetology,” it can’t change the fact that each and every one of these women benefits from the Supreme Court’s decision in Roe v. Wade.