Author(s): Morgan RG
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Abstract PIP: The attempt is made in this discussion to demonstrate that the Supreme Court in deciding the Roe v. Wade case should not have decided an abortion case when it did and that the opinion was almost destined to be bad in that the Court could find no persuasive rationale in the pre-Roe cases for each of the points in its decision. In 1973 political forces were actively debating abortion. Abortions had been prohibited by most states, except to save a woman's life, since the 19th century. In the 5 years immediately preceding Roe, 13 states had revised their statutes to resemble the Model Penal Code's provisions, which permitted abortions if the pregnancy threatened the woman's life, if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects. 4 states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. In short, in many states the political process had yet to decide on abortion, but Roe's rejection of Texas's statute voided almost every other state's statutes as well. Between 1970 and 1972, a flurry of constitutional challenges hit the courts. 3 years was hardly sufficient time for the judicial system to evolve sound analysis for such an emotionally charged issue as abortion. The Court could justifiably have allowed the dispute to simmer longer in the lower courts. There is some indication that a sounder case law might evolved if given time, but that was prevented by Roe. The Court could not find a rationale in 1973, but it decided anyway, suggesting a legislative rather than a judicial process.
This article was published in Mich Law Rev
and referenced in Arts and Social Sciences Journal