AAL Insight: Roe-ll it Back

Feb 10, 2018

Written By Jack J Collins, Editor of AllAboutLaw.co.uk

With the recent death of Norma McCorvey and a resurgence for Republicanism across America, there’s talk of a change in the abortion laws. We take a look back at their history and examine whether there could actually be a change in the forthcoming years.

Norma McCorvey

“I wasn’t the wrong person to become Jane Roe, I wasn’t the right person to become Jane Roe. I was just the person who became Jane Roe.”

Norma McCorvey is the true name of the woman who became the eponymous Jane Roe in the famous Roe v Wade case which in 1973 legalised and established the basic right for women to be able to have abortions in America.

After a troubled childhood, and the forced adoption of her first child by her mother, as well as numerous abusive relationships, McCorvey fell pregnant for a third time in 1970.

McCorvey first claimed that she had been raped, in the hope that it might be able to win her the right to a legal abortion, but after both that and an illegal abortion had fallen through, a monumental partnership was forged which would change women’s rights in America forever.

Already five months pregnant, McCorvey met Dallas lawyers Sarah Weddington and Linda Coffee, who were attempting to challenge the law but needed a case to be their spearhead. McCorvey wanted her abortion quickly, and the lawyers jumped at the opportunity.

Given the pseudonym Jane Doe (in accordance with the John Doe/Jane Doe which was commonly used for anonymous litigants), McCorvey’s case became the epicentre of a three year legal dispute which was filed against the Dallas district attorney Henry Wade.

The Case

There were a number of preceding cases which needed to be addressed before the Roe case was heard, so it never got to court until 1971, whereupon there was a first round of arguments. However, two new justices needed to be appointed halfway through the process, and thus the case was reargued in October of 1972.

Early in 1973 the Court made their decision, voting 7-2 in favour of Roe, Weddington and Coffee, and thus enshrining the legal right of abortion for women in the constitution of the United States of America. In doing so, they also subconsciously subjected all attempts to restrict this right to the principle of strict scrutiny.

Sadly, this result came nowhere near soon enough for McCorvey, who had given birth in early 1971 and given the child up for adoption. In fact, she didn’t really have too much contact with the case at all, and was living quietly with her partner by the time the verdict was announced, shunning the spotlight.

The uncovering of Roe

In the 1980’s McCorvey announced herself on the national stage and began counselling women at abortion clinics, as well as speaking at pro-abortion rallies. A divisive figure from the get-go, this was made worse when the story about her made-up ‘rape’ was publicised, even though this didn’t affect the later court case in any way.

McCorvey was decried as a ‘baby killer’ and a murderer, as well as receiving a number of death threats, but she still spoke at one of the largest ever pro-choice rallies in Washington in 1989, which was the same year that Holly Hunter received an Emmy Award for her portrayal of McCorvey in Roe vs Wade on NBC.

A drastic change of Damascan proportions happened, however, in 1995. Whilst working for ‘A Choice for Women’, an evangelical Christian group ‘Operation Rescue’, moved in next door. McCorvey grew close to its leader, a certain Flip Benham, who converted and baptised McCorvey in the summer of that year as she hopped sides and took Jesus for her saviour.

Pro-life activists were exultant. “The poster child has jumped off the poster,” the head of Texans United for Life made a point of highlighting at the time. Most pro-choice groups weren’t that fussed – Weddington stated that all McCorvey had ever done was “sign a one page legal affidavit.”

Her last major action was to appear in a TV commercial urging people not to vote for Barack Obama in the 2012 Presidential Elections. “Don’t vote for him,” McCorvey states against a background of unborn foetuses – “He murders babies.” McCorvey died this month, with her last wish, to see Roe v Wade overturned in her lifetime, unfulfilled. But does it remain a possibility?

The future of the Bill

There is significant scepticism amongst the US legal world that there is any danger of Roe v Wade being overturned anytime soon. To begin with, it’s unlikely that any case challenging it would even get to the Supreme Court, because they would first have to get through a number of lower courts, where these cases almost always are ruled against.

Even if Neil Gorsuch, Trump’s nominee for the Supreme Court, is installed; the current structure of the court means that there still aren’t enough votes to overturn something like Roe v Wade – and it is still unclear what Mr Gorsuch’s actual position on the matter is.

However, that doesn’t mean that the law is untouchable by any stretch of the imagination. In fact, Republican strategy for years has revolved around the idea that by poking as many holes as possible in the Roe ruling that the protections it provides for abortion rights become severely weakened.

There are individual state laws which force women seeking an abortion to attend counselling sessions where their motives are questioned, as well as waiting 24 hours or longer for the actual procedure to take place. There are further regulations meaning that after 20 weeks abortion becomes much more heavily scrutinised, and new blocks on public funding for abortion, meaning that those most in financial difficulty can be denied the procedure.

In fact, since 2010, there have been 338 new legal restrictions put in place on abortion procedures across the United States of America.

What next?

In Oklahoma at the end of last year, there was a proposal that a woman should have to get the permission of the man who impregnated her in order to successfully be granted an abortion. In what are widely accepted as outrageous scenes, one legislator attempted to suggest that a pregnant woman’s body is not her own because she is simply ‘a host’. Whilst these claims are hard to process, they’re not a real threat because constitutionally a woman’s body is her own.

What’s more concerning in that sense is the smaller laws that are chipping away at Roe v Wade. There are a number of states attempting to ban a common abortion procedure because it’s ‘cruel to the foetus’, additional costs and regulations which are forcing some abortion clinics to shut down because it’s not financially viable to stay afloat, and even laws such as one in Texas which limited the number of clinics in an area, forcing around 20 to close.

Even though this regulation was overturned and deemed unjustifiable and unconstitutional, the damage was done, and many clinics will not reopen. Trump’s administration plan on removing the public funding from Planned Parenthood, and enact legislation making it harder for future administrations to restore public funding to abortion clinics. They also want to ban abortion after 20 weeks and take away insurance coverage, which, with the planned repeal of Obamacare, will hit some people extremely hard.

The Democrats retain enough Senate seats to filibuster legislation, but the nuclear option remains in Trump’s hands. Whilst there seems to be no immediate threat to the overall legality of abortion in the US, things appear to be about to get much more difficult.

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