Justice Sandra Day O’Connor acknowledged this unprecedented role in 1983, when she criticized the court’s “continued functioning as the nation’s ‘ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.’ ”
None of the assumptions the justices made to justify Roe was based on any record evidence, and many have been contradicted by experience. Unforeseen by the justices, ultrasound arrived a few years later and forever changed public opinion. In addition, the justices drafted Roe on the notion that “abortion is safer than childbirth.” Nothing in the case record supported that claim, and no reliable data were cited by the justices. Yet the court has imposed Roe on the nation based on that myth.
By throwing out every existing abortion law, the justices created a public health vacuum, which they cannot fill and have prevented the states from filling. In 43 years, the justices have never expressly approved state health and safety regulations in the first trimester, when 90 percent of abortions are done. (Whether they will in the pending Texas abortion case remains to be seen.)
The justices also issued Roe without a reliable abortion data-collection and record-keeping system – something absolutely necessary for women’s health. No federal law requires the reporting of abortion numbers or complications or deaths. There are only two sources of national data in the country: the federal Centers for Disease Control and Prevention in Atlanta and the Alan Guttmacher Institute, which is basically the research arm of Planned Parenthood, the nation’s largest abortion provider. The reporting of data to both is voluntary.
As a result, that number of annual abortions reported by the CDC and the media is based on estimates. Consequently, the reported rate of complications from abortion cannot be reliable. Without reliable data, women are left in the dark about the risks and cannot give truly informed consent.
Despite their technical legal control, the justices cannot monitor clinics or providers to protect public health, as state or local public health officials normally do. They cannot intervene to remedy substandard conditions or clinics. They cannot monitor medical developments or the growth of dozens of peer-reviewed international medical studies finding an increased risk in preterm birth, breast cancer, and mental trauma after abortion.
The notion that abortion is “between a woman and her doctor” became a myth many years ago. As O’Connor also observed in 1983, “The record in this case shows that the [physician-patient] relationship is nonexistent.” Very few women know the practitioner, or his/her name ahead of time. And very few will ever see him/her again.
Roe v. Wade is unsettled and unworkable. We have reached a point where federal judges are striking commonsense health and safety regulations for the dubious goal of “access,” which means keeping substandard clinics open at all costs. This is to maintain population control – what Justice Ruth Ginsburg referred to “frankly” in a July 2009 interview as “growth in populations that we don’t want to have too many of” – and has nothing to do with women’s health.
Is Roe v. Wade unraveling?