Abortion on Demand: a History and Explanation of Why Any Woman in America Can End Any Pregnancy at Any Time, Even Up to the Day of Childbirth

July 23, 2009

Professor Matthew J. Franck gives us an excellent history of the state of abortion law in the United States in the context of the Judge Sotomayor hearings.  The sad fact is, many Americans do not know that “Supreme Court jurisprudence has manufactured a right to unfettered abortion right up to the time of the child’s birth.”  Professor Franck asks and answers, “How did Americans become so confused on this issue and how did the Supreme Court end up where it has?”  I highly recommend reading his full article, but I’ll provide some highlights here. 

He quotes the confirmation hearing Q&A:

Sen. Coburn: You’ve been asked a lot of questions about abortion. And you’ve said that Roe v. Wade is settled law. Where are we today? What is the settled law in America about abortion?

Judge Sotomayor: I can speak to what the court has said in its precedent. In Planned Parenthood v. Casey, the court reaffirmed the core holding of Roe v. Wade, that a woman has a constitutional right to terminate her pregnancy in certain circumstances. In Casey, the court announced that in reviewing state regulations that may apply to that right, that the court considers whether that regulation has an undue burden on the woman’s constitutional right. That’s my understanding of what the state of the law is.

Sen. Coburn: So let me give you a couple of cases. Let’s say I’m 38 weeks pregnant and we discover a small spina bifida sac on the lower sacrum, the lower part of the back, on my baby, and I feel like I just can’t handle a child with that. Would it be legal in this country to terminate that child’s life?

Judge Sotomayor: I can’t answer that question in the abstract, because I would have to look at what the state of the state’s law was on that question and what the state said with respect to that issue. I can say that the question of the number of weeks that a woman is pregnant has been—that approach to looking at a woman’s act has—was changed by Casey. The question is, is the state regulation regulating what a woman does an undue burden? And so I can’t answer your hypothetical, because I can’t look at it as an abstract without knowing what state laws exist on this issue or not. . . .

Professor Franck then provides the following analysis:

The judge’s answer to the senator’s question was miles wide of the mark, and indicated either that she does not know the truth about the constitutional law of abortion in our country, or that she is willing—for whatever reason—to mischaracterize the matter before a national audience. Senator Coburn had an opening here that cried out for exploitation, but he passed it by for the moment.

The next day, however, he returned to this subject, taking Judge Sotomayor through another brief exchange and pointing out to her that “the truth is, ever since January 22nd, 1973 [the day Roe was decided], you can have an abortion for any reason you want in this country,” and that the stage of one’s pregnancy at the time does not matter at all. The senator was perhaps too kind to the judge, when he might have leaned in and said with quiet intensity, “Why don’t you know this?”

But the sad truth is that too few Americans know this, even those with legal credentials.

Professor Franck then provides us with a thorough history of the Supreme Court’s abortion jurisprudence.  Professor Franck concludes from that history that:

the Supreme Court as presently constituted will not countenance an actual legislative ban on a whole class of abortions, defined either by their timing or by the reasons women give for wanting them. Many pro-life activists are in the habit of referring to “abortion on demand,” but may be familiar only with the broadest legal outlines of the phenomenon. Close students of the Court’s rulings over the last 36 years—and many of those close students are also in the pro-life ranks—can assure those activists that the phrase is perfectly accurate.

Professor Franck then concludes with respect to the nomination hearings:

Which brings us back to Judge Sotomayor. Judging from her record on the board of the Puerto Rican Legal Defense and Education Fund, she is every inch a pro-choice advocate, and she has been a federal judge for 17 years. She has no excuse not to know what Sen. Coburn was getting at. She has no excuse not knowing that abortion on demand has been the law of the land since January 22, 1973. She has even less excuse covering that up in a nationally broadcast congressional hearing, if she does know it.

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