Roe v. Wade Forever

Legalized abortion's 33rd anniversary.

"If Alito replaces Justice Sandra Day O'Connor, the Court will shift in a direction that jeopardizes the fundamental values of freedom and privacy that a vast majority of Americans want protected," declares a sample letter that NARAL Pro-Choice urges supporters to email to their senators asking them to block Judge Samuel Alito's confirmation to the U.S. Supreme Court. The "freedom and privacy" that they fear Alito will put at risk is the high court's January 22, 1973 decision in Roe v. Wade that a woman has a relatively unfettered constitutional right to choose abortion during the first trimester of a pregnancy. Setting aside the still contested constitutional issue of the existence of a broad right to privacy (though if it doesn't exist, perhaps we should amend the Constitution to include it), how is abortion faring in the United States? Thirty years later, it's still a contentious muddle.

First, the number of abortions is down since the early 1990s. According to the Centers for Disease Control and Prevention, in 1973, the year Roe v. Wade was decided, there were 615,831 abortions which translates to an abortion ratio of 196 abortions per 1,000 live births and an abortion rate of 14 per 1,000 women between the ages of 15 and 44. The number of abortions peaked in 1990 at 1,429,247, yielding a ratio of 344 abortions per 1,000 live births and a rate of 24 per 1,000 women between the ages of 15 and 44. From that high, the number of abortions reported to the CDC had declined to 854,122 by 2002. (This number is artificially low, however. California, Alaska and New Hampshire stopped reporting their data to the CDC in 1998. In one year, the CDC estimated that women in California had 275,000 abortions, which would boost the U.S. total to more than 1 million.)

The Alan Guttmacher Institute compiles its own data from surveys of abortion providers. The institute's data indicate that there were about 800,000 abortions in 1973 and that the number doubled to around 1.6 million in 1990. Since then the number fell to just under 1.3 million in 2002. This implies that the CDC is missing data for about 450,000 abortions.

In any case, both data sets agree that the number of abortions in the United States declined during the 1990s and then essentially stabilized in the past few years.

Who gets abortions? Half of all pregnancies in the United States are unintended and about half of these unintended pregnancies are aborted. The CDC reports that 81 percent of the women who get abortions are unmarried and that 52 percent are under the age of 25. At current rates, one-third of American women will have had an abortion before they reach age 45. In Roe v. Wade, the Court declared that the state could limit fundamental rights only if the state had a "compelling interest" in doing so. Again setting aside the specific legal arguments, the Court further determined that states do not have such a compelling interest when it came to regulating abortions performed in the first trimester of pregnancy.

Thirty-three years later the vast majority of abortions occur in the court-sanctioned first trimester. Today, 60 percent of abortions occur before 8 weeks of gestation, and 88 percent of abortions are performed before the 13th week of gestation. (Interesting embryological note: at 8 weeks a fetus is 0.63 inches long and weighs 0.04 ounces; at 12 weeks, 2.13 inches and weighs less than half an ounce.) According to the CDC, fewer than 6 percent of abortions are done after 15 weeks of pregnancy (4 inches long and 2 and half ounces).

It is interesting to note that prescriptions for emergency contraception, the high dose birth control pills taken up to 72 hours after unprotected sex, have risen from 48,000 in 1998 when they were first approved to 310,000 in 2000. While usage of emergency contraception was increasing, the number of abortions dropped by about 35,000 between 1998 and 2000. This seems about right since only about 8 in 100 women who engage in unprotected sex during the second or third week of their cycle will get pregnant. Emergency contraception reduces this risk to 1 in 100.

As the Alito hearing made plain, the fight over abortion still vexes our national conversation. The nonpartisan public opinion research organization, Public Agenda, points out that despite a generation of constant wrangling over abortion, American public opinion remains as divided as it was when Roe v. Wade was first decided. In 1975, a Gallup poll found that 54 percent thought abortion should be legal only under certain circumstances; 21 percent thought it should be legal in all circumstances; and 22 percent thought it should be illegal. In 2003, another Gallup poll saw these numbers shift to 57 percent; 24 percent; and 18 percent, respectively.

So what circumstances determine whether abortion should be legal or not for the mushy middle? According to polling data cited by Public Agenda, large majorities of Americans think that abortion should be legal to protect the life and health of the mother, or in cases of rape or incest. Smaller majorities believe that abortion should be legal to protect a mother's mental health, or when there is evidence that the developing child is mentally or physically impaired. Americans also favor various restrictions on abortion including laws requiring physicians to explain alternatives, waiting periods, and parental consent for women under age 18.

But when push comes to shove, 65 percent of Americans don't think that the government should interfere with a woman's access to abortion. (A poll this past summer found that 62 percent agreed with that sentiment.) Nearly 60 percent oppose a constitutional amendment that would ban abortion and 60 percent also think that Roe v. Wade should not be overturned by the Supreme Court.

Most Americans believe that abortion is wrong, but they also believe that it would be more immoral for the government to interfere with their fellow citizens' private reproductive decisions. If the Supreme Court dared to overturn Roe v. Wade, there would be political hell to pay. However, because most Americans remain ambiguously uncomfortable with abortion, our political institutions will fitfully continue to try to narrow the scope of the decision. Nevertheless, the central holding that a woman can choose abortion in the first three months of a pregnancy will not be overturned. Ultimately, our politicians realize that Americans want the Roe v. Wade escape hatch to be kept open just in case they or their loved ones have to make the hard decision to use it themselves.