For further information:
Jessica Rodgers, 202-626-8825  mediarelations@nrlc.org

Roe at 40: Dispelling the Myths

“Roe allowed abortion in “the first trimester”

The notion that the “right to abortion” articulated in Roe v. Wade and Doe v. Bolton was limited in any significant way to “the first trimester” is a misconception that was repudiated by major news outlets decades ago, because it is gravely misleading.  Moreover, it has been explicitly repudiated by the Supreme Court itself.   Yet it still springs back, as recent news stories and polling surrounding the 40^th anniversary have incorporated the same misinformation.

In Roe, and in many subsequent decisions, the Court made it clear that abortion had to be allowed for any reason whatever through the second trimester.  The original ruling left the door open for minor medical-practice regulations to protect women's health in the second trimester, but it was clear from the language of the decision that these regulations could not amount to much, and they never did.  After months of research on the partial-birth abortion debate, Washington Post medical writer David Brown, M.D., accurately summarized the Roe v. Wade ruling in an article published Sept. 17, 1996, edition of that newspaper.  Dr. Brown wrote:

The landmark Supreme Court decisions Roe v. Wade and Doe v. Bolton, decided together in 1973, permit abortion on demand up until the time of fetal “viability.”

[Note:  References to Roe are generally understood to apply to Doe as well, since both decisions were issued on the same day, and the Court said in Roe, “That opinion and this one, of course, are to be read together.”] 

In another review of the history of Roe, written by Los Angeles Times Supreme Court reporter David Savage in 2005, Savage wrote:

Blackmun had said that abortion "must be left to the medical judgment of the pregnant woman's attending physician." So long as doctors were willing to perform abortions - and clinics soon opened solely to do so - the court's ruling said they could not be restricted from doing so, at least through the first six months of pregnancy.

But the most important sentence appears not in the Texas case of Roe vs. Wade, but in the Georgia case of Doe vs. Bolton, decided the same day. In deciding whether an abortion is necessary, Blackmun wrote, doctors may consider "all factors - physical, emotional, psychological, familial and the woman's age - relevant to the well-being of the patient."

It soon became clear that if a patient's "emotional well-being" was reason enough to justify an abortion, then any abortion could be justified.

http://www.nrlc.org/Judicial/Archives/SavageLATimes091405.html

The “first three months” formula was formally declared erroneous in the early 1980s by senior news executives of The New York Times, the Associated Press, and others.  For example, in 1982 the national editor of The New York Times decreed that “brief references to the Supreme Court's 1973 decision on abortion should say simply that the court legalized abortion,” because “the phrase ‘in the first three months of pregnancy’ might be incorrectly interpreted to mean that abortions in the last six months of pregnancy remain illegal.”  Associated Press Vice President and Executive Editor Louis D. Boccardi wrote in a September, 1981 directive, “The decision is often misreported, even now. . . . For summary purposes, you can say the court legalized abortion in 1973. . . . Thus, it’s wrong to say only that the court approved abortion in the first three months.  It did that, but more.” 

Anyone still laboring under the misconception that there was something different about “the first three months” was corrected again by the Supreme Court itself in the 1992 Casey ruling.  In that ruling, the Court reaffirmed Roe v. Wade on a vote of 5 to 4, and held that the “abortion right” applied with equal force throughout the first and second trimesters until “viability.”  The Court explicitly repudiated any distinction whatever between the first and second trimesters, writing, “We reject the trimester framework, which we do not consider to be part of the essential holding of Roe.”  Why, then, should pollsters continue to perpetuate the mischaracterization that Roe allows limitations on reasons for abortion after the first trimester.  In some cases,  it appears to reflect a desire, unconscious or otherwise, to “prettify” Roe – that is, to describe it in the manner least offensive to the greatest number of people.  

This is no marginal issue -- something on the order of 8 to 10 percent of all abortions are performed after "the first trimester."