Roe Reality Check
  Download
English
Download
Spanish

Brief, informational booklet highlighting 15 basic facts about Roe v. Wade
or its impact.

To order full-color print copies, call 1-866-582-0943 and ask for Item #0532.

#1: Abortion is legal through all 9 months of pregnancy.

 
#2: Abortions are rarely done for maternal or fetal health problems, or in
cases of rape or incest.

 
#3: Most Americans actually oppose U.S. abortion law.

 
#4: Legal commentators who support legal abortion have said Roe is not good constitutional law.

 
#5: Supreme Court Justices have criticized Roe v. Wade.

 
#6: The U.S. abortion rate is among the highest of all developed countries in the world.

 
#7: Most American women do not support Roe v. Wade.

 
#8: Most abortions are done after the fetal heart has begun beating.

 
#9: Nearly half of all abortions are performed on women who have had at least one.

 
#10:

Even a child who is partially born can be legally aborted. — UPDATED, see note below.


 
#11:

If Roe is overturned, abortion policy will be decided through the democratic process in each state.


 
#12: Roe has often been cited by state and federal judges to endanger human beings already born.

 
#13: Abortion is outside mainstream medicine.

 
#14:

Legalized abortion has made it easy for others to pressure women into having abortions.



#1 myth: “High Court Rules Abortions Legal the First 3 Months.”[1]
  FACT: Abortion is legal through all 9 months of pregnancy.

In Roe v. Wade the Supreme Court ruled that abortion may not be restricted at all in the first trimester.[2] In the second trimester abortion may be regulated only for the mother’s health.[3] After “viability,” abortion may be prohibited except where necessary to preserve the mother’s health. [4]

Roe’s companion case, Doe v. Bolton, defined maternal “health” as: “all factors - physical, emotional, psychological, familial, and the woman’s age - relevant to the well-being of the patient.”[5]

Thus, abortion is legal -- and cannot be prohibited -- in the 7th, 8th, or 9th months of pregnancy if any of these reasons is invoked.[6]

“[N]o significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy.”[7]


#2 myth: Most abortions are done because of maternal or fetal health problems, or in cases of rape or incest.
  FACT: Abortions are rarely done for these reasons.

According to an Alan Guttmacher Institute survey,[8] women cite these as the main reason for an abortion in a very small percentage of cases each year:

  • 1% “rape or incest”
  • 3% “woman has health problem” (physical or mental)
  • 3% “fetus has possible health problem”[9]

For all other abortions, the main reason cited is:

  • 21% “unready for responsibility”
  • 21% “can't afford baby now”
  • 16% “concerned about how having a baby could change her life”
  • 12% “has problems with relationship or wants to avoid single parenthood”
  • 11% “is not mature enough, or is too young to have a child”
  • 8% “has all the children she wanted, or has all grown-up children”
  • 1% “husband or partner wants woman to have abortion”
  • 1% “doesn't want others to know she has had sex or is pregnant”
  • <0.5% “woman's parents want her to have abortion”
  • 3% “other”

Under Roe v. Wade, abortions for these reasons or any other reason must be legally permitted.[10]


#3 myth: Most Americans favor U.S. abortion law.
  FACT: Most Americans actually oppose it.

A recent Harris Interactive poll claims 52% of Americans favor Roe v. Wade and 47% oppose it.[11] But the poll describes Roe as "the U.S. Supreme Court decision making abortions up to three months of pregnancy legal."

That's wrong. The fact is, Roe made abortion legal through all 9 months of pregnancy.[12]

In the same poll, 72% of Americans said abortion should be illegal in the second three months of pregnancy, and 86% said abortion should be illegal in the last three months of pregnancy.

Even support for abortion in the first three months is open to question. In a 2004 Zogby International poll, 61% of Americans said abortion should not be permitted after the fetal heartbeat has begun.[13] This occurs in the first month.[14]

So why do 52% of Americans say they favor Roe v. Wade?

Because they don't really know what Roe did.


#4 Roe said the Constitution includes a right to abortion.
  Yet even legal commentators who support legal abortion have said Roe is not good constitutional law.

Roe v. Wade is "a very bad decision...because it is not constitutional law and gives almost no sense of an obligation to try to be."[15]

- John Hart Ely, Yale Law School professor

"As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible… [It is] one of the most intellectually suspect constitutional decisions of the modern era."[16]

- Edward Lazarus, former clerk to Justice Blackmun (who authored Roe)

"Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion."[17]

- Benjamin Wittes, Washington Post legal affairs editorial writer

"One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."[18]

- Laurence Tribe, Harvard Law School professor


#5 Supreme Court justices have criticized Roe v. Wade.

"I find nothing in the language or history of the Constitution to support the Court's judgment" in Roe v. Wade.[19]

- Justice Byron White

"This Court's abortion decisions have already worked a major distortion in the Court's constitutional jurisprudence…no legal rule or doctrine is safe from ad hoc nullification by this Court … in a case involving state regulation of abortion."[20]

- Justice Sandra Day O'Connor

Roe v. Wade "destroyed the compromises of the past, [and] rendered compromise impossible for the future… [T]o portray Roe as the statesmanlike 'settlement' of a divisive issue…is nothing less than Orwellian."[21]

- Justice Antonin Scalia

Roe v. Wade "was grievously wrong."[22]

- Justice Clarence Thomas

"Roe v. Wade…ventured too far in the change it ordered and presented an incomplete justification for its action."[23]

-Justice Ruth Bader Ginsburg


#6 myth: The U.S. abortion rate is relatively low.
  FACT: It is among the highest of all developed countries in the world.

In 1973 the Supreme Court in Roe v. Wade deemed "every [abortion] law - even the most liberal - as unconstitutional."[24]

Today the U.S. has the highest abortion rate in the western world, and the third-highest of all developed nations worldwide.[25]

There are 1.31 million induced abortions annually in the U.S., or 3,500 every day.

24.5% of all U.S. pregnancies end in abortion or 3,500 every day; 24.5% of all U.S. pregnancies end in abortion. [26]


#7 myth: Most American women support Roe v. Wade.
  FACT: Most do not.

Roe v. Wade legalized abortion throughout pregnancy, for virtually any reason[27].

Yet according to a national survey of women published by the Center for Gender Equality, "only 30% think abortion should be generally available."[28]

In fact, most women say abortion should be substantially limited or never permitted:

  • 17% said abortion should never be permitted.
  • 34% said abortion should be permitted only in cases of rape, incest, and to save the woman's life.[29]

And when asked to rank 12 issues in order of importance for the women's movement, women ranked "Keeping abortion legal" next to last.[30]


#8 myth: Most abortions are done before fetal organs are functioning.
  FACT: Actually, the vast majority are done after the fetal heart has begun beating.

A fetal heart begins to beat at about 21 or 22 days after fertilization.[31]

That's at about 3 weeks of development.

77% of abortions in the United States are done well after this point.[32]


#9 myth: U.S. abortion law has not encouraged the use of abortion as a method of birth control.
  FACT: Nearly half of all abortions are performed on women who have already had at least one.

Today, 48% of women having an abortion in the United States have had at least one previous abortion.[33]

In some states the rate of repeat abortions is much higher.

In Maryland, for example, 71.4% of those having an abortion

have already had at least one. And 16.4% have had at least three prior abortions.[34]


PLEASE NOTE: Reality Check #10, first written in 2005, has been updated in light of the Supreme Court’s majority decision in Gonzalez v. Carhart (April 2007).

#10 myth: Abortion is legal only when the fetus is in the womb.
  FACT: Even a child who is partially-born can be legally aborted.

Partial-birth abortion kills a fetus during the process of delivery.

At first, abortion providers said it was rare, and used only on women whose lives were in danger or whose fetuses were damaged.

But Ron Fitzsimmons, then the Executive Director of the National Coalition of Abortion Providers, admitted he had "lied through my teeth."[35]

He admitted that most partial-birth abortions are not done for "extreme circumstances" but are "primarily done on healthy women and healthy fetuses."[36]

In 2000 the Supreme Court said states cannot ban partial-birth abortion even with an exception to save the mother's life.

The Court said such a ban violates "the woman's right to choose" established by Roe v. Wade.[37]

UPDATE:

In the April 2007 case, Gonzales vs. Carhart, the Court upheld a federal ban on partial-birth abortion, saying it is not unconstitutionally vague, and does not impose an undue burden on a woman's right to an abortion.  The ban defines partial-birth abortion in terms of precise anatomical markers, depending on whether the fetus is delivered head-first or in a breach presentation. A partial-birth abortion is an abortion procedure in which the practitioner:

"(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and

"(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus. ..."


#11 myth: If Roe v. Wade is overturned, abortion will automatically be illegal in the U.S.
  FACT: If Roe is overturned, abortion policy will be decided through the democratic process in each state.

Before Roe v. Wade, all states permitted abortion if necessary to save the mother's life, and some permitted abortion in additional circumstances.[38]

But Roe deemed "every [abortion] law - even the most liberal - as unconstitutional."[39]

As a result, no state can prohibit any abortion at any time during pregnancy.[40]

If Roe is overturned, policy decisions about abortion will be made by the citizens of each state through the democratic process, rather than by courts.

Some states will place limits on abortion, in others there will likely be few limits.[41]

Not until Roe v. Wade is reversed
will the people be able to govern themselves again
on the important public policy issue of abortion.


#12 myth: Roe v. Wade is only about a woman’s right to abortion, not about a right to take life in general.
  FACT: Roe has often been cited by state and federal judges to endanger human beings already born.

In 1986, relying on Roe, the Supreme Court invalidated a law intended to ensure care for children born alive during attempted abortions.[42]

In 1983, a U.S. district court invalidated a federal regulation to prevent medical neglect of handicapped newborns in hospitals receiving federal funds. The court said the regulation may “infringe upon the interests outlined in cases such as … Roe v. Wade.”[43]

In 1980, a New York court cited Roe in a “right to die” case, arguing that the “claim to personhood” of a terminally ill comatose patient “is certainly no greater than that of the fetus.”[44]

In 1993, a Michigan judge cited Roe in dismissing criminal charges against Jack Kevorkian and declaring that the state law against assisted suicide was unconstitutional.[45]

And in 1996, the U.S. Court of Appeals for the Ninth Circuit relied heavily on Roe and its successor, Planned Parenthood v. Casey, in finding a constitutional “right” to assisted suicide.[46]

While some of these rulings were later modified or reversed, they all underscore how Roe v. Wade has been used to argue that ideas of privacy and liberty can trump life itself -- after as well as before birth.


#13 myth: Abortion is standard medical practice; only religious hospitals and some physicians refuse to provide it.
  FACT: Even abortion advocates acknowledge that abortion is outside mainstream medicine.

The vast majority (86%) of all U.S. hospitals whether religious or secular, public or private, do not participate in abortions.[47]

71% of abortions in the United States are performed in free-standing abortion-dedicated clinics. Only 5% are performed in hospitals, 2% in physicians’ offices and 22% in other kinds of clinics.[48]

A New York Times Magazine article reports, “The overwhelming majority of abortions are performed by a small group of doctors. (Some 2 percent of OB-GYN’s carry the burden, performing more than 25 per month).”[49]

The medical community’s stigmatization of abortion is acknowledged by Physicians for Reproductive Choice and Health, which says one of its “primary strategic goals is to eradicate the stigma that has become attached to abortion and abortion providers within mainstream healthcare.”[50]


#14 myth: Roe v. Wade empowers women to choose freely whether abortion is their best option.
  FACT: Legalized abortion has made it easy for others to pressure women into having abortions.

Not freedom, but “lack of control over one’s life” is associated with high abortion rates, as is “lack of financial and social resources.”[51]

An on-line survey of women who had abortions showed that many women feel pressured by the baby’s father: 85% of fathers offered no encouragement to continue the pregnancy. When women said they wanted to continue the pregnancy, the fathers’ dominant reactions were; “Slightly Upset 60%, Mad 38%, Very Angry 43%”, compared to “Happy .7%.” 73% of fathers suggested an abortion. [52]

80% of the women surveyed experienced guilt, 83% regret, 79% loss, 62% anger, and 70% depression.

Even a website which encourages women to consider abortion “so they can freely decide if it is their choice”[53] elsewhere posts personal stories describing pressure, coercion or abandonment by the baby’s father.[54]



[1] New York Times, January 23, 1973, A1; see also Associated Press-Ipsos Poll, November 19-21, 2004: “Roe v. Wade made abortion in the first three months of pregnancy legal.”

[2] In the first trimester, “the abortion decision ... must be left to the medical judgment of the pregnant woman’s attending physician.” In the second trimester, the State may “regulate the abortion procedure in ways that are reasonably related to maternal health.” Roe v. Wade, 410 U.S. 113, 164 (1973).

[3] In the second trimester, the State may “regulate the abortion procedure in ways that are reasonably related to maternal health.” Roe, 410 U.S. at 164.

[4] After viability, the State may “proscribe” abortion “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Roe, 410 U.S., at 164-65.

[5] Doe v. Bolton, 410 U.S. 179, 192 (1973). The “Doe v. Bolton ... opinion and this one, of course, are to be read together.” Roe, 410 U.S., at 165.

[6] In Planned Parenthood v. Casey, the Court abandoned the trimester framework but reaffirmed the legality of abortion “subsequent to viability” for the “preservation of the ... health of the mother.” 505 U.S. 833, 879 (1992).

[7] Senate Rep. No. 98-149, at 6 (1983).

[8] A. Torres and J. Forrest, “Why Do Women Have Abortions?,” 20.4 Family Planning Perspectives 169-76 (July/Aug. 1988); still the best source of U.S. data according to A. Bankole et al., “Reasons Why Women Have Induced Abortions: Evidence from 27 Countries,” 24.3 Family Planning Perspectives 117-125, & 152 (Aug. 1998).

[9] In most of these cases, no doctor had told the woman her child would have a defect or abnormality. See Torres, supra note 8, at 172.

[10] See supra notes 2-7.

[11] The Harris Poll #18, March 3, 2005.

[12] See supra notes 2-7.

[13] Zogby International Poll, April 15-17, 2004.

[14] Keith L. Moore and T.V.N. Persaud, The Developing Human: Clinically Oriented Embryology, 7th edition: Philadelphia: W.B. Saunders Co., 2003, at 330.

[15]"The Wages of Crying Wolf: A Comment on Roe v. Wade," 82 Yale L.J. 920-49 (1973) at 947.

[16]"The Lingering Problems with Roe v. Wade," FindLaw's Writ, Oct. 3, 2002, http://writ.news.findlaw.com/lazarus/20021003.html.

[17] "Letting Go of Roe," The Atlantic Monthly, January/February 2005, p. 48.

[18] "Toward a Model of Roles in the Due Process of Life and Law," 87 Harv.L.Rev. 1 (1973) at 7.

[19] Doe v. Bolton, 410 U.S. 179, 221-22 (1973) (White, J., with whom Rehnquist, J., joins, dissenting).

[20] Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 814 (1986) (O'Connor, J., with whom Rehnquist, J., joins, dissenting) (internal citation omitted).

[21] Planned Parenthood v. Casey, 505 U.S. 833, 995 (1992) (Scalia, J., with whom Rehnquist, C.J., White and Thomas, JJ., join, concurring in the judgment in part and dissenting in part).

[22]Stenberg v. Carhart, 530 U.S. 914, 980 (2000) (Thomas, J., with whom Rehnquist, C.J., and Scalia, J., join, dissenting).

[23] Stenberg v. Carhart, 530 U.S. 914, 980 (2000) (Thomas, J., with whom Rehnquist, C.J., and Scalia, J., join, dissenting).

[24] The Associated Press, “Ginsburg: Roe decision seemed ‘not the way courts generally work’,” March 11, 2005 (quoting Supreme Court Justice Ruth Bader Ginsburg).

[25] The Alan Guttmacher Institute, “Abortion in Context: United States and Worldwide,” 1 Issues in Brief 3-5 (1999).

[26] Lawrence B. Finer and Stanley K. Henshaw, “Abortion Incidence and Services in the United States in 2000,” 35.1 Perspectives on Sexual and Reproductive Health 8 (Jan./Feb. 2003).

[27] See supra notes 2-7.

[28]“Progress and Perils: How Gender Issues Unite and Divide Women, Part Two,” Center for Gender Equality, April 7, 2003 (conducted by Princeton Survey Research Associates) at 9-10.

[29] Id. Approximately 2% of abortions are done for these reasons. See Torres, supra note 8. See Data from Centers for Medicare & Medicaid Services, U.S. Department of Health and Human Services (showing drop in Medicaid-funded abortions by over 99%— from 294,600 in Fiscal Year 1977 to fewer than 1,000 in FY 1982 and subsequent years—after the federal Medicaid program began funding only abortions to save the mother’s life).

[30] “More girls in sports” was ranked last. “Progress and Perils”, supra note 28 at 4.

[31] Moore and Persaud, supra note 14 at 70.

[32] Only 23% are done before or during the 6th week of “gestational age” counting from the last menstrual period, or the 4th week of development. Centers for Disease Control and Prevention, “Abortion Surveillance - United States, 2000,” 52 Morbidity and Mortality Weekly Report (SS-12) Table 7 (Nov. 28, 2003).

[33] The Alan Guttmacher Institute, “Induced Abortion,” Facts in Brief 1 (2003).

[34] Centers for Disease Control and Prevention, “Abortion Surveillance - United States, 2001,” 53 Surveillance Summaries Table 13 (Nov. 26, 2004).

[35]“An Abortion Rights Advocate Says He Lied About Procedure,” The New York Times, February 26, 1997, A11.

[36]“Medicine adds to debate on late-term abortions,” American Medical News, March 3, 1997, 54, 56.

[37] Stenberg v. Carhart, 530 U.S. 914, 929-30 (2000) (“The question before us is whether Nebraska’s statute, making criminal the performance of a ‘partial birth abortion,’ violates the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), and Roe v. Wade, 410 U.S. 113 (1973). We conclude that it does...”).

[38]Paul Benjamin Linton, “Planned Parenthood v. Casey: The Flight from Reason in the Supreme Court,” 13 St. Louis University Public Law Review 15, 24-26 (1993).

[39] See supra note 24. See also Linton, supra note 38, at 27 (stating that, at the time Roe was decided, “[n]o State allowed unrestricted abortion throughout pregnancy, as Roe effectively does”).

[40] See supra notes 2-7.

[41] See Wittes, supra note 17, at 48.

[42] See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

[43] American Academy of Pediatrics v. Heckler, 561 F.Supp. 395, 403 (D.D.C. 1983).

[44] In re Eichner, 73 A.D.2d 431, 466 (N.Y. App. Div. 1980).

[45] People v. Kevorkian, 1993 WL 603212 (Mich. Cir. Ct. Dec. 13, 1993).

[46] Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996).

[47] See Stanley K. Henshaw, “Abortion Incidence and Services in the United States, 1995-1996,” 30 Family Planning Perspectives 263, 268 (Nov./Dec. 1998), available at www.guttmacher.org/pubs/journals/3026398.pdf.

[48] See supra note 26, at 6, 12, Table 5. The other kinds of clinics are described as those where less than half of patients are obtaining abortions.

[49] Jack Hitt, “Who Will Do Abortions Here?,” New York Times Magazine, January 18, 1998, 23.

[50] Physicians for Reproductive Health and Choice, 9 Choice Notes 1 (June 2004), available at www.prch.org/publications/ choice_notes/June04_ChoiceNotes.pdf.

[51] Stanley K. Henshaw and Kathryn Kost, “Abortion Patients in 1994-1995: Characteristics and Contraceptive Use,” 28 Family Planning Perspectives 140, 147 (July/Aug.1996).

[52] Survey conducted by host of www.afterabortion.com, a pro-choice, post-abortion support site. Survey available at www.geocities.com/Athens/Parthenon/1362/surveyresults1.html.

[53] Feminist Women’s Health Center, “Abortion is OK - A Call to Action,” at www.fwhc.org/take-action/ok.htm.

[54] See the stories of Serena, Barbara, and Natalie at www.fwhc.org/stories/story1.htm. For more, see www.afterabortion.com and www.hopeafterabortion.com/hope.html?sel=C18L.

Viewing booklets in PDF format requires Free Adobe Acrobat Viewer. Click below for downloading instructions.