here - J. Reuben Clark Law School

Roe at 40: A Short History of Roe v. Wade, Abortion in the USA, and of the LDS Church Response to Roe Lynn D. Wardle The Bruce C. Hafen Professor of Law Brigham Young University Mini-Symposium on Roe at 40 J. Reuben Clark Law School Brigham Young University January 22, 2013

I. II.

II.

Introduction: A Short History of Abortion in the USA A. Common Law & American codifications until 1966 B. Roe and the Revolution in Abortion Law C. Roe by the numbers: How Many Abortions? D. The Effects of Roe Upon the Law The Doctrines and Policies of the Church of Jesus Christ of Latter-Day Saints Concerning Elective Abortion A. Organization of the LDS Church, its Leadership, and the Importance of Teaching B. Official Position of the LDS Church re: abortion C. Nineteenth Century LDS Condemnation and Rejection of Elective Abortion D. LDS Church Response to the Movement to Legalize and Social Acceptance of Elective Abortion in Since 1960 E. Linking the Doctrine to Foundational Theological, World-view Principles F. LDS Church Positions on the Legalization of Elective Abortion G. Enforcement of the LDS Policy Rejecting Elective Abortion H. Mormons’ Support for and Adherence to The LDS Church Position Opposing Elective Abortion

III. Conclusion: What Lies Ahead for Roe?

William Blackstone, Commentaries on the

Common Law of England (1756)

• Abortion was a crime at common law since 12th century • Blackstone, Rights of Persons: “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offense in quite so atrocious a light but merely as a heinous misdemeanor.”

Declaration of Independence (1776) • “all Men are created equal, that they are endowed by the Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness – That to secure these Rights Governments are instituted among men . . . .” • Codification of Abortion common law in 19th century and Modification to reflect new scientific knowledge of procreation (alive at conception so fetal life protected from conception)

Ongoing Abortion Law Reforms Pre-Roe Hard cases life and serious health risks for mother rape or incest severe fetal defect Reform ALI, Model Penal Code (3 exceptions) 4 states + 14 states reform laws 1967-72

Roe v. Wade, 410 US 113 (Jan. 22, 1973) • Unwritten (SDP) constitutional right of privacy includes abortion decision • No significant restrictions before birth • No restrictions at all in 1st Trimester • Only minor regulation of medical safety in 2d Tri • After ‘viability’ (28 wks) state may restrict – - unless nec to protect life or health of mother – defined very broadly to include financial health, stress, etc. DOE v. Bolton: Georgia’s ALI model Penal Code abortion provisions unconstitutional Effect: All abortion laws in all 50 states invalidated

Expansion: Major Supreme Court Abortion Cases (2013) (Excluding Most Summary Dispositions and Procedural or Incidental Cases) • • • • • • • • • • • • • • • •

1. United States v. Vuitch, 402 U.S. 62 (1971) 2. Roe v. Wade, 410 U.S. 113 (1973) 3. Doe v. Bolton, 410 U.S. 179 (1973) 4. Bigelow v. Virginia, 421 U.S. 809 (1975) 5. Connecticut v. Menillo, 423 U.S. 9 (1975) 6. Planned Parenthood v. Danforth, 428 U.S. 52 (1976) 7. Bellotti v. Baird (I), 428 U.S. 132 (1976) 8. Maher v. Roe, 432 U.S. 464 (1977) 9. Beal v. Doe, 432 U.S. 438 (1977) 10. Poelker v. Doe, 432 U.S. 519 (1977) 11. Colautti v. Franklin, 439 U.S. 379 (1979) 12. Bellotti v. Baird (II), 443 U.S. 622 (1979) 13. Harris v. McRae, 448 U.S. 297 (1980) 14. Williams v. Zbaraz, 448 U.S. 358 (1980) 15. H. L. v. Matheson, 450 U.S. 398 (1981) 16. City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983)

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17. Planned Parenthood Association of Kansas, Missouri, Inc. v. Ashcroft, 462 U.S. 476 (1983) 18. Simopoulos v. Virginia, 462 U.S. 506 (1983) 19. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) 20. Diamond v. Charles, 476 U.S. 54 (1986) 21.* Frisby v. Schultz, 487 U.S. 474 (1988) 22.* Webster v. Reproductive Health Center, Inc., 492 U.S. 490 (1989) 23. Hodgson v. Minnesota, 497 U.S. 417 (1990) 24. Ohio v. Akron Center for Reproductive Health, Inc., 497 U.S. 502 (1990) 25. Rust v. Sullivan, 500 U.S. 173 (1991) 26.* Planned Parenthood v. Casey, 505 U.S. 833 (1992) 27.* Bray v. Alexandria Women's Health Clinic, 508 U.S. 263 (1993) 28.* National Organization for Women, Inc. v. Scheidler, 510 U.S. 249 (1994) 29.* Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994) 30. *Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) 31. Lambert v. Wicklund, 117 S.Ct. 1169 (1997) 32. Mazurek v. Armstrong, 117 S.Ct. 1865 (1997) 33. *Hill v. Colorado,530 U.S. 703(2000) 34. Stenberg v. Carhart, 530 U.S. 914 (2000) 35. Ayotte v. Planned Parenthood, 126 S.Ct. 961 (2006) 36. *Scheidler v. National Organization for Women, Inc., 126 S.Ct. 1264 (2006) 37. Gonzales v. Carhart, 550 U.S. 124, 127 S.Ct. 1610 (2007) * = pro-life free speech or expression case

• Other Notable Supreme Court Cases Involving Abortion • • • •

1) 2) 3) 4)

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5) *Lawson v. Murray, 515 U.S. 1110 (1995) 6) Leavitt v. Jane L., 116 S.Ct. 2068 (1996) 7) Janklow v. Planned Parenthood, 517 U.S. 1174 (1996) 8) *Lawson v. Murray, 525 U.S. 955(1998) 9) * Federal Election Commission v. Wisconsin Right to Life, 551 U.S. U.S. 449 (2007) 10) *Lefemine v. Wideman, __ U.S. __, 2012 WL 5381602 (Nov. 12, 2012)

Arnold v. Sendak, 429 U.S. 968 (1976) *Guste v. Jackson, 429 U.S. 399 (1977) Hartigan v. Zbaraz, 108 S.Ct. 479 (1987) Fargo Women s Clinit v. Schafer, 507 U.S. 1013 (1993)

* = pro-life free speech or expression case

The Five Categorical Wrongs of Roe 1. Roe v. Wade has severely distorted American law 2. Roe has severely distorted Americans’ practice of abortion 3. Roe has caused a serious erosion of the ethic of respect for the sanctity of inconvenient life. 4. Roe has caused a severe erosion of the dignity of Personhood. 5. Roe has seriously eroded rights of conscience

I. Fifteen Wrongs (Four Distortions) of Roe v. Wade upon Law in the U.S. I. Structural Distortions 1) Abortion Regulation nationalized Violation of federalism; federal govt (crts) set policy 2) Abortion Regulation Constitutionalized (SDP) 3) Judiciary created new constitutional right (SDP) (White, J. judicial ‘fiat’) Violated Separation of Powers, Check & Balances 4) Abortion Regulation judicialized - Courts (mostly fed) creat/monitor/expand new constitutional right 5) Altered / circumvented amendment process of Art. V

II. Substantive Doctrinal Distortions 6) Substantive Private Right to Kill Unborn Child read into Constitution 7) US has most radical abortion law in the world (MA Glendon) 8) No restriction until 3rd trimester – viability (abortionists’ choice) 2d trimester only minor regulation - of method 9) Denial of Pro-Life First Amendment Speech & conscience rights 10) No laws requiring notice to husband permitted 11) Circumvention of parents’ rights accepted (jud bypass) 12) Nearly all abortion restricts struck down for 40 years (except $ funding, p’al notification, informed consent) III. Process Distortions 13) Legislature and political process largely excluded, shut down. 14) Judicial process has politicized abortion law even more and more extreme result than when political branches control (contrast US v. Europe) – major election issue every federal election. 15) Politicized judiciary – spectacle of contention re: SCOTUS nominees

ABORTIONS IN THE UNITED STATES, In Even and “5” years, 1972-2008 Year Number Rate Ratio %Repeat %