Critical Times: On the 33rd Anniversary of Roe v. Wade

January 20, 2006

Louise Melling, Director of the ACLU Reproductive Freedom Project

FROM THE 2006 MEMBERSHIP CONFERENCE Project Director Louise Melling talks about the South Dakota abortion ban Watch ACLU President Nadine Strossen and Supreme Court Justice Antonin Scalia debate abortion

FEATURES New Year's Resolution 2006: Help Save Reproductive Freedom Federal Legislative Update ACLU Announces Opposition to Alito Nomination Ayotte v. Planned Parenthood Timeline of Important Reproductive Rights Cases

NEWS Alito Confirmation Would Erode Balance of Powers, Harm Civil Rights (1/19/2006) High Court Ruling Respects Protections to Women's Health (1/18/2006)

By Louise Melling
Director, ACLU Reproductive Freedom Project

These are critical times for reproductive freedom. In the weeks leading up to this year's 33rd anniversary of Roe v. Wade, the U.S. Supreme Court decision legalizing abortion, the nation witnessed Supreme Court nominee Judge Samuel A. Alito Jr. sidestepping many important questions about his view of the Constitution and reproductive rights. In three days of questioning on these and other civil liberties issues during his confirmation hearings, Alito left us unsettled as to the fate of settled law.

Should he be confirmed, Judge Alito will replace retiring Justice Sandra Day O'Connor, a moderate voice and a critical swing vote on many civil liberties issues, including a woman's right to a safe and legal abortion. In several important cases, O'Connor has provided the crucial fifth vote upholding the right to abortion and recognizing the importance of protecting women's health. In 1992, at a moment when Roe itself was in jeopardy, she broke with then-Chief Justice William Rehnquist and other abortion opponents in Planned Parenthood v. Casey, affirming a woman's right to abortion. Notably the majority opinion in Casey, which O'Connor helped craft, strikes down a requirement that married women notify their husbands before obtaining an abortion, the very same requirement that Judge Alito had voted to uphold as a member of the lower court reviewing the law.

Fast forward to 2006. As we await a decision on Alito's nomination, we also await word from the Supreme Court as to whether it will consider the constitutionality of the Federal Abortion Ban, a law that bans abortions as early as 13 weeks in pregnancy, abortions that doctors say are safe and among the best to protect women's health. In 2000, when the Court last considered a similar state ban in Stenberg v. Carhart, it struck down the law with a narrow 5-4 ruling; Justice O'Connor voted with the majority. If Alito replaces O'Connor, he could very well provide the swing vote that undoes three decades of legal precedent protecting women's health. In this and other cases, Alito could cast votes that would accomplish the aim he so clearly states in his now-famous 1985 memo: "What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?"

On this 33rd anniversary of Roe v. Wade, we ask you to join us and take action to protect reproductive freedom and other important civil liberties.