From this Perch Column: Abortion, who decides?
Prior to the Supreme Court ruling in Roe v. Wade (1973), abortion was criminalized in all but a few states.
Still, women who sought an abortion often obtained one.
If she couldn't bring herself to end a pregnancy on her own (think coat hangers and knitting needles), or couldn't find a facility nearby willing to perform the illegal procedure, a woman could travel to one of the handful of states that did not criminalize abortion — IF she could afford the travel.
But by the 60's and early 70's, change was in the wind for our society.
People were experiencing a new-found willingness to question the status quo—and authority.
Activism popped up on a variety of issues: Vietnam; civil rights; social conformity. And, women began to realize freedom from traditional roles, imagining equality.
In the midst of that cultural and social shifting, increasing numbers of people began to see the criminalization of abortion as draconian.
A wave of change had begun.
Then 1973 rolled around and the Supreme Court poked its considerable nose into the topic, interrupting that wave.
Seven of the Court's nine justices signed on for the bottom line in Roe v. Wade: Women have a constitutional right (although qualified) to make their own decision when it comes to abortion.
Among other things, the Court reasoned that women have a right to "privacy" under the Due Process Clause of the 14th Amendment.
While privacy isn't mentioned in that Amendment, "liberty" is, and Roe said liberty includes privacy.
And just like that, state laws which had previously criminalized abortion were now unenforceable.
So, states stopped prosecuting violations of those laws. And yet there was not complete acceptance of Roe. Take Wisconsin, for example.
Wisconsin had criminalized abortion back in 1849, its second year of statehood. No exception in cases of rape or incest.
You might think the Roe decision in 1973 caused Wisconsin to repeal that old abortion law.
But you'd be wrong.
The 170-year-old law is still on the books. No prosecutions are brought under it since Roe. It's just sitting there.
Why? Because for over 40 years, the "Madison Squabblers" — not a baseball team, but my name for the elected folks in Madison — have been unwilling to align our state law with the law of the land.
Think it's loaded?
For those who celebrated the Roe decision, it might seem petulant and contrary to the rule of law for Wisconsin to refuse to recognize the Court's decision.
But for those who are devoutly "pro-life," refusing to conform state law to Roe has been like giving the middle finger to what they perceive as the Court's over-reach.
From this perch: A reversal of Roe might not be a bad thing.
While I liked the result of Roe — a woman's decision on her pregnancy is none of my business — the route the Court took to reach that decision was a Constitutional stretch to me.
Plus, it robbed a budding grass-roots movement of its energy and handed that energy over to those who are devoutly "pro-life." Like skilled surfers, they have been riding that wave ever since.
If Roe is reversed, the abortion issue will be returned to the people — maybe where it belongs.
Either that or we amend the Constitution to clarify the issue once and for all.
Don't hold your breath on that one.