At the time of Roe v. Wade, was there a public discussion about the fact that right to abortion was being granted based on the Constitution?

by RoastedRhino

In other countries that I know better, the right to abortion was granted after a political discussion that led to either a law from the parliament, a popular vote/referendum, the ratification and interpretation of contemporary international agreements like the Universal Declaration of Human Rights, or based on post-WWII constitutions that included these elements already.

When Roe-v-Wade happened, was there any concern about basing such a right on the careful interpretation of a 200 year old constitution that was definitely seminal as a democratic constitution but in many senses is not a modern one? Was there anyone proposing a modern discussion on the matter, based on modern conception of women, of human rights, but also modern medicine for prenatal diagnosis, prevention, contraception? And ideally resulting in an amendment or a federal law?

To me (sorry for trivializing the matter) it looks like if we go searching for indications in the constitution on whether there should be a speed limit on the highways. Why this approach as if the constitution was a sort of sacred text that the longer you stare at it the more answers it gives you? (That’s my feeling, not trying to be disrespectful).

EdHistory101

I'm confident there are nuances to what I'm about to say and I'll defer to historians of the law who can point out that nuance, but generally speaking, for Americans, all our rights are based on, and come from, the Constitution. Every local or state law, every court case, every contract, etc. has to be, in theory, run up the Constitutional flagpole. And to a certain extent, these laws, cases, contracts, etc. are viewed through the lens of whether or not they are a violation of our rights. To that end, the question is less if we have the constitutional right to speed and more if laws that prohibit speeding are unconstitutional (and there are people who are willing to argue they are.)

I chuckled a bit when I read your use of the word "seminal" as, while it's a word that is used to mean a foundational or important text or idea, it means related to semen. It's a word choice that gets to the heart of the matter: even before the moment the document was finalized, women and girls have been saying, "what about us?" In effect, anyone who is not a man does not have the same Constitutional protections as men. That ws true at the founding of this country just as it was true when Roe v. Wade was argued.

It's generally recognized that the first acknowledgement that the Constitution was not intended to apply to white girls and women (much less girls and women of color) was an exchange between the Adams - John, the second President and key figure in the founding of the country - and Abigail, his wife. In a letter dated March 31, 1776, she wrote:

... by the way in the new Code of Laws which I suppose it will be necessary for you to make I desire you would Remember the Ladies, and be more generous and favourable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could.

John's response was basically (and I'm paraphrasing), oh, you, sweet summer child and then he burst into a verse of "This is Man's Man's Man's World." (Why not let white women vote? I explain why here.) What his response does, though, is make it plain that the rights enshrined in the Constitution did not necessarily apply to people who were not white men. And while the state often protected white women's rights in some aspects of the law, it was very, very limited. (In this question, a couple of us get into the nature of coverture and what it meant for American women.)

Over the course of the 19th century, women speechified, wrote, advocated, and pushed in public and private for protections of the Constitution to apply to them. At times, white and Black women were collaborators in the fight to end slavery and suffrage for women. At others, white women were more than willing to trade off rights for Black men and women in exchange for the possibility of more rights for them. As public education expanded and the role of teacher was feminized, more white women - and some Black women - gained access to more disposable income, which gave them access to some power, but even that was limited by social and political means. In 1837, years before the American Civil War, suffragist and abolitionist, Sarah Grimké wrote:

But I ask no favors for my sex. I surrender not our claim to equality. All I ask of our brethren is, that they will take their feet from off our necks, and permit us to stand upright on that ground which God designed us to occupy.

The idea Sarah was pushing for - this idea that the men making the laws and rules shaping American life needed to recognize that their actions were limiting women's ability to live full and free lives - may have taken form but such advocacy was sidelined the war. After the war, there was intense negotiation regarding new Constitutional amendments and there were moments like women might get full voting rights. However, they were again reminded that they were not full citizens, protect by the Constitution, in the language of the 15th Amendment:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

While the 13th and 14th Amendments applied to Black girls and women as well as men but when it came to the 15th Amendment, even though their sons and fathers could vote, Black women, like white women and other women of color, could not. It would take decades, but eventually suffragists were able to convince enough men to view women as full citizens and pass the 19th Amendment. However, the Amendment did not sufficiently secure full rights for all women - it would take the passage of the Civil Rights Act among other laws and cases to do that.

Immediately after the passage of the 19th Amendment, many white suffragists walked away from advocacy, considering their work done. Other advocates, though, including Alice Paul recognizing there was still work to be done. In 1943, she proposed the following Amendment be added to the Constitution:

Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

At the time she wrote the bill, women could open bank accounts in only some states. In some states, owning property required a husband's or father's consent. In others, her movements and actions were further limited by laws that only applied to women. It was the thinking of legal experts of the time that if the Amendment proposed by Paul were passed, such laws would then become unconstitutional.

This Amendment - later known as the Equal Rights Amendment - was passed by the U.S. Senate and then the House of Representatives, and on March 22, 1972 - a year before Roe - the proposed 27th Amendment to the Constitution was sent to the states for ratification. It's impossible to say what could have happened instead, but it is safe to say that if the Amendment had been quickly ratified, the Supreme Court would not have to look to the 9th and 14th Amendment, they could have pointed at the 27th and ruled anti-abortion laws unconstitutional on their face.

The deadline for ratification was June 30, 1982 - and it fell three states short of the necessary 38 states needed for full ratification. It has since been ratified, but not, as yet, adopted as Congress lacks the consensus needed to modify the deadline.