The Incorrect Assumptions of the Roe v. Wade Decision

Dakota Voice is reviewing the Report of the South Dakota Task Force to Study Abortion, in light of the upcoming November vote on Initiated Measure 11 to end most abortions in South Dakota.

Pertinent sections of the report will be reviewed each week for the next several weeks which may shed light on Initiated Measure 11.

The following is from Section II.A.1 on the findings of the report:

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Specifically, six different assumptions of fact were made that were critical to the Roe decision that the states lacked an interest sufficient to prohibit or meaningfully regulate the abortion procedure. We address them one at a time:

First, the Supreme Court assumed that it could not determine the answer to the question of when the life of a human being begins:

"When those trained in the respective disciplines of medicine, philosophy,
and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." (Roe v. Wade, 410 U.S. at 159) (emphasis added).

Thus, the Supreme Court did not affirm, but neither did it deny, that the "unborn child" (what embryologists call the "embryo" or "fetus") is a living human being. To understand this point, and to understand the testimony of the witnesses from Planned Parenthood who testified before the Task Force, it is important to distinguish three separate questions.

The first question is a scientific one: is the human being, from the moment of conception, a whole separate living member of the species Homo sapiens in the biological sense? The second question is a moral question: assuming that the answer to the first question is yes, should the life of that human being be accorded the same value, worth, and dignity at all stages of development, i.e., as a blastocyst, embryo, fetus, child, adolescent, and adult. And the third question is a legal one: does the Constitution of the United States protect the rights of human beings at all stages of development before birth?

In Roe v. Wade, the Supreme Court expressly declined to answer the scientific or moral questions. With regard to the scientific question, the Supreme Court said that at this "point in the development of man's knowledge" it could not say whether a human embryo or fetus is or is not a human being. The Court ruled that the state could not legally prohibit abortion. Whether or not this decision was based upon sound legal analysis has never stopped being the subject of great debate.

Second, the Roe Court assumed that there would be a normal healthy physician-patient relationship in which the doctor would impart pertinent information, and that decisions would be made through consultation between the physician and patient. "All these are factors the woman and her responsible physician necessarily will consider in consultation." (Roe v. Wade, 410 U.S. at 153) (emphasis added).

Third, the Court assumed that motherhood and child-rearing forced "upon the woman a distressful life and future" and that child-rearing could cause "mental and physical" health problems and "distress" of such a nature that abortion had to be available, and that the absence of legalized abortion was a detriment imposed upon the women by the state. (Roe v. Wade, 410 U.S. at 153.)

Nowhere in the Roe decision did the Court mention the distress due to the pregnant mother losing her child to abortion. In fact, there is no mention of the great benefit and joys that the mother-child relationship brings to the mother, or the devastating loss and distress incurred by the mother who loses her child to abortion. The absence of mention of the nature of this loss and this profound distress is, in all likelihood, attributable to the fact that in 1973 there had not yet been adequate experience with the after-effects of abortion.

Likewise, the Court never mentioned the fact that the pregnant mother possesses a constitutionally protected relationship with her unborn child or the fact that this relationship, protected as a fundamental right, is terminated by the abortion procedure. House Bill 1166 expressly states that this is not only the case, but it required the abortion providers to disclose this information in writing to a woman considering an abortion.

Fourth, the Court's opinion assumed that a decision to have an abortion would be truly voluntary and informed.

Fifth, the Court assumed that the abortion procedure was safe and that the risk to the women's health and life was far greater in carrying the child to full term than in having an abortion. See, e.g. Roe v. Wade, at 149 ("consequently, any interest of the state in protecting the woman from an inherently hazardous procedure... has largely disappeared").

Sixth, the Supreme Court assumed that the woman faced significant difficulties as a result of a cultural stigma of unwed motherhood.

As a result of the advances in modern science and medicine, and particularly because of information derived from the practice of abortion since its legalization, the Task Force finds that each of these assumptions has been entirely or largely disproved. The new understanding about these facts, and the new information not previously known concerning them, are important in understanding how abortion affects the lives, rights, interests, and health of women.


The 2005 South Dakota Task Force to Study Abortion was created when the South Dakota legislature passed HB 1233 with a bipartisan majority in both houses. The purpose of the task force was "to study abortion and to provide for its composition, scope, and administration." The report was completed in December 2005 after several months of meetings.