[full disclosure: I am not a lawyer, a legislative aide, a doctor, nor am I an historian. I'm just a woman with opinions.]
While Roe is an extremely important Supreme Court decision, it is only a court decision. And it has, in my opinion, created a sort of back-door sexism that has had significant social and economic impacts on the women it purports to "liberate." People seem to talk about it as though it is a piece of civil rights legislation for women, and it most certainly is not. The very existence of the Roe decision might have contributed to the failure of the ERA by encouraging latent sexism in American society and allowing people to rationalize that chicks who wanted careers could certainly have them if they chose not to have children. That is, sexism has two components: discrimination against women generally, and discrimination against mothers in particular.
Roe is a court decision that states that the plaintiff had the legal right to an abortion under any circumstances of her choosing up to the point of fetal viability. The decision cites as a constitutional authority the due process clause of the 14th amendment & the amendment itself: these guarantee that U.S. citizens are entitled to full protection of all, not some of their legal rights and are entitled to equal protection under the laws of the United States. The decision relates this to what the majority opinion held to be a constitutional right to privacy.
But this decision does not alter the language of the 14th amendment, the intent of which was to specifically enfranchise African-Americans, that is, former slaves. So women's rights are not specified anywhere in the Constitution. Yet Roe alludes to them or creates a vague context for them. And the right to privacy is not defined, I don't think, carefully enough with regard to the specific circumstances of the child-bearing female body. Advances in medicine make fetal viability very different today than in 1973, which raises appropriate moral and ethical concerns in the 21st century. In addition, testing for disability in utero has also become more sophisticated, and the court decision does not answer those concerns either.
In the end, I wouldn't argue with a woman who has chosen to have an abortion because, like most Americans, I think that only that individual can really grasp the combination of circumstances that led to that decision. However, I also find it difficult to discuss how we can define the rights of children (let alone fathers) given the vagaries of the Roe decision: a human body is fully formed at 24 weeks, and, given modern medicine (which creates its own arbitrary cruelties relative to children), a fetus is viable prior even to 24 weeks. I, personally, have a moral difficulty with the concept that a child is only a child when it emerges from the uterus--the concept of "fetus" as an entity without rights at all at any stage of gestation makes me uneasy. Yes, it's my body and the thought of yielding too much on that score scares me, but I am sharing it during gestation with an individual that at some point develops perception, observation, and thoughts. I don't think the brain just starts to function like a child's brain at the magic moment of birth itself.
The issue of fetal viability establishes another spectrum of problems that Roe does not address at all. One social problem relative to premature birth or the birth of a child with known disabilities is economic. The medical care for these children is expensive, and the caregiving responsibilities are intense. Children with disabilities have to face the trauma of their disabilities every day, as do their parents and siblings, so the emotional impact of disability is also profound, as are the social impacts, which include, gradually, a certain amount of social shunning by typical families and school systems.
A few years ago, after the NY Times ran several extensive articles about the social and economic problems relative to raising a child with disabilities and the moral and ethical issues related to selective abortion (side bar: there are few children with Down Syndrome in Montgomery County, Maryland), a letter to the editor was published that had been written by a friend of mine from college with whom I had lost touch. After learning that the child she was carrying would be born with significant disabilities, she and her husband chose to terminate. She talked briefly about the emotional difficulty of that decision.
I respected that. I thought about trying to contact her, but, ultimately did not. Would I abort a child I knew would be born with disabilities? I don't know. I couldn't say until the moment was upon me. Would I have aborted Robert had I been able to tell, in utero, that he would develop these severe disabilities? That's a cruel question. But Roe did not offer each of us equality under the 14th amendment: Roe only enabled Ellen to "choose" her liberty. Roe doesn't allow me, or other mothers with disabled children whose disabilities became apparent after birth or due to premature birth, or mothers with moral qualms about abortion who had typical children at less than optimal moments in their lives--Roe doesn't offer us equal protection or equal opportunity under the laws of the United States--it only allows certain, self-selecting women equality.
That's the crux of pregnancy and children and disability and abortion politics: there are so many unknowns, so many moral facets, so much potential heartache, so many potential economic and social impacts. Roe solves none of this. Roe exacerbates all of this. Because Roe creates inequities among women who face the decision to have or not have children under any circumstance you can think of. Because all Roe does is allow you the choice to not have a child, and under legal and legislative circumstances that create a giant, sucking vacuum of economic and social inequity for women who do have children. In the absence of social policy that articulates fair and equitable family policies in the workforce, fails to provide its citizens with full access to healthcare, and in the context of a workplace that is culturally organized around a 19th century concept of the family, Roe is a complete and utter failure as a civil rights measure for women.
Ironically, the material and social conditions that Roe has created deny to mothers the equal protections under the law that the 14th amendment guarantees (hypothetically) to all. Because Roe stands in the minds of many people as the only civil right that should be allowed women: choose not to have children and we can virtually guarantee you economic equality relative to people of your socioeconomic status and educational background--choose to have a child and you kiss all that good-bye. Good-bye personal autonomy. Good-bye economic self-determination. Worse yet, Roe gives many people the excuse to discriminate against mothers in the workforce and society: you girls were offered a choice and you didn't choose the option that would allow you to pursue personal happiness. You chose your fetters.
I don't want to have with my own daughter a version of the same conversation my mother had with me: that it would be unwise for me to pursue a medical degree because I wouldn't be able to raise a family and be a doctor--she urged me to think about being a nurse. Yes, I know that women my age with families are physicians and are managing it, and maybe I shouldn't have listened to my mother (I had other interests I wanted to pursue, anyway), but ask them what it's cost them. Ask them if it's been as easy for them as their male peers. Ask the same thing of women with families in academia. I don't want to have to warn my daughter that, while men can think of pursuing a career and having a family while they're still young, women have to make their own decisions very carefully, and they'll be blamed for society's continued engrained sexism no matter what they do. I.e., if you really want to have a family and you really want a career, you have to make different choices and make different sacrifices than men do.
But as long as major feminist organizations keep insisting that Roe is the foundation of all women's civil rights and equality and it cannot be overturned, that's the conversation I'm going to have to have with my daughter. The irony is that you can be a single mother today and hold a job and not have most people look down their nose at you--you just can't guarantee that your family will ever have financial security because the laws and culture of this country refuse to allow equal opportunity and equal protection for mothers. Even married women can't guarantee that for themselves in the case of divorce or the multitude of other decisions couples make while trying to solve the problems of raising a family and which spouse should make sacrifices. Roe is making a joke of the 14th amendment.