The medical assumption at the Foundation of Roe v. Wade & its implications for women's health.

Too little attention has been paid over the past forty years to the complete lack of a factual record in Roe v. Wade and Doe v. Bolton, and to the Court's fundamental assumption that drove the outcome. The decision and opinions were driven by the medical claim that "abortion was safer than childbirth," which was raised for the first time in the briefs in the Supreme Court without any lower court record. This medical premise directly and profoundly shaped virtually every major aspect of Roe and Doe, including the creation of the trimester system and the prohibition of health and safety regulations in the first trimester. Because of this medical assumption, the Justices extended the right to abortion throughout pregnancy. It was key to the Court's historical rationale for a "right" to abortion. Because of this notion, the Justices gave abortion providers complete discretion to manage any issues of health and safety, and they prohibited public health officials from regulating abortion in the first trimester. This medical assumption was the most consequential factual assumption of the abortion decisions of 1973 and it has been assumed to be true in subsequent abortion decisions by the Court. The notion that "abortion is safer than childbirth" has become even less tenable for at least five reasons: (1) the dysfunctional abortion data reporting system in the United States that relies completely on voluntary reporting; (2) the incomparability of the published abortion mortality rate and the published maternal (childbirth) mortality rate; (3) medical data on the increasing rate of maternal mortality in the second trimester; (4) the growing body of international medical studies finding long-term risks to women from abortion; and (5) maternal mortality data from countries with superior abortion recordkeeping collection and reporting systems, which find a higher rate of abortion mortality than childbirth mortality. These concerns and the growth in international medical data over the past two decades should counsel the Supreme Court to give greater deference to the states in their attempt to protect maternal health.