Roe v. Wade

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Roe v. Wade, (ussc|410|113|1973)[1] is a landmark United States Supreme Court decision establishing that most laws against abortion violate a constitutional right to privacy under the liberty clause of the Fourteenth Amendment, thus overturning all state and federal laws outlawing or restricting abortion that were inconsistent with the decision. It is one of the most controversial cases in U.S. Supreme Court history.

The decision in Roe v. Wade prompted a still-continuing national debate over whether terminating pregnancies should be legal (or more precisely, whether a state can choose to deem the act illegal), the role of the Supreme Court in constitutional adjudication, and the role of religious views in the political sphere. Roe v. Wade became one of the most politically significant Supreme Court decisions in history, reshaping national politics, dividing the nation into "pro-choice" and "pro-life" camps, and inspiring grassroots activism on both sides.

Opposition to "Roe" comes primarily from those who viewed the Court's decision as illegitimate for straying too far from the text and history of the Constitution, and those possessing beliefs about the personhood of fetal human life.

Support for "Roe" comes from those who view the decision as necessary to preserve women's equality and personal freedom, and those who believe in the primacy of individual over collective rights, although the opposition to Roe often reference the primacy of the individual when referring to the fetus.

Contents

History of case

The case originated in Texas in March 1970 at the behest of young attorneys Linda Coffee and Sarah Weddington. Coffee and Weddington filed suit on behalf of Norma L. McCorvey ("Jane Roe") who claimed her pregnancy was the result of rape. McCorvey has since recanted this claim, although at one point she gave a detailed account of her rape. Her (at the time) alleged rape was not mentioned or used in the arguments for Roe v. Wade, because the attorneys had determined McCorvey's claims to be questionable.

A three-judge district court ruled for "Jane Roe," but refused to grant against the enforcement of the laws.

Many advocates of liberalizing abortion laws saw promise in this line of cases, as abortion was widely regulated by state laws at that time.

Both "Jane Roe" and defendant Wade appealed to the Supreme Court and the case was argued there by Weddington and Texas assistant attorney general, Jay Floyd, on December 13, 1971. Chief Justice Burger proposed that the case be put over for reargument, and the justices, unimpressed with the first oral argument in the case, underwhelmed by Blackmun's opinion, and wishing to include newly appointed Justices William Rehnquist and Lewis F. Powell, Jr., voted to reargue the case on October 11, 1972, at the behest of the Chief Justice. At the reargument, Weddington again represented Roe, while Wade was represented by Texas assistant attorney general Robert C. Flowers.

Douglas threatened to write a dissent from the reargument order, but was coaxed out of the action by his colleagues; his dissent was merely mentioned in the order without further statement or opinion.

The Supreme Court's decision

The court issued its decision on January 22, 1973, with a 7 to 2 majority voting to strike down Texas' abortion laws.

Abortion

The members of the court that decided Roe v. Wade. Justice Blackmun delivered the opinion of the Court.

Roe v. Wade established that abortion, under the United States Constitution, is a fundamental right, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny. Though abortion technically remains to this day a fundamental right, subsequent cases, notably Planned Parenthood of Southeastern Pennsylvania v. Casey and Stenberg v. Carhart, have modified the legal standard significantly.

The opinion of the Court, written by Justice Harry Blackmun, notes that "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage" with criminalization of abortion mostly occurring from law enacted in the latter half of the nineteenth century. Section VI of the opinion was devoted to an analysis of historical attitudes, including those of: the Persian Empire, Ancient Greece, the Roman Empire, the Hippocratic oath, common law, English statutory law, American law, the American Medical Association, the American Public Health Association, and the American Bar Association.

Without finding a historical basis for the laws, the Court identified three justifications in Section VII of the opinion to explain the criminalization of abortion: (1) women who can receive an abortion are more likely to engage in "illicit sexual conduct," (2) the medical procedure was extremely risky prior to the development of antibiotics and, even with modern medical techniques, is still risky in late stages of pregnancy, and (3) the state has an interest in protecting prenatal life. As to the first, "no court or commentator has taken the argument seriously" and the statute failed to "distinguish between married and unwed mothers." However, according to the Court, the second and third constituted valid state interests. In Section X, the Court reiterated, "[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman…and that it has still another important and legitimate interest in protecting the potentiality of human life."

Valid state interests, however, must be weighed against the constitutionally protected rights of individuals in order to determine whether a law is a constitutional exercise of power. Even though the "Constitution does not explicitly mention any right of privacy" the court found support for a constitutional right of privacy in the First Amendment, Fourth Amendment, Fifth Amendment, Ninth Amendment, Fourteenth Amendment, and the penumbra of the Bill of Rights. The court found "this right of privacy" to be "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

However, the Court determined that "arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive." The Court declared, "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."

When weighing the competing interests the Court also noted that if the fetus was defined as a person for purposes of the Fourteenth Amendment then the fetus would have a specific right to life under that Amendment. However, given the relatively recent nature of abortion criminalization, the Court determined that the original intent of the Constitution up to the enactment of the Fourteenth Amendment in 1868 did not include the unborn. The Court's determination of whether a fetus can enjoy Constitutional protection is separate from the notion of when life begins. To that, the Court said, "We need not resolve the difficult question of when life 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."

Relying on the current state of medical knowledge, the decision established a system of trimesters that attempted to balance the state's legitimate interests with the individual's constitutional rights. The Court ruled that the state cannot restrict a woman's right to an abortion during the first trimester, the state can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health," and in the third trimester, demarcating the viability of the fetus, a state can choose to restrict or even to proscribe abortion as it sees fit.

Justiciability

An aspect of the decision that attracted comparatively little attention was the Court's disposition of the issues of standing and mootness. The Supreme Court does not issue advisory opinions (those stating what the law would be in some hypothetical circumstance). Instead, there must be an actual "case or controversy," which requires a plaintiff who is aggrieved and seeks relief. In the "Roe" case, "Jane Roe," who began the litigation in March 1970, had already given birth by the time the case was argued before the Supreme Court in December 1971. By the traditional rules, therefore, there was an argument that Roe's appeal was moot because she would not be affected by the ruling, and also that she lacked standing to assert the rights of pregnant women (other than herself) seeking an abortion. The Court concluded, however, that the case came within an established exception to the rule, one that allowed consideration of an issue that was "capable of repetition, yet evading review." Justice Blackmun's opinion noted that human pregnancy would normally conclude more quickly than an appellate process. "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied." Such a ruling was critical to the Supreme Court's right to review the case, since the Supreme Court dismissed the physician James Hubert Hallford's intervention and affirmed the dismissal of John and Mary Doe.

Also, the Supreme Court was originally established by the Constitution for the purpose of resolving conflicts between states, not between individuals and states. The fourteenth amendment, passed with the justification of ensuring the rights of former slaves, became the doorway through which federal laws on social issues and corporations could be passed, thus eroding state sovereignty. Roe v. Wade is a good example of how the accumulation of law over time can be used to create a result opposite the intent of the founders.

Dissenting opinions

Justice Rehnquist wrote one of the dissenting opinions.

Associate Justices Byron R. White and William Rehnquist wrote blistering dissenting opinions in this case.

"I find nothing in the language or history of the Constitution to support the Court's judgment," wrote Justice White. "The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

"The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Regardless of whether I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs."

Justice Rehnquist elaborated on this dissent, writing: "The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy . . . the Court uses her complaint against the Texas statute as a fulcrum for deciding that States may [p172] impose virtually no restrictions on medical abortions performed during the first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the longstanding admonition that it should never "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied . . . the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

"To reach its result the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, §§ 14, 16. By the time of the adoption of the Fourteenth [p175] Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.(1) While many States have amended or updated [p176] their laws, 21 of the laws on the books in 1868 remain in effect today.(2) Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 [p177] and "has remained substantially unchanged to the present time." Ante, at 119.

"There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."

Controversy over Roe

At first most of the protest over the Roe decision came from Catholic sources, who had opposed abortion and contraception on religious grounds for over a century. They were later joined by many Protestants, many of whom had previously been apolitical. The case was one of a number of causes of the modern Evangelical movement. Eventually there were letter-writing campaigns to the Supreme Court. The critique of Roe broke down along three separate lines.

1. The "Pro-life" supporters argued that life begins upon conception, and thus the unborn should be entitled to legal protection.

2. Many conservatives and other supporters of federalism objected to the decision as lacking a valid Constitutional foundation, maintaining that the Constitution is silent on the issue and that proper solutions to the question would best be found via state legislatures and the democratic process rather than through an all-encompassing ruling from the Supreme Court.

3. Some lawyers felt justification could be found in the Constitution, but not in the articles referenced in the decision. They sympathized with the outcome, but still believed that the case was wrongly decided.

Pro-life protesters frequently picket abortion clinics, distribute literature and other forms of persuasion to women considering abortion, and have promoted adoption efforts to steer women away from abortion. More extreme variants of the movement have also developed; abortion doctors have been the targets of harassment and even murder by individuals who claim that by taking the life of an abortion doctor they are actually saving the lives of many human fetuses. However, activists who advocate or practice violence against abortion providers or recipients are consistently denounced by virtually all prominent pro-life groups. Some abortion opponents have claimed that there exists a link between abortion and breast cancer, and Texas has enacted a law requiring literature advancing this theory be distributed to women considering abortion. However, the National Cancer Institute (a division of the U.S. National Institutes of Health) advises that the available medical research does not support this conclusion at this time. [2] Every year on the anniversary of the decision, protesters continue to demonstrate outside the Supreme Court Building in Washington, D.C.

In response to Roe v. Wade, several states enacted laws limiting abortion, including laws requiring parental consent for minors to obtain abortions, parental notification laws, spousal consent laws, spousal notification laws, laws requiring abortions to be performed in hospitals but not clinics, laws barring state funding for abortions, laws banning most very late term abortions utilizing intact dilation and extraction procedures (colloquially referred to as partial-birth abortions), laws requiring waiting periods before abortion, laws mandating that women read certain types of literature before choosing an abortion, and many more. The Congress in the 1970s passed the Hyde Amendment, barring federal funding for abortion. Abortions are currently prohibited in overseas military hospitals, and the United States is barred from aiding international family planning organizations that might advise abortions. The Supreme Court struck down several state restrictions on abortions in a long series of cases stretching from the mid-1970s to the late 1980s, but consistently upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).

Some academics also criticized the decision. In his 1973 article in the Yale Law Journal, The Wages of Crying Wolf,[1] Professor John Hart Ely criticized "Roe" as a decision which "is not constitutional law and gives almost no sense of an obligation to try to be." Supreme Court Justice Ruth Bader Ginsburg, and other liberals such as Massachusetts congressman John F. Tierney and editorial writer Michael Kinsley, have criticized the court's ruling in Roe v. Wade as terminating a nascent democratic movement to liberalize abortion laws which they contend might have built a more durable consensus in support of abortion rights.

Some academics supported the decision, including Judith Jarvis Thomson, who before the decision had offered an influential defense of abortion in "A Defense of Abortion,"printed in Philosophy and Public Affairs, vol. 1, no. 1 (1971), pp. 47-66.

Several groups have also emerged dedicated to Roe's defense. Many Americans vigorously support abortion rights as necessary to women's equality and personal liberty. Most prominent is the National Abortion Rights Action League (NARAL), as well as EMILY's List, a pro-choice political action committee. During his lifetime, Justice Harry Blackmun, author of the "Roe" opinion, also was a determined advocate for the decision, making speeches across the country praising Roe as essential to women's equality and reproductive freedom. During the 1980s and 1990s, pressure grew from these groups for the Democratic Party to take a unified stand in favor of "Roe."

Fueled by the intensity of feelings in both its supporters and critics, the controversy over "Roe" has shown no sign of abating. Justice Stephen Breyer delineated the positions of the two camps in his opinion for the Court in 2000's Stenberg v. Carhart:

Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death and violating the liberty of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of personal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.

'Arbitrary' and 'Legislative'

Internal Supreme Court memoranda that surfaced in the Library of Congress in 1988, among the personal papers of Justice Douglas, and in the papers of other Justices, showed the private discussions of the Justices on the case. Blackmun said of the majority decision he authored: "you will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." Stewart said that the lines were "legislative" and wanted more flexibility and consideration paid to the state legislatures, though he joined Blackmun's decision. Professor Douglas Kmiec testified on Justice Marshall's papers to this effect before the House Judiciary Committee in 1996. The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the Court's decision. The lines that Blackmun chose are no longer in effect since Planned Parenthood v. Casey (1992).

Roe's role in subsequent decisions and politics

Opposition to Roe on the bench grew as President Ronald Reagan, who supported legislative restrictions on abortion, controversially made abortion his "litmus test" for federal judicial appointments. In addition to White and Rehnquist, Reagan appointee Sandra Day O'Connor began dissenting from the Court's abortion cases, arguing that the trimester-based analysis devised by the Roe Court was "unworkable." Shortly before his retirement from the bench, Chief Justice Warren Burger suggested that Roe be "reexamined," and the associate justice who filled Burger's place on the Court, Justice Antonin Scalia, is a vigorous opponent of Roe. Concerns over a possible overturning of Roe played a major role in the defeat of Robert Bork's nomination to the Court, and the man eventually appointed to replace Roe supporter Lewis Powell, Anthony M. Kennedy, was seen as a potential anti-Roe vote.

Webster v. Reproductive Health Services

In a 5-4 decision in 1989's Webster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, but did uphold several abortion restrictions and substantially modified the Roe trimester framework. In a concurring opinion, Justice O'Connor pointedly refused to reconsider Roe. Justice Antonin Scalia, in a concurring opinion, refused to join the plurality's opinion because it refused to overrule Roe, and criticized O'Connor's ambiguous position on the matter. Justice Harry Blackmun, by now a passionate defender of his Roe opinion, dissented angrily, arguing that the plurality opinion signaled doom for the abortion right.

Planned Parenthood v. Casey

With the retirement of Roe supporters William J. Brennan and Thurgood Marshall, and their replacement by judges David Souter and Clarence Thomas, appointed by President George H. W. Bush, many predicted the demise of Roe. For example, during the confirmation hearings of David Souter, NOW president Molly Yard declared that confirming Souter would mean "ending freedom for women in this country … Women will die;" a protest was subsequently called.

The Supreme Court, however, in Planned Parenthood v. Casey, 505 U.S. 833 (1992), reexamined Roe and upheld its validity by a 5-4 vote. A plurality of Reagan-Bush appointees, Sandra Day O'Connor, Anthony Kennedy, and David H. Souter reaffirmed that the Constitution protects a right of abortion. Rehnquist and Scalia filed scathing dissenting opinions.

"Jane Roe" switches sides

In an interesting turn of events, "Jane Roe," whose real name is Norma McCorvey, became a member of the pro-life movement following her conversion to Christianity, fighting to make abortion illegal. In a press conference held on January 18, 2005, McCorvey claimed that she was the "pawn" of the ambitious Weddington, who was looking for a plaintiff to challenge the Texas state law prohibiting abortion. Using her prerogative as a party to the original litigation, she sought to reopen the case in a U.S. District Court in Texas and have it overturned. See McCorvey v. Hill, 385 F3d 846 (5th Cir 2004). Her new stance is based on claims made since the decision, claiming evidence of emotional and other harm suffered by many women who have had abortions, and increased resources for the care of unwanted children. On June 19, 2003, Judge David Godbey ruled that the motion was not made within a "reasonable time." On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, ending McCorvey's appeal.

State abortion bans seeking to overturn Roe v. Wade

South Dakota

On February 24, 2006, the South Dakota State Legislature passed a bill that was signed into law by Governor Mike Rounds on March 6, 2006. The law purports to make performing all abortions a felony, including those for pregnancies resulting from rape and incest. The bill does make an exception for a woman's health, but also directs the physician to make a reasonable effort to save both mother and child. Should the doctor fail to save the child (that is, if the child’s death is an unintended consequence of saving the mother), the doctor will not be prosecuted. The bill is worded as follows:

The bill states in Section 4:

"No licensed physician who performs a medical procedure designed or intended to prevent the death of a pregnant mother is guilty of violating section 2 of this Act." Section 2 is the text of the bill that bans abortions, given below.

Section 4 continues:

"However, the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child in a manner consistent with conventional medical practice. Medical treatment provided to the mother by a licensed physician which results in the accidental or unintentional injury or death to the unborn child is not a violation of this statute." The bill states in Section 2 (referenced in the wording of Section 4):

"No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being." [3]

Although the health of the mother is protected, doctors will be prosecuted for performing an abortion for any other reason. Its sponsors hope that a court challenge of the law will provide a vehicle that will allow the Supreme Court to reconsider and overturn Roe.

References

Secondary sources

  • Critchlow, Donald T. The Politics of Abortion and Birth Control in Historical Perspective (1996)
  • Critchlow, Donald T. Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America (2001).
  • Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe V. Wade (1998)
  • Hull, N.E.H. Roe V. Wade: The Abortion Rights Controversy in American History (2001)
  • Mohr, James C. Abortion in America: The Origins and Evolution of National Policy, 1800–1900. (1979)
  • Staggenborg, Suzanne. The Pro-Choice Movement: Organization and Activism in the Abortion Conflict (1994)

Primary sources

  • Hull, N.E.H. The Abortion Rights Controversy in America: A Legal Reader (2004)
  • Rubin, Eva R. ed. The Abortion Controversy: A Documentary History (1994)

Notes

  1. Cornell Law School.Text of the decision. Retrieved May 23, 2007.
  2. National Cancer Institute. Abortion Risk Fact sheet. Retrieved May 23, 2007.
  3. South Dakota State Legislature. An Act. Retrieved May 23, 2007.

External sites

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