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Roe v. Wade
|Roe v. Wade|
Supreme Court of the United States of America
| Argued December 13, 1971|
Decided January 22, 1973
|Texas laws criminalizing abortion violated women's Fourteenth Amendment right to choose whether to continue a pregnancy. Judgment of U.S. District Court for the Northern District of Texas affirmed in part, reversed in part.|
|U.S. Const. Amend. XIV; Tex. Code Crim. Proc. arts. 1191-94, 1196|
Roe v. Wade, 410 U.S. 113 (1973) was the landmark United States Supreme Court decision that established that laws against abortion violate a constitutional right to privacy, overturning all state laws outlawing or restricting abortion. It remains one of the most controversial decisions in Supreme Court history.
The decision in Roe v. Wade has sparked a decades-long national debate over whether or when abortion should be legal; 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.
Roe sparked widespread opposition, from those who viewed the Court's decision as illegitimate for straying too far from the text and history of the Constitution, as well as from those motivated by religious and moral beliefs about the inviolability of fetal life. It also attracted widespread support, from those who view the decision as necessary to achieve women's equality and personal freedom. As a result of this conflict, pressure was successfully placed on the Republican Party to commit itself to limiting or overturning Roe v. Wade, through judicial nominations and legislation (although, ironically, the Roe v. Wade court itself had a majority of Republican-appointed judges); while the Democratic Party faced pressure to take a uniform pro-choice stand in support of Roe v. Wade. The Supreme Court has been forced on several occasions to acknowledge the furor it inspired, and indeed reopened Roe v. Wade in a 1992 case, only to reaffirm its earlier decision.
Background of the case
The case originated in Texas in March 1970 at the suggestion of Sarah Weddington, a young Austin attorney who would play the leading role in pursuing the case. Weddington brought a lawsuit on behalf of Norma McCorvey, an unmarried pregnant woman of Texas, to overturn the state of Texas' anti-abortion law. The name "Jane Roe", a standard alias for anonymous plaintiffs, was used to protect Norma McCorvey's identity. After filing the initial lawsuit, the case was expanded to include several other parties, including: James Hubert Hallford, a licensed physician who had been arrested for violations of the Texas abortion statutes; "John and Mary Doe," aliases for a married couple whose doctor had advised against pregnancy; "all couples similarly situated" to the Does; and "all other women" similarly situated to Roe.
At the time of the case, McCorvey claimed that she had become pregnant by rape. She has since recanted that claim.
The law in question made having or attempting to perform an abortion a crime, except by "medical advice for the purpose of saving the life of the mother." The suit claimed that the laws were unconstitutionally vague and abridged the rights guaranteed to pregnant women by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution. Dallas County district attorney Henry Wade was the defendant in the case. A three-judge district court ruled for "Jane Roe", but refused to grant injunctive relief against the enforcement of the laws.
Since 1965's Griswold v. Connecticut, the Supreme Court has recognized a "right of privacy" which inheres in the various provisions of the Bill of Rights, primarily the due process clause of the Fourteenth Amendment. The Due Process clause had long been held to have a "substantive" component, providing protection for certain fundamental rights. The ruling in Griswold recognized constitutional protection for the possession of birth control as part of an intimate sphere of marital privacy, and the reasoning of that case had been extended to protect the possession of birth control by non-married couples in 1972's Eisenstadt v. Baird. Many advocates of liberalizing abortion laws saw promise in this line of cases, as abortion was widely proscribed 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 Warren Burger assigned the opinion of the Court to Harry Blackmun, who wrote an opinion that would strike the Texas law down as unconstitutionally vague. 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 that new Justices William Rehnquist and Lewis F. Powell, Jr. participate, voted to reargue the case on October 11, 1972, at the behest of Chief Justice Burger. At the reargument, Weddington again represented Roe, while district attorney Wade was represented by Texas assistant attorney general Robert C. Flowers.
As recounted in Bob Woodward and Scott Armstrong's The Brethren, Justice William O. Douglas was outraged by Chief Justice Burger's proposal to put the case over for reargument, believing Burger wished that the case be decided after the November 1972 elections (Burger was a close friend of President Richard Nixon). 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 opinion on January 22, 1973, with a 7-2 majority voting to strike down the law and Byron White and William Rehnquist dissenting. On the same day, the same 7-2 majority invalidated a Georgia abortion law in the lesser-known case of Doe v. Bolton, 410 U.S. 179 (1973), involving Georgia's abortion laws.
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 19th 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 constitute 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 constitutional rights granted to 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, and Fourteenth Amendment. 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. It should be noted that 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.
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", including particularly 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 power 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.
Byron White, joined by William Rehnquist, vigorously dissented, calling the Court's decision "an exercise of raw judicial power." He wrote:
- I find nothing in the language or history of the Constitution to support the Court's judgment. 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.
Controversy over Roe
The Roe decision sparked nationwide protest, including a massive letter-writing campaign to the Supreme Court. Many Americans, including many Catholics and evangelical Protestants, believe that abortion is morally equivalent to infanticide. Others believe that life begins upon conception, and thus the right to life of the fetus trumps any other rights. Widespread protest over the decision resulted in the creation of the Pro-Life Movement, which organized large protest rallies outside the Supreme Court. 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 fetuses. 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; more credibly, abortion has been linked to persistent guilt feelings and other psychological problems, and to a higher risk of future infertility. 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 the right of 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 the so-called "partial-birth abortion" procedure, laws requiring waiting periods before abortion, laws mandating that women read certain types of literature before choosing an abortion, and many more. The United States Congress in the 1970s passed the Hyde Amendment, barring federal funding for abortion. Abortions are currently prohibited in overseas military hospitals, and the U.S. 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," 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." 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, as well as EMILY's List, a pro-choice Political Action Committee. During his lifetime, Harry Blackmun, author of the Roe opinion, also was a determined advocate for the decision, making speeches across the country in support of Roe. 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" shows 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 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 equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering."
Roe and national politics: Bork, Webster, and Casey
Opposition to Roe on the bench grew as 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.
In a 5-4 decision in 1989's Webster vs. 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.
With the retirement of Roe supporters William J. Brennan and Thurgood Marshall, and their replacement by judges appointed by President George H. W. Bush, many predicted the demise of Roe. The Supreme Court, however, in Planned Parenthood v. Casey, 505 U.S. 833 (1992), reexamined Roe and explicitly upheld its validity by a 5-4 vote. A plurality of Reagan-Bush appointees, O'Connor, Kennedy, and David H. Souter, reaffirmed that the Constitution protects a right of abortion. Rehnquist and Scalia filed biting dissenting opinions. During the 1990s, attempts were made at the state level to ban "partial-birth" abortions, which were struck down, again by a 5-4 vote, in Stenberg v. Carhart, 530 U.S. 914 (2000), with Justice Kennedy, co-author of the Casey decision, among the dissenters. Subsequently, Congress passed a law banning third trimester abortions, which is currently in litigation. George W. Bush has proposed an amendment to the constitution that would ban third trimester abortions.
"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, and now fights 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. Her new stance is based on claims made since the decision, including evidence of emotional and other harm suffered by many women who have had abortions, increased resources for the care of unwanted children, and additional evidence of the humanity of the fetus. 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.
- Craig, Barbara Hinkson and O'Brien, David M., Abortion and American Politics. Chatham, NJ: Chatham House, 1993.
- Woodward, Bob and Armstrong, Scott, The Brethren. New York: Simon & Schuster, 1979, pp. 193-207, 215-223, 258. 271-284, 491-493.
- Judith Jarvis Thomson, "A Defense of Abortion." Philosophy and Public Affairs, vol. 1, no. 1 (1971), pp. 47-66.
- John Hart Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade." 82 Yale Law Journal 920 (1973).
- Lazarus, Edward, Closed Chambers. New York: Penguin Group, 1999.
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