Roe v. Wade

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For the 1989 television film, see Roe vs. Wade (film).
Roe v. Wade
Seal of the United States Supreme Court.svg
Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973
Full case name Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County
Citations 410 U.S. 113 (more)
93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
Prior history Judgment for plaintiffs, injunction denied, 314 F. Supp. 1217 (N.D. Tex. 1970); probable jurisdiction noted, 402 U.S. 941 (1971); set for reargument, 408 U.S. 919 (1972)
Subsequent history Rehearing denied, 410 U.S. 959 (1973)
Argument Oral argument
Reargument Reargument
Holding
Texas law making it a crime to assist a woman to get an abortion violated her due process rights. U.S. District Court for the Northern District of Texas affirmed in part, reversed in part.
Court membership
Case opinions
Majority Blackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell
Concurrence Burger
Concurrence Douglas
Concurrence Stewart
Dissent White, joined by Rehnquist
Dissent Rehnquist
Laws applied
U.S. Const. Amend. XIV; Tex. Code Crim. Proc. arts. 1191–94, 1196

Roe v. Wade, 410 U.S. 113 (1973), is a landmark decision by the United States Supreme Court on the issue of abortion. Decided simultaneously with a companion case, Doe v. Bolton, the Court ruled 7–2 that a right to privacy under the due process clause of the 14th Amendment extended to a woman's decision to have an abortion, but that this right must be balanced against the state's two legitimate interests in regulating abortions: protecting prenatal life and protecting women's health. Arguing that these state interests became stronger over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the third trimester of pregnancy.

The Court later rejected Roe's trimester framework, while affirming Roe's central holding that a person has a right to abortion until viability.[1] The Roe decision defined "viable" as being "potentially able to live outside the mother's womb, albeit with artificial aid", adding that viability "is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."[2]

In disallowing many state and federal restrictions on abortion in the United States,[3][4] Roe v. Wade prompted a national debate that continues today about issues including whether, and to what extent, abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role should be of religious and moral views in the political sphere. Roe v. Wade reshaped national politics, dividing much of the United States into pro-choice and pro-life camps, while activating grassroots movements on both sides.

Background

History of abortion laws in the United States

According to the Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." In 1821, Connecticut passed the first state statute criminalizing abortion. Every state had abortion legislation by 1900.[5] In the United States, abortion was sometimes considered a common law crime,[6] though Justice Blackmun would conclude that the criminalization of abortion did not have "roots in the English common-law tradition."[7]

Prior history of the case

In June 1969, Norma L. McCorvey discovered she was pregnant with her third child. She returned to Dallas, Texas, where friends advised her to assert falsely that she had been raped in order to obtain a legal abortion (with the understanding that Texas law allowed abortion in cases of rape and incest). However, this scheme failed because there was no police report documenting the alleged rape. She attempted to obtain an illegal abortion, but found the unauthorized site had been closed down by the police. Eventually, she was referred to attorneys Linda Coffee and Sarah Weddington.[8] (McCorvey would give birth before the case was decided.)

In 1970, Coffee and Weddington filed suit in a U.S. District Court in Texas on behalf of McCorvey (under the alias Jane Roe). The defendant in the case was Dallas County District Attorney Henry Wade who represented the State of Texas. McCorvey was no longer claiming her pregnancy was the result of rape, and later acknowledged that she had lied about having been raped.[9][10] "Rape" is not mentioned in the judicial opinions in this case.[11]

The district court ruled in McCorvey's favor on the legal merits of her case, but declined to grant an injunction against the enforcement of the laws barring abortion.[11] The district court's decision was based upon the 9th Amendment, and the court relied upon a concurring opinion by Justice Arthur Goldberg in the 1965 Supreme Court case of Griswold v. Connecticut,[12] finding in the decision for a right to privacy.[13]

Before the Supreme Court

Roe v. Wade reached the Supreme Court on appeal in 1970. The Justices delayed taking action on Roe and a closely related case, Doe v. Bolton, until they decided Younger v. Harris, as they felt that the appeals raised difficult questions on judicial jurisdiction, and United States v. Vuitch, where they considered the constitutionality of a District of Columbia statute that criminalized abortion except where the mother's life or health was endangered. In Vuitch, the Court narrowly upheld the statute, though in doing so, it treated abortion as a medical procedure and stated that the physician must be given room to determine what suffices as a danger to (physical or mental) health. The day after they announced their decision in Vuitch, they voted to hear both Roe and Doe.[14]

Arguments were scheduled by the full Court for December 13, 1971. Before the Court could hear the oral arguments, Justices Black and Harlan retired. Chief Justice Burger asked Justices Stewart and Blackmun to determine whether Roe and Doe, among others, should be heard as scheduled. According to Blackmun, Stewart felt that the cases were a straightforward application of Younger v. Harris and recommended that the Court move forward as scheduled.[15]

In his opening argument in defence of the abortion restrictions, Jay Floyd made a joke that was later described as the "Worst Joke in Legal History".[16] Appearing against two female lawyers, Floyd began, "Mr. Chief Justice and may it please the Court. It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word." His remark was met with cold silence; one observer thought that Chief Justice Burger "was going to come right off the bench at him. He glared him down".[17][18]

Following a first round of arguments, all seven Justices tentatively agreed that the law should be struck down, but for varying reasons.[19] Burger assigned the role of writing the Court's opinion in Roe (as well as Doe) to Blackmun, who began drafting a preliminary opinion that emphasized what he saw as the Texas law's vagueness.[20] Justices Rehnquist and Powell joined the Supreme Court too late to hear the first round of arguments. Additionally, Blackmun felt that his opinion was an inadequate reflection of his liberal colleagues' opinions.[21] In May 1972, Blackmun proposed that the case be reargued. Justice Douglas threatened to write a dissent from the reargument order (he and the other liberal Justices were suspicious that Rehnquist and Powell would vote to uphold the statute), but was coaxed out of the action by his colleagues, and his dissent was merely mentioned in the reargument order without further statement or opinion.[22][23] The case was reargued on October 11, 1972. Weddington continued to represent Roe, and Texas Assistant Attorney General Robert C. Flowers stepped in to replace Jay Floyd for Texas.

Blackmun continued work on his opinions in both cases over the summer recess, despite the fact that there was no guarantee that he would be assigned to write the opinions again. Over the recess, Blackmun spent a week researching the history of abortion at the Mayo Clinic in Minnesota, where he had worked in the 1950s. After the Court heard the second round of arguments, Powell stated that he would agree with Blackmun's conclusion but pushed for Roe to be the lead of the two abortion cases being considered. Powell also suggested that the Court strike down the Texas law on privacy grounds. White was unwilling to sign on to Blackmun's opinion, and Rehnquist had already decided to dissent.[24]

Supreme Court decision

Harry Blackmun wrote the Court’s opinion.

The Court issued its decision on January 22, 1973, with a 7-to-2 majority vote in favor of Roe. Burger and Douglas' concurring opinions and White's dissenting opinion were issued along with the Court's opinion in Doe v. Bolton (announced on the same day as Roe v. Wade). The Court deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny.[25]

Right to privacy

The Court declined to adopt the district court's Ninth Amendment rationale, and instead asserted that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."[26] Douglas, in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, "The Ninth Amendment obviously does not create federally enforceable rights."[27]

The Court asserted that the government had two competing interests – protecting the mother's health and protecting the "potentiality of human life". Following its earlier logic, the Court stated that during the first trimester, when the procedure is more safe than childbirth, the decision to abort must be left to the mother and her physician. The State has the right to intervene prior to fetal viability only to protect the health of the mother, and may regulate the procedure after viability so long as there is always an exception for preserving maternal health. The Court additionally added that the primary right being preserved in the Roe decision was that of the physician's right to practice medicine freely absent a compelling state interest – not women's rights in general.[28] The Court explicitly rejected a fetal "right to life" argument.[29]

The Justices had discussed the trimester framework extensively. Powell had suggested that the point where the State could intervene be placed at viability, which Marshall supported as well.[30] Blackmun wrote 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."[31] Douglas preferred the first trimester line,[32] while Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to the state legislatures, though he joined Blackmun's decision.[33] Brennan proposed abandoning frameworks based on the age of the fetus and instead allowing states to regulate the procedure based on its safety for the mother.[32]

Justiciability

An aspect of the decision that attracted comparatively little attention was the Court's disposition of the issues of standing and mootness. Under the traditional interpretation of these rules, Jane Roe's appeal was "moot" because she had already given birth to her child and thus would not be affected by the ruling; she also lacked "standing" to assert the rights of other pregnant women.[34] As she did not present an "actual case or controversy" (a grievance and a demand for relief), any opinion issued by the Supreme Court would constitute an advisory opinion, a practice forbidden by Article III of the United States Constitution.

The Court concluded 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".[35] This phrase had been coined in 1911 by Justice Joseph McKenna.[36] Blackmun's opinion quoted McKenna, and noted that 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."[37]

Dissents

Byron White was the senior dissenting justice.

Justices Byron R. White and William H. Rehnquist wrote emphatic dissenting opinions in this case. White 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 women 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 woman, 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.[38][39]

White asserted that the Court "values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries." Despite White suggesting he "might agree" with the Court's values and priorities, he wrote that he saw "no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States." White criticized the Court for involving itself in this issue by creating "a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it." He would have left this issue, for the most part, "with the people and to the political processes the people have devised to govern their affairs."

Rehnquist elaborated upon several of White's points, by asserting that the Court's historical analysis was flawed:

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. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.[40][41][42]

From this historical record, Rehnquist concluded that, "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." Therefore, in his view, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."

Reception

Political

The most prominent organized groups that mobilized in response to Roe are the National Abortion Rights Action League and the National Right to Life Committee.

Support

Advocates of Roe describe it as vital to the preservation of women's rights, personal freedom, and privacy. Denying the abortion right has been equated to compulsory motherhood, and some scholars (not including any member of the Supreme Court) have argued that abortion bans therefore violate the Thirteenth Amendment:

When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the Thirteenth Amendment….[E]ven if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant.[43]

Some opponents of abortion maintain that personhood begins at fertilization (also referred to as conception), and should therefore be protected by the Constitution;[44] the dissenting justices in Roe instead wrote that decisions about abortion "should be left with the people and to the political processes the people have devised to govern their affairs."[38]

The majority opinion allowed states to protect "fetal life after viability" even though a fetus is not "a person within the meaning of the Fourteenth Amendment". Supporters of Roe contend that the decision has a valid constitutional foundation, or contend that justification for the result in Roe could be found in the Constitution but not in the articles referenced in the decision.[43][44]

Opposition

Protestors at the 2009 March for Life rally against Roe v. Wade

Every year, on the anniversary of the decision, opponents of abortion march up Constitution Avenue to the Supreme Court Building in Washington, D.C., in the March for Life.[45] Around 250,000 people have attended the march until 2010.[46][47] Estimates put both the 2011 and 2012 attendances at 400,000 each,[48] and the 2013 March for Life drew an estimated 650,000 people.[49]

Opponents of Roe have asserted that the decision lacks a valid constitutional foundation.[50] Like the dissenters in Roe, they have maintained that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the legislative process, rather than through an all-encompassing ruling from the Supreme Court.[51]

A prominent argument against the Roe decision is that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm.[52]

In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent for minors to obtain abortions, parental notification laws, spousal mutual consent laws, spousal notification laws, laws requiring abortions to be performed in hospitals but not clinics, laws barring state funding for abortions, laws banning intact dilation and extraction (also known as partial-birth abortion), laws requiring waiting periods before abortion, and laws mandating women read certain types of literature and watch a fetal ultrasound before undergoing an abortion.[53] Congress in 1976 passed the Hyde Amendment, barring federal funding of abortions (except in the cases of rape, incest, or a threat to the life of the mother) for poor women through the Medicaid program. 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 upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).[54]

Perhaps the most notable opposition to Roe comes from Roe herself; in 1995, Norma L. McCorvey revealed that she became pro-life and is now a vocal opponent of abortion.[55]

Legal

Harry Blackmun, who authored the decision, became inexorably attached to the decision. Despite his initial reluctance, he eventually became the decision's chief champion and protector during his later years on the Court.[56] Others have joined him in support of Roe, including Judith Jarvis Thomson, who before the decision had offered an influential defense of abortion.[57]

Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One reaction has been to argue that Justice Blackmun reached the correct result but went about it the wrong way.[58] Another reaction has been to argue that the end achieved by Roe does not justify the means.[59]

Justice John Paul Stevens, while agreeing with the decision, has suggested that it should have been more narrowly focused on the issue of privacy. According to Stevens, if the decision had avoided the trimester framework and simply stated that the right to privacy included a right to choose abortion, "it might have been much more acceptable" from a legal standpoint.[60] His colleague Justice Ruth Bader Ginsburg had, before joining the Court, criticized the decision for terminating a nascent movement to liberalize abortion law through legislation.[61] Ginsburg has also faulted the approach taken by the Court in the decision for being "about a doctor's freedom to practice his profession as he thinks best.... It wasn't woman-centered. It was physician-centered.”[62] Watergate prosecutor Archibald Cox wrote: "[Roe’s] failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations.... Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."[63]

In a highly cited 1973 article in the Yale Law Journal,[64] 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."[65] Ely added: "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure." Professor Laurence Tribe had similar thoughts: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."[66] Liberal law professors Alan Dershowitz,[67] Cass Sunstein,[68] and Kermit Roosevelt[69] have also expressed disappointment with Roe.

Jeffrey Rosen[70] and Michael Kinsley[71] echo Ginsburg, arguing that a legislative approach movement would have been the correct way to build a more durable consensus in support of abortion rights. William Saletan wrote that "Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference."[72] Benjamin Wittes has written that Roe "disenfranchised millions of conservatives on an issue about which they care deeply".[73] And Edward Lazarus, a former Blackmun clerk who "loved Roe’s author like a grandfather" wrote: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible....Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms."[74]

The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the Court's decision.[75] The "viability" criterion, which Blackmun acknowledged was arbitrary, is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.[76]

Public opinion

A Gallup poll conducted in May 2009 indicates that a minority of Americans, 37%, believe that abortion should be legal in any or most circumstances, compared to 41% in May 2008.[77] Similarly, an April 2009 Pew Research Center poll showed a softening of support for legal abortion compared to the previous years of polling. People who said they support abortion in all or most cases dropped from 54% in 2008 to 46% in 2009.[78]

In contrast, an October 2007 Harris poll on Roe v. Wade asked the following question:

In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?[79]

In reply, 56 percent of respondents indicated favour while 40 percent indicated opposition. The Harris organization concluded from this poll that "56 percent now favours the U.S. Supreme Court decision." Pro-life activists have disputed whether the Harris poll question is a valid measure of public opinion about Roe's overall decision, because the question focuses only on the first three months of pregnancy.[80][81] The Harris poll has tracked public opinion about Roe since 1973:[79][82]

Roevwade.png

Regarding the Roe decision as a whole, more Americans support it than support overturning it.[83] When pollsters describe various regulations that Roe prevents legislatures from enacting, support for Roe drops.[83][84]

Role in subsequent decisions and politics

Opposition to Roe on the bench grew when President Reagan, who supported legislative restrictions on abortion, began making federal judicial appointments in 1981. Reagan denied that there was any litmus test: "I have never given a litmus test to anyone that I have appointed to the bench…. I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We've had too many examples in recent years of courts and judges legislating."[85]

In addition to White and Rehnquist, Reagan appointee Sandra Day O'Connor began dissenting from the Court's abortion cases, arguing in 1983 that the trimester-based analysis devised by the Roe Court was "unworkable."[86] Shortly before his retirement from the bench, Chief Justice Warren Burger suggested in 1986 that Roe be "reexamined";[87] the associate justice who filled Burger's place on the Court—Justice Antonin Scalia—vigorously opposed Roe. Concern about overturning Roe played a major role in the defeat of Robert Bork's nomination to the Court in 1987; the man eventually appointed to replace Roe-supporter Lewis Powell was Anthony M. Kennedy.

The Supreme Court of Canada used the rulings in both Roe and Doe v. Bolton as grounds to find Canada's federal law restricting access to abortions unconstitutional. That Canadian case, R. v. Morgentaler, was decided in 1988.[88]

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, because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution."[89] In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.[89]

In concurring opinions, O'Connor refused to reconsider Roe, and Justice Antonin Scalia criticized the Court and O'Connor for not overruling Roe.[89] Blackmun – author of the Roe opinion – stated in his dissent that White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their plurality opinion "foments disregard for the law."[89] White had recently opined that the majority reasoning in Roe v. Wade was "warped."[87]

Planned Parenthood v. Casey

During initial deliberations for Planned Parenthood v. Casey (1992), an initial majority of five Justices (Rehnquist, White, Scalia, Kennedy, and Thomas) were willing to effectively overturn Roe. Kennedy changed his mind after the initial conference,[90] and O'Connor, Kennedy, and Souter joined Blackmun and Stevens to reaffirm the central holding of Roe,[91] saying, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."[92] Only Justice Blackmun would have retained Roe entirely and struck down all aspects of the statute at issue in Casey.

Scalia's dissent acknowledged that abortion rights are of "great importance to many women", but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed. Scalia concluded: "[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish."[92]

Stenberg v. Carhart

Main article: Stenberg v. Carhart

During the 1990s, the state of Nebraska attempted to ban a certain second-trimester abortion procedure known as intact dilation and extraction (sometimes called partial birth abortion). The Nebraska ban allowed other second-trimester abortion procedures called dilation and evacuation abortions. Ginsburg (who replaced White) stated, "this law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."[93] The Supreme Court struck down the Nebraska ban by a 5–4 vote in Stenberg v. Carhart (2000), citing a right to use the safest method of second trimester abortion.

Kennedy, who had co-authored the 5-4 Casey decision upholding Roe, was among the dissenters in Stenberg, writing that Nebraska had done nothing unconstitutional.[93] Kennedy described the second trimester abortion procedure that Nebraska was not seeking to prohibit: "The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off." Kennedy wrote that since this dilation and evacuation procedure remained available in Nebraska, the state was free to ban the other procedure sometimes called "partial birth abortion."[93]

The remaining three dissenters in Stenberg – Thomas, Scalia, and Rehnquist – disagreed again with Roe: "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."

Gonzales v. Carhart

Main article: Gonzales v. Carhart

In 2003, Congress passed the Partial-Birth Abortion Ban Act, which led to a lawsuit in the case of Gonzales v. Carhart. The Court had previously ruled in Stenberg v. Carhart that a state's ban on "partial birth abortion" was unconstitutional because such a ban would not allow for the health of the woman. The membership of the Court changed after Stenberg, with John Roberts and Samuel Alito replacing Rehnquist and O'Connor, respectively. Further, the ban at issue in Gonzales v. Carhart was a clear federal statute, rather than a relatively vague state statute as in the Stenberg case.

On April 18, 2007, the Supreme Court handed down a 5 to 4 decision upholding the constitutionality of the Partial-Birth Abortion Ban Act. Kennedy wrote the majority opinion, asserting that Congress was within its power to generally ban the procedure, although the Court left the door open for as-applied challenges. Kennedy's opinion did not reach the question whether the Court's prior decisions in Roe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart were valid, and instead the Court said that the challenged statute is consistent with those prior decisions whether or not those prior decisions were valid.

Joining the majority were Chief Justice John Roberts, Scalia, Thomas, and Alito. Ginsburg and the other three justices dissented, contending that the ruling ignored Supreme Court abortion precedent, and also offering an equality-based justification for that abortion precedent. Thomas filed a concurring opinion, joined by Scalia, contending that the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed, and also noting that the Partial-Birth Abortion Ban Act may exceed the powers of Congress under the Commerce Clause.

Activities of Norma McCorvey

Norma McCorvey became a member of the pro-life movement in 1995; she now supports making abortion illegal. In 1998, she testified to Congress:

It was my pseudonym, Jane Roe, which had been used to create the "right" to abortion out of legal thin air. But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15, 20 years later and say, "Thank you for allowing me to have my five or six abortions. Without you, it wouldn't have been possible." Sarah never mentioned women using abortions as a form of birth control. We talked about truly desperate and needy women, not women already wearing maternity clothes.[10]

As a party to the original litigation, she sought to reopen the case in U.S. District Court in Texas to have Roe v. Wade overturned. However, the Fifth Circuit decided that her case was moot, in McCorvey v. Hill.[94] In a concurring opinion, Judge Edith Jones agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development, but Jones said she was compelled to agree that the case was moot. On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, and McCorvey's appeal ended.

Presidential positions

President Richard Nixon did not publicly comment about the decision.[95] In private conversation later revealed as part of the Nixon tapes, Nixon said "There are times when an abortion is necessary, I know that. When you have a black and a white" (a reference to interracial pregnancies) "or a rape."[96][97] However, Nixon was also concerned that greater access to abortions would foster "permissiveness," and said that "it breaks the family."[96]

Generally, presidential opinion has been split between major party lines. The Roe decision was opposed by Presidents Gerald Ford,[98] Ronald Reagan,[99] and George W. Bush.[100] President George H.W. Bush also opposed Roe, though he had supported abortion rights earlier in his career.[101][102]

President Jimmy Carter supported legal abortion from an early point in his political career, in order to prevent birth defects and in other extreme cases; he encouraged the outcome in Roe and generally supported abortion rights.[103] Roe was also supported by President Bill Clinton.[104] President Barack Obama has taken the position that "Abortions should be legally available in accordance with Roe v. Wade."[105]

State laws regarding Roe

Since 2010 there has been an increase in state restrictions on abortion.

Several states have enacted so-called trigger laws which would take effect in the event that Roe v. Wade is overturned. Those states include Arkansas, Illinois, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota.[106] Additionally, many states did not repeal pre-1973 statutes that criminalized abortion, and some of those statutes could again be in force if Roe were reversed.[107]

Other states have passed laws to maintain the legality of abortion if Roe v. Wade is overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington.[106]

The Mississippi Legislature has attempted to make abortion infeasible without having to overturn Roe v. Wade. The Mississippi law is currently being challenged in federal courts and has been temporarily blocked.[108]

In popular media

See also

Footnotes

  1. ^ "Roe v. Wade and Beyond", Frontline, PBS (2006-01-19): "while reaffirming the central holding of Roe v. Wade, the court rejected 'Roe's rigid trimester framework'...."
  2. ^ Wood, Mary and Hawkins, Lisa. "State Regulation of Late Abortion and the Physician's Duty of Care to the Viable Fetus", 45 Mo. L. Rev. 394 (1980).
  3. ^ Mears, William; Franken, Bob (2003-01-22). "30 years after ruling, ambiguity, anxiety surround abortion debate". CNN. "In all, the Roe and Doe rulings impacted laws in 46 states." 
  4. ^ Greenhouse 2005, p. 72
  5. ^ Cole, George; Frankowski, Stanislaw. Abortion and protection of the human fetus : legal problems in a cross-cultural perspective, page 20 (1987): "By 1900 every state in the Union had an anti-abortion prohibition." Via Google Books. Retrieved (2008-04-08).
  6. ^ Wilson, James, "Of the Natural Rights of Individuals" (1790–1792): "In the contemplation of law, life begins when the infant is first able to stir in the womb." Also see Blackstone, William. Commentaries (1765): "Life ... begins in contemplation of law as soon as an infant is able to stir in the mother's womb."
  7. ^ Greenhouse 2005, p. 92
  8. ^ McCorvey, Norma and Meisler, Andy. I Am Roe: My Life, Roe V. Wade, and Freedom of Choice (Harper Collins 1994).
  9. ^ Richard Ostling. "A second religious conversion for 'Jane Roe' of Roe vs. Wade", Associated Press (1998-10-19): "She confessed that her tale of rape a decade before had been a lie; she was simply an unwed mother who later gave the child up for adoption.".
  10. ^ a b McCorvey, Norma. Testimony to the Senate Subcommittee on the Constitution, Federalism and Property Rights (1998-01-21), also quoted in the parliament of Western Australia (PDF) (1998-05-20): "The affidavit submitted to the Supreme Court didn’t happen the way I said it did, pure and simple." Retrieved 2007-01-27
  11. ^ a b Roe v. Wade, 314 F. Supp. 1217 (1970): "On the merits, plaintiffs argue as their principal contention that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couple of their rights secured by the Ninth Amendment to choose whether to have children. We agree." Retrieved 2008-09-04.
  12. ^ O'Connor, Karen. Testimony before U.S. Senate Judiciary Committee, "The Consequences of Roe v. Wade and Doe v. Bolton", via archive.org (2005-06-23). Retrieved 2007-01-30
  13. ^ Greenhouse 2005, pp. 78–79
  14. ^ Greenhouse 2005, pp. 77–79
  15. ^ Greenhouse 2005, p. 80
  16. ^ Sant, Geoffrey. "8 horrible courtroom jokes and their ensuing legal calamities", Salon.com (2013-07-27): "The title of Worst Joke in Legal History belongs to one of history’s highest-profile cases. Defending Texas’s abortion restrictions before the Supreme Court, attorney Mr. Jay Floyd decided to open oral argument with a sexist joke. Arguing against two female attorneys, Floyd begins: 'It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.'" Retrieved 2010-08-10.
  17. ^ Malphurs 2010, p. 48
  18. ^ Garrow 1994, p. 526
  19. ^ Greenhouse 2005, p. 81
  20. ^ Schwartz 1988, p. 103
  21. ^ Greenhouse 2005, pp. 81–88
  22. ^ Garrow 1994, p. 556
  23. ^ Greenhouse 2005, p. 89
  24. ^ Greenhouse 2005, pp. 93–95
  25. ^ Although abortion is still considered a fundamental right under current jurisprudence, subsequent cases, notably Planned Parenthood v. Casey, Stenberg v. Carhart, and Gonzales v. Carhart have affected the legal standard.
  26. ^ Chase, H. et al. Supplement to Edward S. Corwin's The constitution and what it means today: Supreme Court decisions of 1973, 1974, and 1975, page 36 (Princeton University Press 1975): "The abortion cases afforded the Supreme Court another opportunity to caress the Ninth Amendment without embracing it."
  27. ^ Devins, Neal and Watson, Wendy. Judicial Nominations, page 225 (1995).
  28. ^ Greenhouse 2005, pp. 98–99
  29. ^ Roe v. Wade, 410 U.S. 113, Section IX (S. Ct. 1973).
  30. ^ Greenhouse 2005, pp. 96–97
  31. ^ Woodward, Bob. "The Abortion Papers", Washington Post (1989-01-22). Retrieved 2007-02-03.
  32. ^ a b Greenhouse 2005, p. 97
  33. ^ Kmiec, Douglas. "Testimony Before Subcommittee on the Constitution, Judiciary Committee, U.S. House of Representatives" (1996-04-22), via the "Abortion Law Homepage". Retrieved 2007-01-23.
  34. ^ Abernathy, M. et al., Civil Liberties Under the Constitution (U. South Carolina 1993), page 4. Retrieved 2007-02-04.
  35. ^ Chemerinsky, Erwin (2003). Federal Jurisdiction. Introduction to Law (4th ed.). Aspen Publishers. p. 132. ISBN 978-0-7355-2718-8. 
  36. ^ Southern Pacific v. Interstate Commerce Commission, 219 U.S. 498 (1911). Findlaw.com. Retrieved 2007-01-26
  37. ^ Roe v. Wade 410 U.S. 113, 125 (1973); see also Schwartz 1988, pp. 108–109
  38. ^ a b Doe v. Bolton, 410 U.S. 179 (1973). Findlaw.com. Retrieved 2007-01-26.
  39. ^ Potts, Malcolm et al. Abortion, page 347 (1977).
  40. ^ Roe v. Wade, 410 U.S. 113 (1972). Findlaw.com. Retrieved 2007-01-26
  41. ^ Currie, David (1994). The Constitution in the Supreme Court: The Second Century, 1888–1986 2. University of Chicago Press. p. 470. 
  42. ^ "Rehnquist's legacy", The Economist (2005-06-30).
  43. ^ a b Koppelman, Andrew. "Forced Labor: A Thirteenth Amendment Defense of Abortion", Northwestern Law Review, Volume 84, page 480 (1990).
  44. ^ a b What Roe v. Wade Should Have Said; The Nation’s Top Legal Experts Rewrite America’s Most Controversial decision, Jack Balkin Ed. (NYU Press 2005). Retrieved 2007-01-26
  45. ^ Shimron, Yonat. "Democratic Gains Spur Abortion Foes into Action," The News & Observer (2009-01-18): "The annual March for Life procession is already among Washington's largest rallies, drawing an estimated 200,000 people."
  46. ^ Harper, Jennifer. "Pro-life marchers lose attention," Washington Times (2009-01-22): "the event has consistently drawn about 250,000 participants since 2003."
  47. ^ Johnston, Laura. "Cleveland's first March for Life anti-abortion event draws 200," The Plain Dealer (2009-01-18): "the Washington March for Life…draws 200,000 annually on the anniversary of the Roe v. Wade decision."
  48. ^ "Youth Turnout Strong at US March for Life". Catholic.net. Zenit.org. January 25, 2011. Retrieved 2011-02-09. 
  49. ^ Portteus, Danielle (10 February 2013). "Newport: 650,000 In March For Life". MonroeNews. MonroeNews. Retrieved 14 April 2013. 
  50. ^ James F. Childress (1984). Bioethics Reporter. University Publications of America. p. 463. Retrieved 2 August 2013. "Roe v. Wade itself provided abortion rights with an unstable foundation." 
  51. ^ Alex Locay (January 2008). Unveiling the Left. Xulon Press. p. 187. ISBN 978-1-60266-869-0. Retrieved 2 August 2013. "To justify their decision the Court made up a new "right", not found in the Constitution: the right to privacy. The founders of course never intended for such rights to exists, as we know privacy is limited in many ways." 
  52. ^ Reagan, Ronald. Abortion and the Conscience of the Nation, (Nelson 1984): "If you don't know whether a body is alive or dead, you would never bury it. I think this consideration itself should be enough for all of us to insist on protecting the unborn." Retrieved 2007-01-26
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  55. ^ McCorvey, Norma, with Andy Meisler. 1994. I Am Roe: My Life, Roe v. Wade, and Freedom of Choice. New York: Harper-Collins.
  56. ^ Greenhouse 2005, pp. 183–206; 250
  57. ^ Thomson, Judith. "A Defense of Abortion", in Philosophy and Public Affairs, vol. 1, no. 1 (1971), pp. 47–66.
  58. ^ Balkin, Jack. Bush v. "Gore and the Boundary Between Law and Politics", 110 Yale Law Journal 1407 (2001): "Liberal and feminist legal scholars have spent decades showing that the result was correct even if Justice Blackmun’s opinion seems to have been taken from the Court’s Cubist period."
  59. ^ Cohen, Richard. "Support Choice, Not Roe", Washington Post, (2005-10-19): "If the best we can say for it is that the end justifies the means, then we have not only lost the argument — but a bit of our soul as well." Retrieved 2007-01-23.
  60. ^ Rosen, Jeffrey. "The Dissenter", The New York Times Magazine (2007-09-23). Rosen notes that Stevens is "the oldest and arguably most liberal justice."
  61. ^ Ginsburg, Ruth. "Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade", 63 North Carolina Law Review 375 (1985): "The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." Retrieved 2007-01-23.
  62. ^ Bullington, Jonathan (May 11, 2013). "Justice Ginsburg: Roe v. Wade not 'woman-centered'". Chicago Tribune. 
  63. ^ Cox, Archibald. The Role of the Supreme Court in American Government, 113–114 (Oxford U. Press 1976), via Google Books. Retrieved 2007-01-26. Stuart Taylor has argued that "Roe v. Wade was sort of conjured up out of very general phrases and was recorded, even by most liberal scholars like Archibald Cox at the time, John Harvey Link – just to name two Harvard scholars – as kind of made-up constitutional law." See Stuart Taylor Jr., Online News Hour, PBS 2000-07-13.
  64. ^ Greenhouse 2005, pp. 135–136
  65. ^ Ely, John Hart. "The Wages of Crying Wolf", 82 Yale Law Journal 920 (1973). Retrieved 2007-01-23. Professor Ely "supported the availability of abortion as a matter of policy." See Liptak, Adam. "John Hart Ely, a Constitutional Scholar, Is Dead at 64", New York Times (2003-10-27). Ely is generally regarded as having been a "liberal constitutional scholar." Perry, Michael (1999). We the People: The Fourteenth Amendment and the Supreme Court at Google Books Archived June 25, 2007 at the Wayback Machine
  66. ^ Tribe, Laurence (1973). "The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law". Harvard Law Review 87: 1 [p. 7]. doi:10.2307/1339866.  Quoted in Morgan, Richard Gregory (1979). "Roe v. Wade and the Lesson of the Pre-Roe Case Law". Michigan Law Review (The Michigan Law Review Association) 77 (7): 1724–1748. doi:10.2307/1288040. JSTOR 1288040. 
  67. ^ Dershowitz, Alan. Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford U. Press 2001): "Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)...." quoted by Green, "Bushed and Gored: A Brief Review of Initial Literature", in The Final Arbiter: The Consequences of Bush V. Gore for Law And Politics, ed. Banks C, Cohen D & Green J., editors, page 14 (SUNY Press 2005), via Google Books. Retrieved 2007-01-26.
  68. ^ Sunstein, Cass. Quoted by McGuire, New York Sun (2005-11-15): "What I think is that it just doesn't have the stable status of Brown or Miranda because it's been under internal and external assault pretty much from the beginning....As a constitutional matter, I think Roe was way overreached." Retrieved 2007-01-23. Sunstein is a "liberal constitutional scholar." See Herman, Eric. "Former U of C law prof on everyone's short court list", Chicago Sun-Times (2005-07-11). Archived December 23, 2007 at the Wayback Machine
  69. ^ Roosevelt, Kermit. "Shaky Basis for a Constitutional ‘Right’", Washington Post, (2003-01-22): "[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result….This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entitled to the protection of the 14th Amendment....By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values." Retrieved 2007-01-23. Archived March 19, 2007 at the Wayback Machine
  70. ^ Rosen, Jeffrey. "Why We’d Be Better off Without Roe: Worst Choice", The New Republic via Archive.org (2003-02-24): "In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people." Retrieved 2007-01-23.
  71. ^ Kinsley, Michael. "Bad choice", The New Republic (2004-06-13): "Against all odds (and, I'm afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court....[A] freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami." Retrieved 2007-01-23.
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  73. ^ Wittes, Benjamin. "Letting Go of Roe", The Atlantic Monthly, Jan/Feb 2005. Retrieved 2007-01-23. Wittes also said, "I generally favor permissive abortion laws." Wittes has elsewhere noted that, "In their quieter moments many liberal scholars recognize that the decision is a mess." See Wittes, Benjamin. "A Little Less Conversation", The New Republic 2007-11-29
  74. ^ Lazarus, Edward. "The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them", Findlaw's Writ (2002-10-03). Retrieved 2007-01-23.
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References

Further reading

  • Critchlow, Donald T. (1996). The Politics of Abortion and Birth Control in Historical Perspective. University Park, PA: Pennsylvania State University Press. ISBN 0-271-01570-5. 
  • Critchlow, Donald T. (1999). Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America. New York: Oxford University Press. ISBN 0-19-504657-9. 
  • Hull, N.E.H. (2004). The Abortion Rights Controversy in America: A Legal Reader. Chapel Hill: University of North Carolina Press. ISBN 0-8078-2873-4. 
  • Hull, N.E.H.; Peter Charles Hoffer (2001). Roe v. Wade: The Abortion Rights Controversy in American History. Lawrence, KS: University Press of Kansas. ISBN 0-7006-1143-6. 
  • Mohr, James C. (1979). Abortion in America: The Origins and Evolution of National Policy, 1800–1900. Oxford: Oxford University Press. ISBN 0-19-502616-0. 
  • Rubin, Eva R. [ed.] (1994). The Abortion Controversy: A Documentary History. Westport, CT: Greenwood. ISBN 0-313-28476-8. 
  • Staggenborg, Suzanne (1994). The Pro-Choice Movement: Organization and Activism in the Abortion Conflict. New York: Oxford University Press. ISBN 0-19-506596-4. 

External links