Roe v. Wade
| Roe v. Wade | ||||||||
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| File:Seal of the United States Supreme Court.gif Supreme Court of the United States | ||||||||
| Argued December 13, 1971 Decided January 22, 1973 | ||||||||
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| Holding | ||||||||
| 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. | ||||||||
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| Case opinions | ||||||||
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| Laws applied | ||||||||
| U.S. Const. Amend. XIV; Tex. Code Crim. Proc. arts. 1191-94, 1196 |
Roe v. Wade, 410 U.S. 113 (1973), was a landmark United States Supreme Court case, establishing that laws against abortion violate a constitutional right to privacy, and effectively overturning all state laws outlawing or restricting abortion. It remains one of the most controversial decisions in Supreme Court history, in terms of both the substantive result, and the process through which the result was reached.
The decision in Roe v. Wade 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, dividing much of the nation into "pro-choice" and "pro-life" camps and inspiring grassroots activism from those on all sides of the issue.
Many who supported the ruling viewed the decision as necessary to fully achieve women's equality and protect the right to privacy (previously discovered by the Court in Griswold v. Connecticut). Many also disagreed with the ruling, including religious groups who believed very strongly in the inviolability of the fetus, as well as others who felt the decision strayed too far from the text of the Constitution, which does not explicitly guarantee a "right to privacy". The two major political parties also landed squarely on opposite sides of the issue, with the Republican Party committing to limiting or overturning Roe, and the Democratic Party equally determined to protect it.
In several cases since the decision in Roe was handed down, the Supreme Court has had the opportunity to revisit the precedent. While the Court has made some modifications over the last thirty years, the central holding protecting a woman's right to have an abortion in certain circumstances has remained in effect.
Background
The case originated in Texas in March 1970 at the suggestion of Sarah Weddington, a young Austin attorney who played a leading role in pursuing the case. Weddington brought a lawsuit on behalf of Norma McCorvey, an unmarried pregnant woman seeking to overturn the Texas anti-abortion law. The name "Jane Roe", a standard alias for anonymous plaintiffs, was used to protect McCorvey's identity. After filing the initial lawsuit, the case was expanded to include several other plaintiffs, 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; and all others who might be in the same position as McCorvey and the Does.
The law in question made having or performing an abortion a crime, except by "medical advice for the purpose of saving the life of the mother." The lawsuit claimed that the statute was unconstitutionally vague and abridged privacy rights of pregnant women guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution. The defendant in the case was Dallas County District Attorney Henry Wade. 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 emanating from the various provisions of the Constitution, primarily the Due Process clause of the Fourteenth Amendment. In cases such as Dred Scott v. Sanford and Lochner v. New York, the Supreme Court had developed the doctrine of substantive due process, holding that the Due Process clause was not only a procedural guarantee (as the term due process would imply prima facie) but that it also protected many fundamental (and unenumerated) substantive rights. The ruling in Griswold recognized Constitutional protection for the use 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 unmarried couples in 1972's Eisenstadt v. Baird. Many advocates of liberalizing abortion laws saw an opportunity to bypass the legislature, as abortion was banned or significantly restricted by laws in 46 states at that time.
Both "Jane Roe" and Henry Wade appealed to the Supreme Court. On 13 December, 1971, the Court heard oral arguments by Weddington (who, at age 26, was one of the youngest attorneys ever to appear in front of the Supreme Court) and Texas Assistant Attorney General Jay Floyd.
Following deliberations, Chief Justice Warren Burger assigned the opinion of the Court to Justice Harry Blackmun, who wrote an opinion that would strike down the Texas law as unconstitutionally vague. Unimpressed with the first oral argument and underwhelmed by Blackmun's initial opinion, Burger proposed that the case be put over for reargument, and seven of his fellow justices agreed. As recounted in Bob Woodward and Scott Armstrong's book The Brethren, Justice William O. Douglas was outraged by Burger's proposal, believing Burger didn't want the case to be decided until after the November 1972 elections, as Burger was a close friend of President Richard Nixon. Douglas threatened to write a dissent to 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 reargument took place on 11 October, 1972. Weddington again represented "Roe," while Texas Assistant Attorney General Robert C. Flowers argued on behalf of District Attorney Wade.
Supreme Court decision
The Court issued its opinion on January 22, 1973, with a 7-2 majority voting to strike down the Texas law (Justice Byron White and Justice William Rehnquist dissented). 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). State laws outlawing abortion were set aside by the Court, permitting abortions during the first three months of pregnancy and setting standards for regulations after that time to safeguard the woman's health.
The Court identified three explanations for 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. As it stated, "[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."
In its ruling, the Supreme Court declared all but the least restrictive state statutes unconstitutional. Noting that early abortions had become safer than childbirth and reasoning that the word "person" in the Constitution "does not include the unborn," the Court defined the reciprocal limits of state power and individual freedom within each of the three stages of pregnancy:
- During the first trimester, the abortion decision must be left to the medical judgment of the pregnant woman's attending physician, as well as the pregnant woman herself;
- After the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health; and
- For the stage subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate and even proscribe abortion, except where it is necessary, in appropriate medical judgement, for the preservation of the life or health of the mother.
While the Court did determine that a "right of privacy," which included "a woman's decision whether or not to terminate her pregnancy," was implied by the rights granted in the Constitutional Amendments, the Court also noted 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 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."
The Court also considered information provided by the American Medical Association, the American Public Health Association, and the American Bar Association.
Majority
Justice Harry Blackmun fashioned the majority opinion. He starts by briefly outlining Roe’s position and establishing her legal standing. He then explores the ancient physicians' abortion perspective and the common law view of the unborn. He concludes by defining state responsibility and "person" in a way to allow abortion to continue without state intervention.
Section VI of the opinion is 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, and American law. Blackmun cites the Greek and Roman attitudes and the long-held Western position that abortion is, while reprehensible, still legal. The opinions of Soranos and Hippocrates, both of whom were ardently opposed to freewheeling abortion, are dismissed as being outside of mainline of Greek thinking and therefore not pertinent to the debate at hand. The notion of "quickening" in English common law, which defines the first movement of the fetus as the beginning of "life and soul", is noted along with the prevalent position that termination of life before "quickening" was only a misdemeanor offense. Dissenting historical examples to this opinion are mentioned, but are described as distant from contemporary popular thought. The abortion legal status during the early years of the United States was addressed by stating the general more leniency in comparison to attitudes starting in the middle of the 19th century. The opinion states, "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.
After the historical review and analysis, Blackmun reviews the American Medical Association’s long-standing acrimony towards unfettered abortion and its more recent withdrawals.
Next, he sets a legal method or framework by addressing the three major bases for proscriptive abortion legislation with the intent to contravene them. The first two arguments, the maintenance of women’s sexual morality and the danger of the abortion procedure itself, are adressed briefly as the first was not named as a basis for the Texas in question and the second is made obsolete by advences in medical science which make abortion no more dangerous than normal childbirth. Blackmun spent the bulk of the opinion discussiont the third argument which is the State's interest in protecting prenatal life. The Constitutional ground to debunk this argument was sought for within the Fourteenth Amendment’s implied “right of privacy” and the Ninth Amendment’s reservation of non-enumerated rights to the people.
Blackmun outlines what is lost if states are allowed to circumscribe abortion practices as follows:
- "The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved."
While the constitution does not specifically mention the relation of a fetus to the definition of "person," Blackmun states that the Constitution does not include the prenatal being in its definition of a “person.”
Dissent
Justice White, joined by Justice 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.
Justice Rehnquist, in his dissenting opinion, took issue with the use of the Fourteenth Amemdment to justify the right to an abortion:
- "I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not 'private' in the ordinary usage of that word. Nor is the 'privacy' that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy…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."
Justice White also accused the court of inventing a Constitutional right:
- "The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes."
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", 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..
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. However, anti-abortion activists who advocate or practice violence 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; 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 so-called "family planning" organizations that 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 written an influential article titled "A Defense of Abortion," printed in Philosophy and Public Affairs, vol. 1, no. 1 (1971), pp. 47-66.
Likewise, many groups have also emerged dedicated to protecting the decision in Roe and vigorously supporting abortion rights as necessary to women's equality and personal liberty. Most prominent among these are the National Abortion Rights Action League, the National Organization for Women, Planned Parenthood, and EMILY's List. These groups believe that a woman should not be forced into bearing children against her will, and that all decision-making authority regarding a woman's reproductive health must remain with the individual and her doctor, not with the government. During his lifetime, Justice Blackmun, author of the Roe opinion, remained a determined advocate for the decision, making speeches across the country in support of a woman's right to abortion.
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 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 Burger suggested that Roe be "reexamined," and the associate justice who filled Burger's place on the Court, Justice Antonin Scalia, was 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 Justice Powell, Anthony M. Kennedy, was seen as a potential anti-Roe vote.
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 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 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. Shortly before the retirement of Justice O'Connor, the Supreme Court granted certiorari in Ayotte v. Planned Parenthood of New England, a case challenging the parental notification law of the State of New Hampshire; with O'Connor's retirement, Stenberg's overruling seems possible, if not outright probable.
President 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, the anonymous plaintiff in the original case, Norma McCorvey, became a member of the pro-life movement following her conversion to Christianity, and now fights to make abortion illegal. When her case was first filed, McCorvey claimed that she had become pregnant by rape. She now claims that she was not raped, and in a press conference held on 18 January, 2005, McCorvey claimed that she was the "pawn" of the ambitious Weddington, who was looking for a challenge to the law prohibiting abortion. Using her standing as a party to the original litigation, McCorvey sought to reopen the case in a U.S. District Court in Texas and have it overturned. Her new stance was 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 19 June, 2003, Judge David Godbey ruled that the motion was not made within a "reasonable time." And on 22 February, 2005, the Supreme Court refused to grant a writ of certiorari, permanently ending McCorvey's appeal.
See also
- Sex-related court cases
- R. v. Morgentaler - Canadian Supreme Court finding Canada's abortion law unconstitutional
- German Federal Constitutional Court abortion decision
- Abortion
References
- . ISBN 0934540896.
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