Everything about Roe V Wade totally explained
Roe v. Wade,
410 U.S. 113 (1973) is a controversial
United States Supreme Court case that resulted in a
landmark decision regarding
abortion. According to the
Roe decision, most laws against
abortion in the United States violated a
constitutional right to
privacy under the
Due Process Clause of the
Fourteenth Amendment. The decision overturned all
state and
federal laws outlawing or restricting abortion that were inconsistent with its
holdings.
Roe v. Wade is one of the most controversial and politically significant cases in U.S. Supreme Court history. Its lesser-known companion case,
Doe v. Bolton, was decided at the same time.
The central holding of
Roe v. Wade was that abortions are permissible for any reason a woman chooses, up until the "point at which the
fetus becomes ‘viable,’ that is, potentially able to live outside the mother's
womb, albeit with artificial aid.
Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."
The
Roe v. Wade decision prompted national debate that continues to this day. Debated subjects include whether and to what extent abortion should be illegal, who should decide whether or not abortion is illegal, 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 nation into pro-
Roe (mostly "
pro-choice") and anti-
Roe (mostly "
pro-life") camps, and inspiring
grassroots activism on both sides.
History of case
In 1970 at the Pennsylvania State House, attorneys
Linda Coffee and
Sarah Weddington filed suit in a U.S. District Court in
Texas on behalf of
Norma L. McCorvey ("Jane Roe"). McCorvey claimed her pregnancy was the result of
rape. The district court's decision was based upon the
Ninth Amendment, and the court also relied upon a concurring opinion by Justice
Arthur Goldberg in the 1965 Supreme Court case of
Griswold v. Connecticut, regarding a right to use
contraceptives. Few state laws proscribed contraceptives in 1965 when the
Griswold case was decided, whereas abortion was widely proscribed by state laws in the early 1970s.
Roe v. Wade ultimately reached the U.S. Supreme Court on
appeal. Following a first round of arguments, Justice
Harry Blackmun drafted a preliminary opinion that emphasized what he saw as the Texas law's vagueness.
Justices William Rehnquist and
Lewis F. Powell, Jr. joined the Supreme Court too late to hear the first round of arguments. Therefore,
Chief Justice Warren Burger proposed that the case be reargued; this took place on
October 11,
1972. Weddington continued to represent
Roe, and Texas Assistant Attorney General Robert C. Flowers stepped in to replace Wade. Justice
William O. Douglas threatened to write a dissent from the reargument order, 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.
Supreme Court decision
The court issued its decision on
January 22,
1973, with a 7 to 2 majority voting to strike down Texas abortion laws. Burger and Douglas' concurring opinion and White's dissenting opinion were issued separately, in the companion case of
Doe v. Bolton.
The
Roe 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. Although abortion is still considered a fundamental right, subsequent cases, notably
Planned Parenthood of Southeastern Pennsylvania v. Casey,
Stenberg v. Carhart, and
Gonzales v. Carhart have affected the legal standard.
The opinion of the
Roe Court, written by Justice
Harry Blackmun, 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." Douglas, in his concurring opinion from the companion case
Doe v. Bolton, stated more emphatically that, "The Ninth Amendment obviously doesn't create federally enforceable rights." Thus, the
Roe majority rested its opinion squarely on the Constitution's
due process clause.
According to the
Roe Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage."
Abortion before Roe had been subject to criminal statutes since at least the nineteenth century. Section VI of Blackmun's opinion was devoted to an analysis of historical attitudes, including those of the
Persian Empire,
Greek times, the
Roman era, the
Hippocratic oath, the
common law, English
statutory law, American law, the
American Medical Association, the
American Public Health Association, and the
American Bar Association.
Without finding what it deemed a sufficient historical basis to justify the Texas statute, the Court identified three possible 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. To the first, Blackmun wrote that "no court or commentator has taken the argument seriously" and the statute failed to "distinguish between married and unwed mothers"; 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."
Although the Constitution doesn't explicitly mention any right of privacy, the Court had previously found support for various privacy rights in several provisions of the
Bill of Rights and the
Fourteenth Amendment, as well as in the "
penumbra" of the Bill of Rights. But instead of relying upon the Bill of Rights or "penumbras, formed by emanations", as the Court had done in
Griswold v. Connecticut, the
Roe Court relied on a "right of privacy" that it said was located in the due process clause of the Constitution.
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", and declared, "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right isn't unqualified and must be considered against important state interests in regulation."
When weighing the competing interests that the Court had identified, Blackmun also asserted 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. The Court majority determined that the
original intent of the Constitution (up to the enactment of the Fourteenth Amendment in 1868) didn't include the unborn. However, the Court didn't specifically determine the question of whether or not a fetus is a person, noting that the matter remains undecided.
The Court's determination of whether a fetus can enjoy constitutional protection was separate from the notion of when life begins: "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, isn't in a position to speculate as to the answer." The Court only believed itself positioned to resolve the question of when a right to abortion begins.
The decision established a system of
trimesters that attempted to balance the state's legitimate interests against the abortion right. The Court ruled that the state can't 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 the state can choose to restrict or
proscribe abortion as it sees fit during the third trimester when the fetus is viable ("except where it's necessary, in appropriate medical judgment, for the preservation of the life or health of the mother").
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 doesn't 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 wouldn't be affected by the ruling, and also because she lacked standing to assert the rights of other pregnant women.
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." This phrase had been coined in 1911 by Justice
Joseph McKenna. 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." This ruling was critical to the Supreme Court's power to review the case.
Dissents
Associate Justices
Byron R. White and
William H. Rehnquist wrote emphatic dissenting opinions in this case. Justice White wrote:
Harris poll on
Roe v. Wade, asked the following question:
Roe since 1973:
| Years |
1973 |
1976 |
1979 |
1981 |
1985 |
1989 |
1991 |
1992 |
1993 |
1996 |
1998 |
2005 |
2006 |
2007 |
| Support for Roe as compared to 1973 | +0% |
+7% |
+8% |
+4% |
-2% |
+7% |
+13% |
+9% |
+4% |
+0% |
+5% |
+0% |
-3% |
+4%
|
| Opposition to Roe as compared to 1973 | +0% |
-14% |
-5% |
-1% |
+5% |
-5% |
-9% |
-7% |
+0% |
-1% |
-1% |
+5% |
+5% |
-2%
|
Role in subsequent decisions and politics
The
Roe decision was opposed by Presidents
Gerald Ford,
Ronald Reagan,
George H.W. Bush, and
George W. Bush. It was supported by Presidents
Jimmy Carter and
Bill Clinton.
Richard Nixon didn't publicly comment about it.
Opposition to
Roe on the bench grew when
President Reagan — who supported legislative restrictions on abortion — made federal judicial appointments. Reagan denied that there was any
litmus test: "I have never given a litmus test to anyone that I've 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."
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"; the associate justice who filled Burger's place on the Court—Justice
Antonin Scalia—has been a vigorous opponent of
Roe. Concern about overturning of
Roe played a major role in the defeat of
Robert Bork's nomination to the Court; the man eventually appointed to replace
Roe supporter Lewis Powell was
Anthony M. Kennedy.
In Canada, its Supreme Court used the rulings in both
Roe and
Doe v. Bolton as grounds to find Canada's federal law restricting access to abortions unconstitutional in
R. v. Morgentaler (1 S.C.R. 30) 1988, and to find provisional restrictions on abortion also unconstitutional,
R. v. Morgentaler (1993).
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." In this case, the Court upheld several abortion restrictions, and modified the
Roe trimester framework. During the confirmation hearings of David Souter,
NOW president
Molly Yard declared that confirming Souter would mean "ending freedom for women in this country."
According to
NPR, in deliberations for
Planned Parenthood v. Casey (1992), an initial majority of five Justices that would have overturned
Roe foundered when
Justice Kennedy switched sides. O'Connor, Kennedy, and Souter joined Blackmun and Stevens to reaffirm the central holding of
Roe, 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." Rehnquist and Scalia signed each others' dissenting opinions; White and Thomas signed those dissenting opinions as well.
Scalia's dissent acknowledged that abortion rights are of "great importance to many women", but asserted that it isn't a liberty protected by the Constitution, because the Constitution doesn't mention it, and because longstanding traditions have permitted it to be legally proscribed. Scalia concluded: "by 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." 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 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.}}
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. 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.
State abortion bans
On
March 6,
2006, hoping to directly challenge
Roe v. Wade,
South Dakota Governor Mike Rounds signed into law a
pro-life statute which made performing abortions a
felony. That law was subsequently repealed in a
referendum held on
November 7 of the same year. On
February 27 2006,
Mississippi’s House Public Health Committee voted to approve a ban on abortion, but that bill died after the House and Senate failed to agree on compromise legislation.
Several states have enacted so-called "
trigger laws" which "would take effect if
Roe v. Wade is overturned." Those states include Illinois, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota. Other states have passed laws to maintain the legality of abortion if
Roe v. Wade is overturned, and those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington.
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