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Roe v. Wade

Roe v. Wade
Supreme Court of the United States
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
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
Chief Justice: Warren E. Burger
Laws applied
U.S. Const. Amend. XIV; Tex. Code Crim. Proc. arts. 119194, 1196
Roe v. Wade, 410 U.S. 113 (1973) was a United States Supreme Court case that resulted in a landmark
decision regarding abortion.[1] 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.[2]
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
uterus, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may
occur earlier, even at 24 weeks."[1] The Court also held that abortion after viability must be available
when needed to protect a woman's health, which the Court defined broadly in the companion case of
Doe v. Bolton.
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, 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,
although she now says her claim was false.[3] The defendant in the case was Dallas County District
Attorney Henry Wade, representing the State of Texas.
The district court ruled in McCorvey's favor, but refused to grant an injunction against the enforcement of
the laws barring abortion.[4] The district court's decision was based upon the Ninth Amendment, and the
court also relied upon a concurring opinion by Justice Arthur Goldberg [5] 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.[6]
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
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vagueness.[7] 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.[8]
[edit] Supreme Court decision
Harry Blackmun wrote the Courts opinion.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 does not 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 does not 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
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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 is not 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. However, the Court majority determined that the original intent
of the Constitution (up to the enactment of the Fourteenth Amendment in 1868) did not include the
unborn.
The Court's determination of whether a fetus can enjoy constitutional protection 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, is not 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 cannot restrict a woman's right to an abortion
during the first trimester, the state can regulate the abortion procedure during the second trimester "in
ways that are reasonably related to maternal health", and 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 is necessary, in
appropriate medical judgment, for the preservation of the life or health of the mother").
[edit] 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 because she
lacked standing to assert the rights of other pregnant women.[9]
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.[10] 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.
[edit] Dissents
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Byron White was the senior dissenting justice.Associate Justices Byron R. White and William H.
Rehnquist wrote emphatic dissenting opinions in this case. Justice 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 mothers and, with scarcely any
reason or authority for its action, invests that right with sufficient substance to override most existing state
abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally
disentitled to weigh the relative importance of the continued existence and development of the fetus, on
the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise
of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its
judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution
extends to this Court.[2]
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.[1]
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."
[edit] Controversy
A criticism of Roe v. Wade (though not one made by the dissenting Justices in the case) is that the
majority opinion failed to adequately recognize the inviolability and personhood of embryonic/fetal human
life. Some pro-life supporters argue that life begins at conception, and thus the unborn should be entitled
to legal protection. Other pro-life supporters argue that, in the absence of definite knowledge of when life
begins, it is best to avoid the risk of doing harm.[11] While a majority of Americans believe that abortions
performed in the first trimester should generally be legal, a majority also believe that second trimester
abortions should generally be illegal.[12] Every year on the anniversary of the decision, tens of thousands
of pro-life protesters demonstrate outside the Supreme Court Building in Washington, D.C. in the March
for Life. Supporters describe Roe as vital to preservation of women's rights, personal freedom, and
privacy.
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Opponents of Roe have objected that the decision lacks a valid Constitutional foundation. 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 democratic process, rather
than through an all-encompassing ruling from the Supreme Court. 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.[13]
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 abortions utilizing intact
dilation and extraction procedures (often referred to as partial-birth abortion), laws requiring waiting
periods before abortion, or laws mandating women read certain types of literature before choosing an
abortion.[14] Congress in 1976 passed the Hyde Amendment, barring federal funding for abortion. 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).[15]
The most prominent organized groups that mobilized in response to Roe are the National Abortion Rights
Action League on the pro-choice side, and the National Right to Life Committee on the pro-life side.
During his life, Harry Blackmun, author of the Roe opinion, was a determined advocate for the decision.
Others have joined him in support of Roe, including Judith Jarvis Thomson, who before the decision had
offered an influential defense of abortion.[16]
Roe remains controversial; polls show continued division about its landmark rulings, and about the
decision as a whole.
[edit] Internal memoranda
Internal Supreme Court memoranda surfaced in the Library of Congress in 1988, among the personal
papers of Douglas and other Justices, showing the private discussions of the Justices on the case.
Blackmun said of the majority decision he authored, "You will observe that I have concluded that the end
of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening
or viability, is equally arbitrary."[17] Stewart said the lines were "legislative" and wanted more flexibility and
consideration paid to the state legislatures, though he joined Blackmun's decision.[18]
The assertion that the Supreme Court was making a legislative decision is often repeated by opponents
of the Court's decision.[19] 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.[20]
[edit] Liberal legal criticisms
Liberal legal scholars have criticized Roe, despite their opposition to pro-life laws, arguing that the ends
achieved by Roe do not justify the means.[21]
William Saletan, for example, has written that "Blackmuns [Supreme Court] papers vindicate every
indictment of Roe: invention, overreach, arbitrariness, textual indifference."[22] In a 1973 article in the
Yale Law Journal, 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."[23] Ely added: "What is frightening about Roe is
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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 nations governmental structure."
Similarly, Harvard law professor Laurence Tribe has noted that, "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."[24] Watergate prosecutor Archibald Cox wrote: "[Roes] 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."[25]
Ruth Bader Ginsburg has criticized the court's ruling in Roe v. Wade for terminating a nascent democratic
movement to liberalize abortion law.[26] Likewise, legal affairs editor Jeffrey Rosen[27] and Michael
Kinsley[28] say that a democratic movement would have been the correct way to build a more durable
consensus in support of abortion rights.
Legal analyst Benjamin Wittes has written that Roe "disenfranchised millions of conservatives on an
issue about which they care deeply".[29] Edward Lazarus, a former Blackmun clerk who "loved Roes
author like a grandfather" wrote: "As a matter of constitutional interpretation and judicial method, Roe
borders on the indefensible....Justice Blackmuns opinion provides essentially no reasoning in support of
its holding. And in the almost 30 years since Roes announcement, no one has produced a convincing
defense of Roe on its own terms."[30] Liberal law professors Alan Dershowitz,[31] Cass Sunstein,[32]
and Kermit Roosevelt[33] have also expressed disappointment with Roe.

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