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Roe v. Wade
Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), was a landmark decision by the U.S. Supreme Court that declared a pregnant woman is entitled to have an Abortion until the end of the first trimester of pregnancy without any interference by the state.
In a 7–2 decision on January 22, 1973, the Supreme Court struck down an 1857 Texas statute that made abortion illegal except where the life of the mother was in danger. The Court's opinion, as written by Justice harry a. blackmun, set forth guidelines for the drafting of future state legislation on the issue. In a long and detailed opinion, the Court specified the points during a woman's pregnancy when the interests of the state in the health of the mother and of the fetus emerge. Roe established the parameters of the abortion debate for decades to come.
The case involved an unmarried pregnant woman who was at the time identified only as Jane Roe in order to maintain her anonymity but who has since publicly identified herself as Norma McCorvey. McCorvey, a resident of Texas, wanted to have an abortion, but the existing state law prevented her from doing so. She filed a lawsuit in federal district court on behalf of herself and all other pregnant women. The suit sought to have the Texas abortion law declared unconstitutional as an invasion of her right to privacy as guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. She also sought to have an Injunction, or court order, issued against the statute's enforcement so that she might go forward with the abortion. A physician, James Hubert Hallford, who was being prosecuted under the statute for two abortions he had performed, also filed suit against the law, as did a childless couple, the Does (Mary Doe and john doe). A three-judge district court combined the cases of McCorvey and Hallford and dismissed the suit brought by the Does on the grounds that neither of them had violated the law and Mary Doe was not pregnant.
The district court agreed with McCorvey that the law was unconstitutionally vague and violated her right to privacy under the Ninth Amendment—which allows for the existence of rights, like that of privacy, not explicitly named in the Constitution's Bill of Rights—and the Fourteenth Amendment. It refused, however to grant the injunction allowing her to go ahead with the abortion. McCorvey appealed the denial of the injunction to the U.S. Supreme Court. The Supreme Court agreed to hear the case along with another, Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), relating to a 1968 Georgia abortion statute. The Court dismissed Hallford's case because of the pending prosecutions against him. Hallford made no allegation of any substantial and immediate threat to any federal protected right that could not be asserted in his defense against the state prosecution. Nor did he allege harassment or bad-faith prosecution by the state. Hallford's case fell clearly within the ambit of the rule announced in prior Supreme Court cases
Norma McCorvey: The Real Jane Roe
In a 1984 television interview, Norma McCorvey revealed that she is Jane Roe, the plaintiff in the most famous Abortion case in U.S. history, Roe v. Wade. In 1994, she published an autobiography, I Am Roe: My Life, Roe v. Wade, and Freedom of Choice, that puts a human face on the story of Roe. In her book, McCorvey candidly recounts the difficulties of her life, including growing up with an abusive mother, spending time in reform school as an adolescent, struggling with addictions to drugs and alcohol, and coming out as a lesbian.
McCorvey was born Norma Leah Nelson on September 22, 1947, in the bayou country of Lettesworth, Louisiana. Half Cajun and part Native American, she eventually moved with her poor, working-class family to Dallas, where she has since lived most of her life. After an unsuccessful marriage to an abusive husband, she divorced and gave up a daughter to relatives. Wrestling with drug and alcohol addictions amid the counterculture swirl of the 1960s, she later gave up two more children to Adoption, including the child she carried when she brought Roeto court.
In September 1969, while working as a carnival freak show barker, McCorvey learned that she was pregnant for the third time and returned to Dallas. Out of work, severely depressed, with no money, she decided to seek an abortion. After being told that abortion was legal in cases of rape or Incest, friends advised her to lie and say that she had been raped. However, since no police report of the fictitious rape existed, the ruse did not work. She then went to an illegal abortion clinic but found that it had been closed by the police; all that was left was an abandoned building where "dirty instruments were scattered around the room, and there was dried blood on the floor."
Eventually, McCorvey was referred to sarah weddington and Linda Coffee, young attorneys who were looking for a plaintiff to challenge the Texas abortion law. Weddington herself had been forced to go to Mexico in order to obtain an abortion during the 1960s. McCorvey agreed to participate in a lawsuit against Henry Wade, the Dallas district attorney. Although she still hoped to finish the suit in time to have an abortion, McCorvey told her attorneys, "Let's do it for other women." McCorvey chose to remain anonymous for several reasons: she feared publicity would hurt her five-year-old daughter, her parents were against abortion, and she had lied about being raped. She did not participate in court hearings in order to maintain her anonymity.
On March 3, 1970, when Roewas filed in court, McCorvey was six months pregnant. In June, at twenty-three years of age, she gave birth, and her child went up for adoption. On January 22, 1973, over two years too late to alter the course of her pregnancy, McCorvey learned that she had won her case: the Supreme Court had ruled that the Texas abortion law was unconstitutional.
In 1989, McCorvey decided to ally herself publicly with the abortion rights movement. Shortly before she participated in a large pro-choice rally in Washington, D.C., someone fired gunshots at her house and car, in one of many incidents of harassment she has had to endure since making her identity known. Frightened but undaunted, she joined the April 9 rally and made a speech on Capitol Hill before hundreds of thousands of people. McCorvey worked for a time at a family planning clinic and traveled around the United States giving speeches promoting the reproductive rights of women.
In August 1995, McCorvey announced that she had switched sides on the abortion debate. "I'm pro-life," McCorvey stated. "I think I have always been pro-life, I just didn't know it." McCorvey's reversal was attributed to her new friendship with the Reverend Philip ("Flip") Benham, national director of the militant antiabortion group Operation Rescue. The group had moved its national headquarters into an office next to the clinic where McCorvey worked. After being baptized by Benham, McCorvey declared that she would work on behalf of Operation Rescue.
McCorvey, Norma, with Andy Meisler. 1994. I Am Roe: My Life, Roe v. Wade, and Freedom of Choice. New York: Harper-Collins.
that a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the state is prosecuting him or her (Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 ; Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 ; Boyle v. Landry, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 ).
Justices hugo black and john m. harlan submitted their resignations in September 1971, shortly before the beginning of the term in which the Supreme Court was scheduled to hear the arguments on the abortion cases. The case was first heard in December 1971 by seven justices, though President richard nixon had previously announced the nominations of two new justices, lewis f. powell jr. and william h. rehnquist.
Powell was confirmed as an associate justice by the Senate on December 7, 1971, and Rehnquist was confirmed on December 15. Both were sworn in as associate justices on January 7, 1971, about a month after the Court had originally heard the arguments in Roe. Chief Justice warren e. burger chose Justice Blackmun—who had served for many years as legal counsel to the Mayo Clinic, in Rochester, Minnesota—to write the Court's original opinion, which Blackmun completed in May 1972. Blackmun's opinion would have struck down the Texas law on the grounds of vagueness, and the result of the opinion would have been that the majority of abortion statutes in the United States would have been unconstitutionally vague as well, though the Court would not have considered whether the right to an abortion was a fundamental right. However, Blackmun also recommended that the Court reconsider the case with all nine justices.
Instead of issuing Blackmun's original opinion, the Court decided to rehear the case during the following term. The Court reheard the case beginning October 11, 1972. After the rehearing, the Court, with Blackmun again writing for the majority, found the Texas abortion law to be unconstitutional. It declared that such laws "violate the due process clause, which protects against State Action the right to privacy, including [a] woman's qualified right to terminate her pregnancy." Rehnquist, a politically conservative justice, wrote a dissenting opinion.
In its opinion, the Court ruled that the right to terminate a pregnancy is part of a woman's right to privacy. At the same time, however, it declared that "[t]his right is not unqualified and must be considered against important state interests in regulation." The state, the Court argued, "has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life," interests that change in importance as the pregnancy progresses. In the first trimester, the Court said, the state has no interest in regulating the right of a woman to obtain an abortion. In making this decision, the Court pointed to evidence showing that the health of the mother is not endangered by an abortion during the first 12 weeks of pregnancy. According to that evidence, women are less likely to die from complications of an abortion conducted in the first trimester than from carrying their pregnancy to term. The Court also found that the state may require that all abortions be performed only by licensed physicians under medically safe conditions.
The Court found that the state's interest in regulating abortion and protecting a pregnant woman's health emerges in the second trimester. "[I]n promoting its interest in the health of the mother," the Court declared, "the state may regulate the abortion procedure in ways that are reasonably related to maternal health." It may, for example, impose requirements regarding the qualifications and licensing of those performing abortions; it may also regulate where abortions can be performed. Beyond these rules, the woman, in consultation with her physician, is free to decide whether to end her pregnancy.
In the third trimester, the interest of the state in "the potentiality of human life"—that is, the life of the fetus before birth—makes it possible to regulate and even prohibit abortions except when necessary to save the life or health of the mother. By this period, the fetus is determined to be viable—that is, capable of living outside the womb—and therefore entitled to protection by the state.
The Court did not accept arguments that the fetus be regarded as a person within the meaning of the Due Process Clause of the Fourteenth Amendment, which declares that no state shall "deprive any person of life, liberty, or property, without due process of law" (§ 1). "There is no medical or scientific proof that life is present from conception," wrote the Court.
[W]e need not resolve the difficult question of when life begins, when those trained in the respective fields 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.
As author of the Court's opinion, Justice Blackmun made it clear that abortion was an extraordinarily difficult issue:
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, Pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement free of emotion and predilection.
Although the opinion went into the "medical and medical-legal" history of the issue and quoted medical authorities frequently, the Court chose to decide the case on constitutional rather than medical or philosophical grounds. In this case, the crucial constitutional consideration was the right to privacy, which some would argue is as old as the Constitution. The most important precedent for the Roe decision on this issue was the 1965 Supreme Court case griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510, which clearly set forth a constitutional right to privacy—in this instance, a married couple's right to privacy when deciding whether or not to use contraceptives. Roe was in fact part of a gradual expansion of the right to privacy during the 1960s and 1970s, to include not only a right to freedom from physical searches and seizures, for example, but also a right to make individual decisions free of coercion, whether physical or psychological, especially in matters regarding the family and Reproduction.
In his dissent in Roe, Justice Rehnquist differed with the majority on a number of points. For one thing, McCorvey had given birth in 1970 and had given her child up for Adoption. He argued that because McCorvey was no longer in the first term of her pregnancy, indeed was no longer pregnant, when her case came before the Supreme Court, the case had become hypothetical rather than actual and therefore outside the jurisdiction of the Court. Rehnquist also argued that the regulation of abortion should be left to the states and that the right of privacy had nothing to do with the case. "I have difficulty in concluding, as the Court does, that the right of 'privacy' is involved in this case," he wrote. "The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment." Moreover, in Rehnquist's view, the Texas abortion law met the test of having "a rational relation to a valid state objective." Rehnquist's fellow dissenter in Roe, Justice byron r. white, called the decisions in Doe and Roe "an example of raw judicial power" and "an improvident and extravagant exercise of the power of judicial review" (Doe, 410 U.S. 179 at 221, 93 S. Ct. 762).
The Roe decision has largely been perceived as a victory for the abortion reform and women's rights movements and a defeat for antiabortion forces, but in many ways it was a compromise between the two sides. While antiabortion forces were unhappy with the establishment of a right to abortion for women in the first trimester of pregnancy, pro-abortion groups were displeased with the limits on abortion allowed in the last two trimesters of pregnancy. The Court also compromised in its decision as to when life begins and who is to be defined as a person with full rights under the Constitution. It did not agree with the pro-abortion movement, which declared that life does not begin until birth, or with the antiabortion movement, which maintained that life begins at conception. Instead, it chose to define the rights of the fetus as emerging when it reaches the stage of viability, when it can survive independently outside the womb. In making this decision, some have argued, the Court made personhood subject to change, particularly as science has moved the time of viability further back.
Feminists and women's rights advocates saw Roe as a vindication of women's reproductive rights and a step toward greater equality between the sexes. Such equality, they argued, can happen only when women have the ability to control reproduction. Others, opposed to the decision in Roe, believed that the Supreme Court had overstepped its bounds by effectively making new social policy, a task they felt was better left to elected members of state legislatures. Still others felt that the Court had violated the sanctity of human life by permitting abortion. In any case, Roe has been a far-reaching decision, affecting many spheres of U.S. life, including medicine, religion, and the family.
In the decades following Roe, antiabortion groups mounted continual campaigns to repeal the decision. Despite these challenges, the Supreme Court repeatedly supported the essential elements of that decision, particularly as regards the right to privacy.
Baker, Hunter. 2001. "Storming the Gates of a Massive Cultural Investment: Reconsidering Roe in Light of Its Flawed Foundation and Undesirable Consequences." Regent University Law Review 14.
Butler, J. Douglas, and David F. Walbert, eds. 1992. Abortion, Medicine, and the Law. 4th ed. New York: Facts on File.
Faux, Marian. 2000. Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal. New York: Cooper Square Press.
Gonzalez, Jose L. 2001. "The Legitimization of Fetal Tissue Transplantation Research Under Roe v. Wade." Creighton Law Review 34.
Lucas, Ray. 2003. "Forgotten Supreme Court Abortion Cases: Drs. Hawker and Herwitz in the Dock and Defrocked." Pepperdine Law Review. 641.
McCorvey, Norma. 1994. I Am Roe: My Life, Roe v. Wade, and Freedom of Choice. New York: HarperCollins.
Payment, Simone. 2003. Roe v. Wade: The Right to Choose. New York: Rosen.
Rubin, Eva R. 1987. Abortion, Politics and the Courts: Roe v. Wade and Its Aftermath. New York: Greenwood.
Simon, James F. 1995. The Center Holds: The Power Struggle Inside the Rehnquist Court. New York: Simon & Schuster.
Roe v. Wade
Briefs to the U.S. Supreme Court
HOW TO USE MILESTONES IN THE LAW
This section allows readers to investigate the facts, the arguments, and the legal reasoning that produced the Roe v. Wade decision. It also sheds light on the roles and required skills of attorneys and judges in resolving disputes.
As you read this section, you may wish to consider the following issues:
- How did the appellant's description of the issues before the Court, or questions presented, differ from the appellee's descriptions?
- How did the courts and the two parties differ in describing the meaning of particular prior cases to the present case?
- How did the holdings (conclusions of law) of the district court differ from those of the Supreme Court?
- On what points in the Supreme Court's majority opinion do the concurring and dissenting justices agree and disagree?
- How would you decide this case?
THIS CASE IN HISTORY
Roe versus Wade may be the most well known and the most controversial decision of the modern Supreme Court. With this decision, the Court recognized a woman's right to obtain an abortion under certain circumstances. Virtually from the moment it was handed down, Roe v. Wade has divided lawyers, politicians, and the public into those who support the decision and those who would like it overturned, either by the Supreme Court itself or by act of the legislature. A judge's or politician's position on the subject of abortion has played a major role in countless appointments and elections. After the decision and for the rest of his life, the opinion brought its author, Justice Harry Blackmun, an unending stream of mail both praising and vilifying him for the decision.