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! bgcolor="6699FF" | ''Roe v. Wade'' |- | align="center" | Supreme Court of the United States |- ! bgcolor="6699FF" | Argued December 13, 1971 Reargued October 11, 1972 Decided January 22, 1973 |- | |- ! bgcolor="6699FF" | 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. |- ! bgcolor="6699FF" | Court membership |- | |- ! bgcolor="6699FF" | Case opinions |- | |- ! bgcolor="6699FF" | 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 most laws against Abortion violate a Constitutional Right to privacy, overturning all State laws outlawing or restricting abortion. It is one of the most controversial decisions in U.S. Supreme Court history. The decision in ''Roe v. Wade'' prompted a decades-long national debate over whether terminating pregnancies should be legal (or more precisely, whether a state can deem the act ''illegal'' if it chooses to do so); 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 in history, reshaping national politics, dividing the nation into " Pro-choice " and " Pro-life " camps, and inspiring Grassroots activism. Opposition to ''Roe'' comes primarily from those who viewed the Court's decision as illegitimate for straying too far from the text and history of the Constitution, and those possessing beliefs about the Personhood of Fetal Human life. Support for ''Roe'' comes from those who view the decision as necessary to preserve Women's Equality and personal freedom, and those who believe in the privacy of individual over collective rights, although the opposition to ''Roe'' often reference the privacy of the individual when referring to the unborn child. History of case The case originated in Texas in March 1970 at the behest of Linda Coffee and Sarah Weddington, both young attorneys from central Texas. "Jane Roe and Richard Roe", a standard alias for anonymous plaintiffs, was used to protect Norma McCorvey's identity. After the initial lawsuit was filed, the case was expanded to include several other parties, 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. At the time of the case, McCorvey claimed that she had become pregnant by rape. She has claimed and rescinded her support for the Supreme Court decision. During the case, Weddington kept private the fact that McCorvey had been raped. The law stated that having or trying to perform an abortion is a crime, except by "medical advice for the purpose of saving the life of the mother." The suit claimed that the laws were unconstitutionally vague and omitted the rights guaranteed to pregnant women by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. In Dallas County, Texas the district attorney Henry Wade was the defendant in the case. A three-judge district court ruled for "Jane Roe", but refused to grant against the enforcement of the laws. Many advocates of liberalizing abortion laws saw promise in this line of cases, as abortion was widely proscribed by state laws at that time. Both "Jane Roe" and defendant Wade appealed to the Supreme Court and the case was argued there by Weddington and Texas assistant attorney general Jay Floyd on December 13, 1971. Burger proposed that the case be put over for reargument, and the justices, unimpressed with the first oral argument in the case, underwhelmed by Blackmun's opinion, and wishing that new Justices William Rehnquist and Lewis F. Powell, Jr. participate, voted to reargue the case on October 11, 1972, at the behest of Chief Justice Burger. At the reargument, Weddington again represented Roe, while district attorney Wade was represented by Texas assistant attorney general Robert C. Flowers. Douglas threatened to write a dissent from 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 Supreme Court's decision The court issued its decision on January 22 , 1973 , with a 7 to 2 majority voting to strike down Texas' abortion laws. 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 Opinion s (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. Dissenting opinions Associate Justices Byron R. White and William H. Rehnquist wrote blistering dissenting opinions in this case. "I find nothing in the language or history of the Constitution to support the Court's judgment," wrote Justice White. "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. "The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Regardless of whether I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs." Justice Rehnquist elaborated on this, saying: "The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy . . . the Court uses her complaint against the Texas statute as a fulcrum for deciding that States may {Link without Title} impose virtually no restrictions on medical abortions performed during the first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the longstanding admonition that it should never "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied . . . the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one. "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. Conn. Stat., Tit. 22, §§ 14, 16. 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.(1) While many States have amended or updated [p176 their laws, 21 of the laws on the books in 1868 remain in effect today.(2) Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 [p177] and "has remained substantially unchanged to the present time." Ante, at 119. "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. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter." Controversy over ''Roe'' At first most of the protest over the ''Roe'' decision came from Catholic sources, who had been opposing abortion and contraception for over a century. They were later joined by many Protestants. Eventually there were letter-writing campaigns to the Supreme Court. The In response to ''Roe v. Wade'', several states enacted laws limiting 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 most very late term abortions utilizing Intact Dilation And Extraction procedures (colloquially referred to as Partial-birth Abortion s), laws requiring waiting periods before abortion, laws mandating that women read certain types of literature before choosing an abortion, and many more. The Congress in the 1970s passed the Hyde Amendment , barring federal funding for abortion. Abortions are currently prohibited in overseas military hospitals, and the United States is barred from aiding international Family Planning organizations that might 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." Supreme Court Justice Ruth Bader Ginsburg , and other liberals such as Massachusetts congressman John F. Tierney and editorial writer Michael Kinsley , have criticized the court's ruling in ''Roe v. Wade'' as terminating a nascent democratic movement to liberalize abortion laws which they contend might have built a more durable consensus in support of abortion rights. Some academics supported the decision, including Judith Jarvis Thomson, who before the decision had offered an influential defense of abortion in ''A Defense of Abortion'', printed in ''Philosophy and Public Affairs'', vol. 1, no. 1 (1971), pp. 47-66. Several groups have also emerged dedicated to ''Roe'''s defense. Many Americans vigorously support abortion rights as necessary to women's equality and personal liberty. Most prominent is the National Abortion Rights Action League , as well as EMILY's List , a pro-choice Political Action Committee . During his lifetime, Harry Blackmun , author of the ''Roe'' opinion, also was a determined advocate for the decision, making speeches across the country praising Roe as essential to women's equality and reproductive freedom. During the 1980s and 1990s, pressure grew from these groups for the Democratic Party to take a unified stand in favor of ''Roe''. 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 and violating the liberty 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 personal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.'' 'Arbitrary' and 'Legislative' Internal Supreme Court memoranda that surfaced in the '' (1992). ''Roe's'' role in subsequent decisions and politics 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 Warren Burger suggested that ''Roe'' be "reexamined," and the associate justice who filled Burger's place on the Court, Justice Antonin Scalia , is 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 Lewis Powell, Anthony M. Kennedy , was seen as a potential anti-''Roe'' vote. 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'', 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 Antonin 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 Harry Blackmun , by now a passionate defender of his ''Roe'' opinion, dissented angrily, arguing that the plurality opinion signaled doom for the abortion right. Planned Parenthood v. Casey 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''. For example, during the confirmation hearings of David Souter , NOW president Molly Yard declared that confirming Souter would mean "ending freedom for women in this country . . . Women will die" a protest was subsequently called.[http://www.yalefedsoc.org/archives/2005/10/stop_souter.html The Supreme Court, however, in '' Planned Parenthood V. Casey '', 505 U.S. 833 (1992), reexamined ''Roe'' and upheld its validity by a 5-4 vote. A plurality of Reagan-Bush appointees, O'Connor , Kennedy , and Souter , reaffirmed that the Constitution protects a right of abortion. Rehnquist and Scalia filed biting dissenting opinions. Stenberg v. Carhart During the 1990s, attempts were made at the state level to ban late-term 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. Congressional ban on partial birth abortions Subsequent to Stenberg, Congress -79- passed a law banning Partial-birth Abortions , which is currently in litigation. "Jane Roe" switches sides In an interesting turn of events, "Jane Roe," whose real name is , 2003 , Judge David Godbey ruled that the motion was not made within a "reasonable time." On February 22 , 2005 , the Supreme Court refused to grant a Writ Of Certiorari , ending McCorvey's appeal. State abortion bans seeking to overturn ''Roe v. Wade'' South Dakota See Also: South Dakota reproductive rights controversy On February 24, 2006, the South Dakota State Legislature passed a bill that was signed into law by Governor Mike Rounds on March 6, 2006. The law purports to make performing all abortions a felony, including those for pregnancies resulting from rape and incest. The bill makes no exception for a woman's health but does include an exception to prevent the loss of the woman's life. According to law makers, doctors who perform abortions for either health or life reasons will not be prosecuted. Its sponsors hope that a court challenge of the law will provide a vehicle that will allow the Supreme Court to reconsider and overturn Roe. This bill was passed without a Referendum . Mississippi Mississippi’s House Public Health Committee voted on February 27, 2006, to approve a ban on abortion similar to South Dakota’s. The Mississippi bill could be voted on in the full State House the following week, and if approved, move on to the State Senate. Governor Haley Barbour told reporters that he would probably sign the bill into law if it makes it to his desk, though said he would prefer it to have an exception for rape and incest. Mississippi already had some of the strictest state abortion laws, requiring a 24-hour waiting period and counseling for all abortions, and the notification of both parents for minors who seek the procedure. References Secondary sources
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