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December 13
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1971
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October 11
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1972
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January 22
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1973
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Jane Roe , et al v Henry Wade , District Attorney of Dallas County
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93 S Ct 705 35 L Ed 2d 147 1973 US LEXIS 159
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410
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113
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''Judgment for plaintiffs, injunction denied'', 314 F Supp 1217 (ND Tex 1970) ''probable jurisdiction noted'', 402 US 941 (1971) ''set for reargument'', 408 US 919 (1972)
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''Rehearing denied'', 410 US 959 (1973)
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Texas law making it a crime to assist a woman to get an abortion violated her due process rights US District Court For The Northern District Of Texas affirmed in part, reversed in part
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http://wwwoyezorg/cases/1970-1979/1971/1971_70_18/argument/
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1972-1975
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Blackmun
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Burger, Douglas, Brennan, Stewart, Marshall, Powell
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Burger
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Douglas
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Stewart
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White
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Rehnquist
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Rehnquist
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US Const Amend XIV Tex Code Crim Proc arts 1191–94, 1196
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'', .
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 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.
''Roe'' critics say the ruling is illegitimate because it strays from the text and history of the Constitution, and imposes abortion policy on the states and Congress contrary to American principles of
Federalism and
Democracy . Another criticism of ''Roe'' (though not one made by the dissenters in the case) is that the majority opinion failed to recognize the
Personhood of fetal
Human Life , either beginning at conception or later. Supporters describe ''Roe'' as vital to preservation of
Women's Equality , personal freedom, and privacy.
In 1970, attorneys
Linda Coffee and
Sarah Weddington filed suit 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. 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 ). Retrieved
2007-01-30
''Roe v. Wade'' ultimately reached the U.S. Supreme Court on
wrote the Court’s 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
Antibiotic s 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, "
{Link without Title} 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 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
Trimester s 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").
An aspect of the decision that attracted comparatively little attention was the Court's disposition of the issues of .
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 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.
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.
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.
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."
Some in the
March For Life .
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
In response to ''Roe v. Wade'', most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring .
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.Thomson, Judith. "
A Defense Of Abortion ," in ''Philosophy and Public Affairs'', vol. 1, no. 1 (1971), pp. 47–66.
''Roe'' remains controversial;
Polls show continued division about its landmark rulings, and about the decision as a whole.
Internal Supreme Court memoranda surfaced in the ), via the "Abortion Law Homepage". Retrieved
2007-01-23 .
The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the Court's decision.Bush, George Walker. Quoted in ''Boston Globe'', p. A12 (). Retrieved
2007-02-02 .
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.Cohen, Richard.
"Support Choice, Not Roe", ''Washington Post'', (.
. Ely added: "What is frightening about ''Roe'' is 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 nation’s governmental structure."
Similarly, Harvard law professor .
. 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 . and
. have also expressed disappointment with ''Roe''.
See Also: Abortion in the United States#Public opinion
l1=U.S. Polls on Abortion
An April 2006
Harris poll on ''Roe v. Wade'', asked the following question:
In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?Harris Interactive, (.
In reply, 49 percent of respondents indicated favor while 47 percent indicated opposition; the Harris organization concluded from this poll that "49 percent now support Roe vs. Wade." Critics assert that the media often misreport polls on ''Roe v. Wade''.Press Release from National Right to Life Committee titled “
Associated Press and Other Media Distort ''Roe v. Wade'' and Public Opinion on Abortion Policy ” (
2004 -
11-29 ). Retrieved
2007-01-12 . The Harris poll question dealt with first trimester abortions, whereas ''Roe'' decided that a woman can get a pre-viability abortion for any reason, without regard to any concern her doctor may have about protecting the fetus, well beyond the first trimester. The Harris poll has tracked public opinion about ''Roe'' since 1973:
Harris Interactive.
'U.S. Attitudes Toward Roe v. Wade". ''The Wall Street Journal Online'', (
2006-05-04 ). Retrieved
2007-02-03 .
The Harris organization says that support for ''Roe'' is at its "lowest level ever," though the situation in 2006 was not appreciably different from in 1985.
'' cover page from January 23, 1973. President
Lyndon B. Johnson died the same day as the ''Roe'' decision.]]
The ''Roe'' decision was opposed by Presidents ): "The President did not comment directly on the decision."
Opposition to ''Roe'' on the bench grew when ). Retrieved
2007-01-23 .
In addition to White and Rehnquist, Reagan appointee . 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) ''.
In a 5-4 decision in 1989's ''. In this case, the Court upheld several abortion restrictions, and modified the ''Roe'' trimester framework.
In concurring opinions, O'Connor refused to reconsider ''Roe'', and Justice
Antonin Scalia criticized the Court and O'Connor for not overruling ''Roe''. Blackmun — author of the ''Roe'' opinion — stated in his dissent that White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their
Plurality opinion "foments disregard for the law." White had recently opined that Blackmun was "warped."
With the retirement of ''Roe'' supporters ). Retrieved
2007-01-23 .
According to . 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 is not a liberty protected by the Constitution, because the Constitution does not 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."
During the 1990s, . 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. Kennedy described the second trimester abortion procedure that Nebraska was ''not'' seeking to prohibit: "The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off." Kennedy wrote that since this dilation and evacuation procedure remained available in Nebraska, the state was free to ban the other procedure known as partial birth abortion.
The remaining three dissenters in ''Stenberg'' — Thomas, Scalia, and Rehnquist — disagreed again with ''Roe'': "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."
In 2003, Congress passed the
Partial-Birth Abortion Ban Act , which led to a lawsuit in the case of ''
Gonzales V. Carhart ''. The Court had previously ruled in ''
Stenberg V. Carhart '' that a state's ban on partial birth abortion was unconstitutional because such a ban would not allow for the health of the mother. The membership of the Court changed after ''Stenberg'', with
John Roberts and
Samuel Alito replacing Rehnquist and O'Connor, respectively. Further, the ban at issue in ''Gonzales v. Carhart'' was a federal statute, rather than a relatively vague state statute as in the ''Stenberg'' case.
On
April 18 ,
2007 , the Supreme Court handed down a 5 to 4 decision upholding the constitutionality of the Partial-Birth Abortion Ban Act. Kennedy wrote for the five-justice majority that Congress was within its power to generally ban the procedure, although the Court left the door open for as-applied challenges. Kennedy's opinion did not reach the question whether the Court's prior decisions in ''Roe v. Wade'', ''Planned Parenthood v. Casey'', and ''Stenberg v. Carhart'' were valid, and instead the Court said that the challenged statute is consistent with those prior decisions whether or not those prior decisions were valid.
Joining the majority were Chief Justice
John Roberts , Scalia, Thomas, and Alito. Ginsburg and the other three justices dissented, contending that the ruling ignored Supreme Court abortion precedent, and also offering an equality-based justification for that abortion precedent. Thomas filed a concurring opinion, joined by Scalia, contending that the Court's prior decisions in ''Roe v. Wade'' and ''Planned Parenthood v. Casey'' should be reversed, and also noting that the Partial-Birth Abortion Ban Act may exceed the powers of Congress under the
Commerce Clause .
Norma McCorvey became a member of the pro-life movement in 1995; she now supports making abortion illegal. In 1998, she testified to Congress:
It was my pseudonym, Jane Roe, which had been used to create the "right" to abortion out of legal thin air. But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15, 20 years later and say, "Thank you for allowing me to have my five or six abortions. Without you, it wouldn't have been possible." Sarah never mentioned women using abortions as a form of birth control. We talked about truly desperate and needy women, not women already wearing maternity clothes.McCorvey, Norma. Testimony to the Senate Subcommittee on the Constitution, Federalism and Property Rights (). Retrieved 2007-01-27
As a party to the original litigation, she sought to reopen the case in 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.
On ). Retrieved
2007-03-26 .
