Roe v. Wade

SCOTUSCase
Litigants=Roe v. Wade
ArgueDate=December 9
ArgueYear=1971
ReargueDate=October 11
ReargueYear=1972
DecideDate=January 22
DecideYear=1973
FullName=Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County
Citation=93 S. Ct. 705; 35 L. Ed. 2d 147; [http://www.lexis.com/research/slft?cite=3139373320552E532E204C455849532020313539&keyenum=15451&keytnum=0 1973 U.S. LEXIS 159]
USVol=410
USPage=113
Prior="Judgment for plaintiffs, injunction denied", 314 F. Supp. 1217 (N.D. Tex. 1970); "probable jurisdiction noted", 402 U.S. 941 (1971); "set for reargument", 408 U.S. 919 (1972)
Subsequent="Rehearing denied", 410 U.S. 959 (1973)
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.
OralArgument=http://www.oyez.org/cases/1970-1979/1971/1971_70_18/argument/
SCOTUS=1972-1975
Majority=Blackmun
JoinMajority=Burger, Douglas, Brennan, Stewart, Marshall, Powell
Concurrence=Burger
Concurrence2=Douglas
Concurrence3=Stewart
Dissent=White
JoinDissent=Rehnquist
Dissent2=Rehnquist
LawsApplied=U.S. Const. Amend. XIV; Tex. Code Crim. Proc. arts. 1191–94, 1196

"Roe v. Wade", 410 U.S. 113 (1973) is a controversial United States Supreme Court case that resulted in a landmark decision regarding abortion."Roe v. Wade", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=410&page=113 410 U.S. 113] (1973). Findlaw.com. Retrieved 2007-01-26] 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."Doe v. Bolton", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=410&invol=179 410 U.S. 179] (1973). Findlaw.com. Retrieved 2007-01-26.]

"Roe v. Wade" centrally held that a mother may abort her pregnancy for any reason, up until the "point at which the fetus becomes ‘viable.’" The Court defined viable as being potentially able to live outside the mother's womb, albeit with artificial aid. Viability usually occurs 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". These rulings affected laws in 46 states. [William Mears and Bob Franken, [http://www.cnn.com/2003/LAW/01/21/roevwade.overview/ “30 years after ruling, ambiguity, anxiety surround abortion debate”] , CNN (2003-01-22): “In all, the Roe and Doe rulings impacted laws in 46 states.”]

The "Roe v. Wade" decision prompted national debate that continues today. Debated subjects include whether and to what extent abortion should be legal, who should decide the legality of abortion, 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 the 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. [Richard Ostling. [http://www.texnews.com/1998/texas/roe1019.html "A second religious conversion for 'Jane Roe' of Roe vs. Wade"] , "Associated Press" (1998-10-19). McCorvey recanted the rape claim years after the "Roe" decision.] 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 declined to grant an injunction against the enforcement of the laws barring abortion."Roe v. Wade", [http://law.jrank.org/pages/11624/Opinion-U-S-District-Court-N-D-Texas-June-17-1970-PER-CURIAM.html 314 F. Supp. 1217] (1970): "On the merits, plaintiffs argue as their principal contention that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couple of their rights secured by the Ninth Amendment to choose whether to have children. We agree." Retrieved 2008-09-04.] 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. [O'Connor, Karen. Testimony before U.S. Senate Judiciary Committee, " [http://judiciary.senate.gov/testimony.cfm?id=1553&wit_id=4399 The Consequences of Roe v. Wade and Doe v. Bolton] " (2005-06-23). Retrieved 2007-01-30]

"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. [Schwartz, Bernard. " [http://books.google.com/books?vid=ISBN0195053176&id=gUMrsFFZtrQC&pg=PA103&lpg=PA103&ots=QNkrOUc9-w&dq=%22under+constitutional+attack+here+are+abortion+laws+of+the+state+of+texas%22&num=100&sig=5RHH8d8rM4Jae98JFRUSiaoelyw The Unpublished Opinions of the Burger Court] ", page 103 (1988 Oxford University Press), via Google Books. Retrieved 2007-01-26] 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. [ Garrow David. " [http://books.google.com/books?vid=ISBN0520213025&id=DImjEIIZTgsC&pg=RA1-PA556&lpg=RA1-PA556&ots=Ng2D1dc3NC&dq=%22roe+v.+Wade%22+and+%22reargument%22+and+douglas&sig=bs7xA5pB9jgwsOyOAW7X9idJ-v0 Liberty and Sexuality: The Right to Privacy and the Making of Roe V. Wade] " (Univ. of Calif. 1998), p. 556. Retrieved 2007-01-30]

upreme Court decision

".

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 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. [Cole, George; Frankowski, Stanislaw. " [http://books.google.com/books?id=-ujuOMTNAQAC&pg=PA20&dq=quickening+and+abortion+and+states&ei=u4_7R7P4J5XOywSnzu3JBA&sig=_94hQXPrYdnIuox3681ca1grp8g Abortion and protection of the human fetus : legal problems in a cross-cultural perspective] ", page 20 (1987): "By 1900 every state in the Union had an anti-abortion prohibition." Via Google Books. Retrieved (2008-04-08).] 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 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. 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. However, the Court did not 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, 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 ends.

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").

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. [Abernathy, M. et al., " [http://books.google.com/books?vid=ISBN0872498549&id=tHhlYpWokFIC&pg=RA1-PA4&lpg=RA1-PA4&ots=OeQSTLp91C&dq=standing+and+mootness+and+%22roe+v.+wade%22&num=100&sig=gfDTMq-LyUVI-lg8tNreUQFjX6c Civil Liberties Under the Constitution] " (U. South Carolina 1993), page 4. Retrieved 2007-02-04.]

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. ["Southern Pacific v. Interstate Commerce Commission", [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=219&invol=498 219 U.S. 498] (1911). Findlaw.com. Retrieved 2007-01-26] 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."

Dissents

Associate Justices Byron R. White and William H. Rehnquist wrote emphatic dissenting opinions in this case. Justice White wrote:

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:

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."

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 (sometimes referred to as "fertilization"), and thus the embryo and the fetus 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. [Reagan, Ronald. " [http://www.worldcatlibraries.org/oclc/10456929?tab=holdings Abortion and the Conscience of the Nation] ", (Nelson 1984): "If you don't know whether a body is alive or dead, you would never bury it. I think this consideration itself should be enough for all of us to insist on protecting the unborn." Retrieved 2007-01-26] And since it is a possibility that life begins at conception it is unconstitutional to take away a fetus' rights. 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.Rubin, Allisa. " [http://pqasb.pqarchiver.com/latimes/access/55304043.html?dids=55304043:55304043&FMT=ABS&FMTS=ABS:FT&type=current&date=Jun+18%2C+2000&author=ALISSA+J.+RUBIN&pub=Los+Angeles&edition=&startpage=1&desc=Americans+Narrowing+Support+for+Abortion Americans Narrowing Support for Abortion] ," "Los Angeles Times" (2000-06-18). Retrieved 2007-02-02. ("In The Times Poll, 65% of respondents said abortions in the second trimester should not be legal. Female respondents feel more strongly about the issue: 72% believe second-trimester abortions should be illegal, compared with 58% of men.")] 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.

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. [" [http://books.google.com/books?vid=ISBN0814799183&id=Us-277i9ZJYC&pg=PP1&lpg=PP1&ots=P3h5hDqS1u&dq=%22what+roe+v.+wade+should+have+said%22&num=100&sig=gJ9jX7_d2MOXAkvWRgkwiDYImPs What Roe v. Wade Should Have Said; The Nation’s Top Legal Experts Rewrite America’s Most Controversial decision] ", Jack Balkin Ed. (NYU Press 2005). Retrieved 2007-01-26]

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. [Guttmacher Institute, " [http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf State Policies in Brief, An Overview of Abortion Laws (PDF)] ", published 2007-01-01. Retrieved 2007-01-26.] Congress in 1976 passed the Hyde Amendment, barring federal funding of abortions for poor women through the Medicaid program. 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). ["Harris v. McRae", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=448&invol=297 448 U.S. 297] (1980). Findlaw.com. Retrieved 2007-01-26.]

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. The late 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 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." [Woodward, Bob. " [http://swiss.csail.mit.edu/~rauch/nvp/roe/woodward.html The Abortion Papers] ", "Washington Post" (1989-01-22). Retrieved 2007-02-03.] Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to the state legislatures, though he joined Blackmun's decision. [Kmiec, Douglas. " [http://members.aol.com/abtrbng2/roememos.txt Testimony Before Subcommittee on the Constitution, Judiciary Committee, U.S. House of Representatives] " (1996-04-22), 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 (2000-01-22). "Roe v. Wade was wrong because it 'usurped the power of the legislatures,' Bush said. 'I felt like it was a case where the court took the place of what legislatures should do in America,' he said. But Bush refused to say how he felt each state should act. Instead, he said that when it comes to legalizing abortion, 'it should be up to each legislature.'" Retrieved 2007-02-02.] 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. [Stith, Irene. " [http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/95-1101_SPR.pdf Abortion Procedures, CRS Report for Congress (PDF)] " (1997-11-17). Retrieved 2007-02-02.]

Critiques

William Saletan has written that "Blackmun’s [Supreme Court] papers vindicate every indictment of "Roe": invention, overreach, arbitrariness, textual indifference." [Saletan, William. [http://www.legalaffairs.org/issues/May-June-2005/feature_saleton_mayjun05.msp "Unbecoming Justice Blackmun",] "Legal Affairs", May/June 2005. Retrieved 2007-01-23. Saletan is a self-described liberal. See Saletan, William. [http://www.slate.com/id/2170311/ "Rights and Wrongs: Liberals, progressives, and biotechnology"] , "Slate" (2007-07-13).] 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." [Ely, John Hart. " [http://www.timothypcarney.com/wages-wolf.htm The Wages of Crying Wolf] ", "Yale Law Journal" 1973. Retrieved 2007-01-23. Professor Ely "supported the availability of abortion as a matter of policy." See Liptak, Adam. [http://query.nytimes.com/gst/fullpage.html?res=9502E2DF1131F934A15753C1A9659C8B63 "John Hart Ely, a Constitutional Scholar, Is Dead at 64"] , "New York Times" (2003-10-27). Ely is generally regarded as having been a “liberal constitutional scholar.” Perry, Michael. " [http://books.google.com/books?id=ka8ajkxQWxkC&pg=PA151&lpg=PA151&dq=%22john+hart+ely%22+and+%22liberal+constitutional%22&source=web&ots=m42MG-AWf7&sig=zU_X7SF9Yt2AtyyUJLcxFSJARdc We the People: The Fourteenth Amendment and the Supreme Court] " (1999) via Google books.] 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 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." [Tribe, Laurence. "The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law", 87 "Harv. L. Rev." 1, 7 (1973). Quoted in Morgan, " [http://links.jstor.org/sici?sici=0026-2234(197908)77%3A7%3C1724%3ARVWATL%3E2.0.CO%3B2-6 Roe v. Wade and the Lesson of the Pre-Roe Case Law] ", "Michigan Law Review", Vol. 77, No. 7, Symposium on the Law and Politics of Abortion (Aug., 1979), p. 1724, via JSTOR (see bottom of first page of Morgan's article). Retrieved 2007-01-26.] Watergate prosecutor Archibald Cox wrote: " [Roe’s] 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." [Cox, Archibald. " [http://books.google.com/books?vid=OCLC02023076&id=ZrYdAAAAMAAJ&q=%22failure+to+confront+the+issue+in+principled+terms+leaves+the+opinion+to+read+like+a+set+of+hospital+rules%22&dq=%22failure+to+confront+the+issue+in+principled+terms+leaves+the+opinion+to+read+like+a+set+of+hospital+rules%22&pgis=1 The Role of the Supreme Court in American Government] ", 113–114 (Oxford U. Press 1976), via Google Books. Retrieved 2007-01-26. Stuart Taylor has noted that, "Roe v. Wade was sort of conjured up out of very general phrases and was recorded, even by most liberal scholars like Archibald Cox at the time, John Harvey Link - just to name two Harvard scholars - as kind of made-up constitutional law.” See Stuart Taylor Jr., [http://www.pbs.org/newshour/bb/law/july-dec00/scotus_7-13.html Online News Hour] , "PBS" 2000-07-13.]

Ruth Bader Ginsburg has criticized the Court's ruling in "Roe v. Wade" for terminating a nascent democratic movement to liberalize abortion law. [Ginsburg, Ruth. " [http://www.blogdenovo.org/archives/63_N_C_L_Rev_375.doc Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade] ", 63 "North Carolina Law Review" 375 (1985): "The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." Retrieved 2007-01-23.] Likewise, legal affairs editor Jeffrey Rosen [ Rosen, Jeffrey. " [http://www.tnr.com/doc.mhtml?i=20030224&s=rosen022403 Why We’d Be Better off Without Roe: Worst Choice] ", "The New Republic" (2003-02-24): “In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized "Roe" on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.” Retrieved 2007-01-23.] and Michael Kinsley [Kinsley, Michael. " [http://www.holysmoke.org/sdhok/abo009.htm Bad choice] ", "The New Republic" (2004-06-13): "Against all odds (and, I'm afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court.... [A] freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami." Retrieved 2007-01-23.] say that a democratic movement would have been the correct way to build a more durable consensus in support of abortion rights.

Public opinion

An October 2007 Harris poll on "Roe v. Wade", asked the following question:

In reply, 56 percent of respondents indicated favor while 40 percent indicated opposition. The Harris organization concluded from this poll that "56 percent now favors the U.S. Supreme Court decision". Pro-life activists have disputed whether the Harris poll question is a valid measure of public opinion about Roe's overall decision, because the question focuses only on the first three months of pregnancy. [Franz, Wanda. [http://www.nrlc.org/news/2007/NRL06/PresidentColumn.html "The Continuing Confusion About Roe v. Wade"] , "NRL News" (June 2007).] [Adamek, Raymond. [http://links.jstor.org/sici?sici=0033-362X%28197823%2942%3A3%3C411%3AAP%3E2.0.CO%3B2-5&size=LARGE&origin=JSTOR-enlargePage "Abortion Polls"] , "Public Opinion Quarterly", Vol. 42, No. 3 (Autumn, 1978), pp. 411-413. Dr. Adamek is pro-life. [http://www.prolifetechnology.org/proceedings/2004/bio/adamek.html Dr Raymond J Adamek, PhD] "Pro-Life Science and Technology Symposium."] The Harris poll has tracked public opinion about "Roe" since 1973: [Harris Interactive. [http://online.wsj.com/public/resources/documents/info-harris0503.html 'U.S. Attitudes Toward Roe v. Wade".] "The Wall Street Journal Online", (2006-05-04). Retrieved 2007-02-03.]

Role in subsequent decisions and politics

The "Roe" decision was opposed by Presidents Gerald Ford, [Ford, Gerald. [http://www.presidency.ucsb.edu/ws/print.php?pid=6320 Letter to the Archbishop of Cincinnati] , published online by The American Presidency Project. Santa Barbara, CA: University of California (1976-09-10).] Ronald Reagan, [Reagan, Ronald. (Nelson 1984).] and George W. Bush. [Bush, George Walker. " [http://graphics.boston.com/news/politics/campaign2000/news/Bush_tells_addicts_he_can_identify+.shtml Bush Tells Addicts He Can Identify] ," "Boston Globe", p. A12 (2000-01-22).] Initially, George H.W. Bush supported Roe Vs. Wade during his campaign for President of the United States in 1980, but changed his view by the time he ran for and was elected president in 1988 [Bush, George Herbert Walker. [http://www.presidency.ucsb.edu/ws/index.php?pid=16617 Remarks to Participants in the March for Life Rally] (1989-01-23).]

It was supported by President Bill Clinton. [Clinton, Bill. "My Life", page 229 (Knopf 2004).] Jimmy Carter initially opposed most legal abortion but eventually supported some abortion rights [Carter, James Earl. "Larry King Live", CNN, [http://transcripts.cnn.com/TRANSCRIPTS/0602/01/lkl.02.html Interview With Jimmy Carter] (2006-02-01). Also see Bourne, Peter, "Jimmy Carter: A Comprehensive Biography from Plains to Postpresidency": "Early in his term as governor, Carter had strongly supported family planning programs including abortion in order ro save the life of a mother, birth defects, or in other extreme circumstances. Years later, he had written the foreword to a book, Women in Need, that favored a woman's right to abortion. He had given private encouragement to the plaintiffs in a lawsuit, Doe v. Bolton, filed against the state of Georgia to overturn its archaic abortion laws."]

Richard Nixon was believed to oppose abortion but did not publicly comment about it. [Reeves, Richard. " [http://books.google.com/books?id=AdBdPvGxdaIC&pg=PA563&ots=Madx6Gi5dp&dq=%22Nixon%22+and+roe+and+%22oval+office%22&sig=pk1CjRjNuGga9QEiNRWH003kK20 President Nixon: Alone in the White House] ", page 563 (2001): "The President did not comment directly on the decision."]

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 have 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." [Reagan, Ronald. " [http://www.reagan.utexas.edu/archives/speeches/1986/62386e.htm Interview With Eleanor Clift, Jack Nelson, and Joel Havemann of the Los Angeles Times] " (1986-06-23). Retrieved 2007-01-23.]

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." ["Akron v. Akron Center for Reproductive Health Inc.", [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=462&invol=416 462 U.S. 416] (1983). Findlaw.com. Retrieved 2007-01-26.] Shortly before his retirement from the bench, Chief Justice Warren Burger suggested that "Roe" be "reexamined";"Thornburgh v. American College of Obstetricians and Gynecologists", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=476&invol=747 476 U.S. 747] (1986). Findlaw.com. Retrieved 2007-02-02.] 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" [1988] 1 S.C.R. 30, and to find provisional restrictions on abortion also unconstitutional, "R. v. Morgentaler (1993)".

Ironically, Sandra Day O'Connor and Anthony Kennedy upheld Roe Vs Wade but they upheld many abortion restrictions over the years.

"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.""Webster v. Reproductive Health Services", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=492&page=490 492 U.S. 490] (1989). Findlaw.com. Retrieved 2007-02-02.] 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". Blackmunndash author of the "Roe" opinionndash 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."

"Planned Parenthood v. Casey"

With the retirement of "Roe" supporters William J. Brennan and Thurgood Marshall, and their replacement by David Souter and Clarence Thomas, pro-choice advocates viewed "Roe" for the first time as being in danger. [Wattleton, Faye. [http://a255.g.akamaitech.net/7/255/2422/19sep20050805/www.gpoaccess.gov/congress/senate/judiciary/sh102-1084pt2/533-541.pdf Testimony before the Senate Judiciary committee on the nomination of Clarence Thomas to the United States Supreme Court (PDF)] (1991-09-19). Retrieved 2007-02-02.] During the confirmation hearings of David Souter, NOW president Molly Yard declared that confirming Souter would mean "ending freedom for women in this country." [Yard, Molly. Quoted in Kamen, " [http://www.washingtonpost.com/wp-dyn/content/article/2005/09/18/AR2005091801188.html For Liberals, Easy Does it With Roberts] ", "Washington Post" (2005-09-19). Retrieved 2007-01-23.]

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. [Totenberg, Nina. " [http://www.npr.org/templates/story/story.php?storyId=1745254 Documents Reveal Battle to Preserve 'Roe'; Court Nearly Reversed Abortion Ruling, Blackmun Papers Show] ", "NPR's Morning Edition" (2004-03-04). Retrieved 2007-01-30.] 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.""Planned Parenthood of Southeastern Pa. v. Casey", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=505&page=833 505 U.S. 833] (1992). Retrieved 2007-02-03.] 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."

"Stenberg v. Carhart"

During the 1990s, Nebraska attempted to ban certain second-trimester abortion procedures sometimes called partial birth abortions. The Nebraska ban allowed other second-trimester abortion procedures called dilation and evacuation abortions. Ginsburg (who replaced White) stated, "this law does not save any fetus from destruction, for it targets only 'a method of performing abortion'.""Stenberg v. Carhart", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=530&page=914 530 U.S. 914] (2000). Retrieved 2007-02-02.] 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"ndash Thomas, Scalia, and Rehnquistndash disagreed again with "Roe": "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."

"Gonzales v. Carhart"

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.

Activities of Norma McCorvey

Norma McCorvey became a member of the pro-life movement in 1995; she now supports making abortion illegal. In 1998, she testified to Congress:

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". ["McCorvey v. Hill", [http://caselaw.lp.findlaw.com/data2/circs/5th/0310711p.pdf 385 F3d 846 (PDF)] (5th Cir 2004). Findlaw.com. Retrieved 2007-01-26] 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.

tate 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. [Myers, Megan. [http://www.commondreams.org/headlines06/1108-02.htm "S.D. rejects abortion ban",] "Argus Leader", (2006-11-08). Retrieved 2007-01-23.] 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. [MacIntyre, Krystal. " [http://jurist.law.pitt.edu/paperchase/2006/03/mississippi-abortion-ban-bill-fails-as.php Mississippi abortion ban bill fails as legislators miss deadline for compromise] ", "Jurist News Archive" (2006-03-28). Retrieved 2007-01-23.]

Several states have enacted so-called "trigger laws" which "would take effect if "Roe v. Wade" is overturned." ["Blanco signs law that would ban abortions] ", "Reuters" (2006-06-17). Retrieved 2007-03-26.] Those states include Illinois, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota.Vestal, Christine. [http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentId=121780 "States probe limits of abortion policy"] , Stateline.org (2007-06-11).] 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.

ee also

* List of United States Supreme Court cases, volume 410
* Pro-Choice
* Pro-Life

Footnotes

References

*cite book |last=Critchlow |first=Donald T. |authorlink=Donald T. Critchlow |title=The Politics of Abortion and Birth Control in Historical Perspective |year=1996 |publisher=Pennsylvania State University Press |location=University Park, PA |isbn=0271015705
*cite book |last=Critchlow |first=Donald T. |coauthors= |title=Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America |year=1999 |publisher=Oxford University Press |location=New York |isbn=0195046579
*cite book |last=Garrow |first=David J. |authorlink=David Garrow |coauthors= |title=Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade |year=1994 |publisher=Macmillan |location=New York |isbn=0025427555
*cite book |last=Hull |first=N.E.H. |authorlink= |coauthors= |title=The Abortion Rights Controversy in America: A Legal Reader |year=2004 |publisher=University of North Carolina Press |location=Chapel Hill |isbn=0807828734
*cite book |last=Hull |first=N.E.H. |authorlink= |coauthors=Peter Charles Hoffer |title=Roe v. Wade: The Abortion Rights Controversy in American History |year=2001 |publisher=University Press of Kansas |location=Lawrence, KS |isbn=0700611436
*cite book |last=Mohr |first=James C. |title=Abortion in America: The Origins and Evolution of National Policy, 1800–1900 |year=1979 |publisher=Oxford University Press |location=Oxford |isbn=0195026160
*cite book |last=Rubin |first=Eva R. [ed.] |title=The Abortion Controversy: A Documentary History |year=1994 |publisher=Greenwood |location=Westport, CT |isbn=0313284768
*cite book |last=Staggenborg |first=Suzanne |title=The Pro-Choice Movement: Organization and Activism in the Abortion Conflict |year=1994 |publisher=Oxford University Press |location=New York |isbn=0195065964

External links

* Full text of opinion with links to cited material
** [http://www.enfacto.com/case/U.S./410/113/ Enfacto]
* [http://www.oyez.org/oyez/resource/case/334/argument.mp3 Audio of oral argument at www.oyez.org]