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Roe v. Wade
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Roe v. Wade, 410 U.S. 113 (1973), is a United States Supreme Court case that resulted in a landmark decision regarding abortion. 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.
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Roe v. Wade, 410 U.S. 113 (1973), is a United States Supreme Court case that resulted in a landmark decision regarding abortion. 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.
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 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. These rulings affected 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, while activating grassroots movements on both sides.
History of the case
In 1970, attorneys Linda Coffee and Sarah Weddington filed suit in a U.S. District Court in Texas on behalf of Norma L. McCorvey ("Jane Roe"). McCorvey claimed her pregnancy was the result of rape. 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 on the merits, but declined to grant an injunction against the enforcement of the laws barring abortion. 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.
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. 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.
Supreme Court decision
The court issued its decision on January 22, 1973, with a 7 to 2 majority vote in favor of McCorvey. 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 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 in the United States was first criminalized by statute in 1821 by Connecticut, and every state had abortion legislation by 1900. Before 1821, abortion was sometimes considered a common law crime. 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 require protection of 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 exists.
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.
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. 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
ors at the 2009 March for Life rally against Roe v. Wade]]
Some pro-life supporters argue that all nine justices in Roe failed to adequately recognize that life begins at conception (sometimes referred to as "fertilization") and should therefore be protected by the Constitution; the dissenting justices in Roe instead wrote that decisions about abortion "should be left with the people and to the political processes the people have devised to govern their affairs." 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. Every year on the anniversary of the decision, hundreds of thousands of pro-life supporters demonstrate outside the Supreme Court Building in Washington, D.C. in the March for Life.
Advocates of Roe describe it as vital to preservation of women's rights, personal freedom, and privacy. Denying the abortion right has been equated to compulsory motherhood, and some scholars (not including any member of the Supreme Court) have argued that abortion bans therefore violate the Thirteenth Amendment:
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.
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. 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).
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.
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." Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to the state legislatures, though he joined Blackmun's decision.
The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the Court's decision. 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.
Liberal critiques
Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One reaction has been to argue that Justice Blackmun reached the correct result but went about it the wrong way. Another reaction has been to argue that the ends achieved by Roe do not justify the means.
Justice John Paul Stevens, in a 2007 interview, averred that Roe "create[d] a new doctrine that really didn’t make sense," and lamented that if Justice Blackmun "could have written a better opinion[, that] ... might have avoided some of the criticism." His colleague Justice Ruth Bader Ginsburg had, before joining the Court, criticized the decision for terminating a nascent democratic movement to liberalize abortion law. 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."
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 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." Professor Laurence Tribe had similar thoughts: "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." Liberal law professors Alan Dershowitz, Cass Sunstein, and
Kermit Roosevelt have also expressed disappointment with Roe.
Jeffrey Rosen and Michael Kinsley echo Ginsburg, arguing that a democratic movement would have been the correct way to build a more durable consensus in support of abortion rights. William Saletan wrote that "Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference." Benjamin Wittes has written that Roe "disenfranchised millions of conservatives on an issue about which they care deeply". And Edward Lazarus, a former Blackmun clerk who "loved Roe’s author like a grandfather" wrote: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible....Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms."
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.
The Harris poll has tracked public opinion about Roe since 1973:
Regarding the Roe decision as a whole, more Americans support it than support overturning it. When pollsters describe various regulations that Roe prevents legislatures from enacting, support for Roe drops.
Role in subsequent decisions and politics
Opposition to Roe on the bench grew when President Reagan—who supported legislative restrictions on abortion—began making federal judicial appointments in 1981. 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."
In addition to White and Rehnquist, Reagan appointee Sandra Day O'Connor began dissenting from the Court's abortion cases, arguing in 1983 that the trimester-based analysis devised by the Roe Court was "unworkable." Shortly before his retirement from the bench, Chief Justice Warren Burger suggested in 1986 that Roe be "reexamined"; the associate justice who filled Burger's place on the Court—Justice Antonin Scalia—vigorously opposed Roe. Concern about overturning Roe played a major role in the defeat of Robert Bork's nomination to the Court in 1987; the man eventually appointed to replace Roe-supporter Lewis Powell was Anthony M. Kennedy.
The Supreme Court of Canada used the rulings in both Roe and Doe v. Bolton as grounds to find Canada's federal law restricting access to abortions unconstitutional. That Canadian case, R. v. Morgentaler, was decided in 1988.
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," 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."
Planned Parenthood v. Casey
With the retirement of Roe supporters William J. Brennan in 1990 and Thurgood Marshall in 1991, and their replacement by David Souter and Clarence Thomas, pro-choice advocates viewed Roe for the first time as being in danger. During the confirmation hearings of David Souter, NOW president Molly Yard declared that confirming Souter would mean "ending freedom for women in this country."
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. 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." 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: "[B]y 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 a certain second-trimester abortion procedure called intact dilation and extraction (also, partial birth abortion). 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'." 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 second trimester 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."
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. 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.
Presidential positions
The Roe decision was opposed by Presidents Gerald Ford, Ronald Reagan, and George W. Bush. President George H.W. Bush also opposed Roe, though he had supported abortion rights earlier in his career.
Jimmy Carter supported legal abortion from an early point in his political career, in order to prevent birth defects and in other extreme cases; he encouraged the outcome in Roe and generally supported abortion rights. Roe was also supported by President Bill Clinton. President Barack Obama has taken the position that, "Abortions should be legally available in accordance with Roe v. Wade."
Richard Nixon, who was President when the Roe decision occurred, did not believe abortion was an acceptable form of population control. Nixon did not publicly comment about the decision.
State laws regarding Roe
Several states have enacted so-called "trigger laws" which "would take effect if Roe v. Wade is overturned." Those states include Illinois, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota. Additionally, many states did not repeal pre-1973 statutes that criminalized abortion, and some of those statutes could automatically spring back to life in the event of a reversal of Roe.
Other states have passed laws to maintain the legality of abortion if Roe v. Wade is overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington.
North Dakota's House of Representatives has passed a bill that declares that a fertilized egg has all the rights of a person, essentially making abortion legally equivalent to murder. The bill's sponsor, Dan Ruby (R-Minot), was quoted as saying "[t]his is the exact language that's required by Roe vs. Wade. It stipulated that before a challenge can be made, we have to identify when life begins, and that's what this does."
See also
Footnotes
External links
- Full text of opinion with links to cited material
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