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Roe v. Wade, 410 U.S. 113 (1973), was a U.S. Supreme Court case that resulted in a landmark judicial opinion about privacy and abortion in the United States.[1] According to the Roe decision, most laws against abortion 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 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.[2] 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."[1] The decision prompted national debate that continues to this day about whether abortion should be illegal, about who should decide whether or not it is illegal, about the role of the Supreme Court in constitutional adjudication, and about the role of religious and moral views in the political sphere. Roe v. Wade reshaped national politics, dividing much of the nation into "pro-choice" and "pro-life" camps, and inspiring grassroots activism on both sides.
History of caseIn 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 that claim was false.[3] The defendant in the case was Dallas County District Attorney Henry Wade, representing the State of Texas. The district court ruled in favor of "Jane Roe", but refused to grant an injunction against the enforcement of the laws barring abortion.[4] The district court's decision was based upon the Ninth Amendment to the United States Constitution, and the district 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.[5] The case of Roe v. Wade ultimately reached the U.S. Supreme Court on appeal. Following a first round of arguments, Justice Blackmun drafted a preliminary opinion that emphasized what he saw as the Texas law's vagueness.[6] Justices William Rehnquist and Lewis F. Powell, Jr. joined the Supreme Court too late to hear the first round of arguments. Therefore, Chief Justice 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 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.[7] Supreme Court decisionImage:Blackmun.jpg Harry Blackmun wrote the Court’s opinion. Abortion
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." Justice 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 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, Justice Blackmun also noted 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 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 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"). JusticiabilityAn 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.[8] 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.[9] Justice Blackmun's opinion quoted McKenna, and noted that human pregnancy would normally conclude more quickly than an appellate process: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied." This ruling was critical to the Supreme Court's power to review the case. DissentsImage:Justice White Official.jpg Byron White 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.[2] Justice 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 Justice White suggesting he "might agree" with the Court's values and priorities, he saw "no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States." Justice 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." Justice White 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." Justice Rehnquist elaborated upon several of Justice 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.[1] 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." ControversySome pro-life supporters argue that life begins upon conception, and thus the unborn 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 not to risk killing an innocent victim by allowing abortion.[10] While a majority of Americans believe that abortions performed in the first trimester should generally be legal, they also believe that second trimester abortions should generally be illegal.[11] 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. 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.[12] 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 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.[13] Congress in 1976 passed the Hyde Amendment, barring federal funding for abortion. 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).[14] 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.[15] Roe remains controversial; polls show continued division about its landmark rulings, and about the decision as a whole. Internal memorandaInternal Supreme Court memoranda surfaced in the Library of Congress in 1988, among the personal papers of Justice Douglas and other Justices, showing the private discussions of the Justices on the case. Blackmun said of the majority decision he authored, "[Y]ou 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."[16] Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to the state legislatures, though he joined Blackmun's decision.[17] The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the Court's decision.[18] The "viability" criterion, which Justice Blackmun acknowledged was arbitrary, is still in effect, although the point of viability has receded toward conception as medical science has found ways to help premature babies survive.[19] Liberal legal criticismsLiberal legal scholars have criticized Roe, despite their opposition to pro-life laws, arguing that the ends achieved by Roe do not justify the means.[20] William Saletan, for example, has written that "Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference."[21] 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."[22] 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."[23] 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."[24] Ruth Bader Ginsburg has criticized the court's ruling in Roe v. Wade for terminating a nascent democratic movement to liberalize abortion law.[25] Likewise, legal affairs editor Jeffrey Rosen[26] and Michael Kinsley[27] 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 conservatives on an issue about which they care deeply".[28] 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."[29] Liberal law professors Alan Dershowitz,[30]Cass Sunstein, [31] and Kermit Roosevelt[32] have also expressed disappointment with Roe. Public opinionAn 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?[33] In reply, 49% of respondents indicated favor while 47% 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 abortion.[34] The Harris poll question dealt with first trimester abortions, while later abortions are more controversial; 72% of women and 58% of men are opposed according to a Los Angeles Times poll.[11] Also, Roe decided that a woman can get an abortion for any reason, without regard to what her doctor advises.[1] The Harris poll has tracked public opinion about Roe since 1973:[35]
The Harris organization says that support for Roe is at its "lowest level ever,"[33] though the situation in 2006 was not appreciably different from in 1985. Role in subsequent decisions and politicsOpposition to Roe on the bench grew when President Ronald 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."[36] 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."[37] Shortly before his retirement from the bench, Chief Justice Warren Burger suggested that Roe be "reexamined";[38] 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. Webster v. Reproductive Health ServicesIn 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."[39] In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.[39] In concurring opinions, Justice O'Connor refused to reconsider Roe, and Justice Scalia criticized the Court and O'Connor for not overruling Roe.[39] Justice Blackmun—author of the Roe opinion—stated in his dissent that Justice White, Justice Kennedy and Chief Justice 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."[39] White had recently opined that Blackmun was "warped."[38] Planned Parenthood v. CaseyWith 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.[40] During the confirmation hearings of David Souter, NOW president Molly Yard declared that confirming Souter would mean "ending freedom for women in this country."[41] 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.[42] 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."[43] Rehnquist and Scalia signed each others' dissenting opinions; White and Thomas signed those dissenting opinions as well. Justice 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."[43] Stenberg v. CarhartDuring 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. Justice Ginsburg (who replaced Justice White) stated, "this law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."[44] 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. Justice 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.[44] 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.[44] 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." Activities of Norma McCorveyNorma McCorvey became a member of the pro-life movement following her conversion to Christianity; 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.[3] 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.[45] 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. State abortion bansOn March 6, 2006, South Dakota Governor Mike Rounds signed into law a pro-life statute which made performing abortions a felony, and that law was subsequently repealed in a November 7, 2006 referendum.[46] On February 27 2006, Mississippi’s House Public Health Committee voted to approve a ban on abortion, and that bill died after the House and Senate failed to agree on compromise legislation.[47] Several states have enacted so-called "trigger laws" which "would take effect if Roe v. Wade is overturned."[48] Federal ban examined by the courtsIn 2003, Congress passed the Partial-Birth Abortion Ban Act, which led to a lawsuit in the case of Gonzales v. Carhart. The Supreme Court heard arguments in the case on November 8, 2006. 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 William Rehnquist and Sandra O'Connor respectively. Further, the ban enacted in Gonzales v. Carhart is a federal statute, rather than a state statute as in the Stenberg case. A decision in Gonzales v. Carhart is expected in 2007. The federal ban was the subject of disagreement in the lower courts. In the Second Circuit, Judge Chester J. Straub dissented from that court's 2-1 decision to strike down the federal statute.[49] In that same decision, Chief Judge John M. Walker, Jr. said that he was compelled by Supreme Court precedent to strike down the federal statute. But Walker asked, "Is it too much to hope for a better approach to the law of abortion – one that accommodates the reasonable policy judgments of Congress and the state legislatures without departing from established, generally applicable, tenets of constitutional law?" Footnotes
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