Roe v. Wade
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|In the back alley|
“”This 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 […] in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether to terminate her pregnancy.
|—Justice Harry Blackmun in the majority opinion.|
Roe v. Wade was a landmark 1973 Supreme Court ruling which held that the US Constitution generally protects a pregnant person's choice to have an abortion in certain circumstances. The case and decision became one of the most controversial moments in the Court's history, prompting a decades-long battle by the Republican Party and the Federalist Society to see it undone, primarily by stacking federal and state courts with right-wing extremists. In June 2022, the conservatives achieved a milestone when the Supreme Court voted 5-4 to overturn the Roe decision,[note 1] though this went challenged in several states.
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This case was brought to the Supreme Court in 1973. Norma McCorvey, a Texas woman, alias Jane Roe at the time, filed a suit alleging that her rights to choose the direction of her life, and her choice of when or even if to have a child, were directly infringed upon by a Texas law that banned all abortions except those in case of rape, incest or medical need.
The Court of Appeals decision was based on the Ninth Amendment (Enumeration clause), which states that just because a right is not explicitly mentioned in the Constitution (such as the right to privacy and the right to decide when and how to have a family), that does not mean that someone does not have that right. The Appellate court relied heavily on Griswold v. Connecticut for its ruling.
The opinion was written by Justice Harry Blackmun. Notable for its definition of fundamental rights, the opinion was an expansion of the Supreme Court's jurisprudence under the Fourteenth Amendment, which, along with Griswold v. Connecticut, sets up spheres of personal activity which the state cannot regulate without good cause. Specifically, the Court held that the Fourteenth Amendment protects implicit rights enumerated in its penumbra, if not the text itself, which includes the right to privacy. The holding of the Court has become a foundation of fundamental rights jurisprudence, and has been heavily relied upon since it was decided, underpinning many other famous cases such as Lawrence v. Texas.
Specifically, Blackmun argued that the right to terminate a pregnancy is in the penumbra of privacy rights protected by substantive due process, since pregnancy can occasion life-changing events, changes not to be taken lightly. However, he noted that the pregnant person's interest in their own privacy is obviously counterbalanced by the fetus' interest in life, and the state's interest in protecting life. The question, then, is when each interest trumps the other, and what that means in law. Blackmun set up this framework specifically:
- In the first trimester, the right of the fetus is negligible.[note 2] However, the parent's interest is great, as during the first trimester, the health risks of an abortion are significantly less than those posed by pregnancy. Therefore, during this period, the state cannot regulate abortion.
- After the first trimester, the state may regulate abortion procedures et al but not necessarily ban abortions outright, until,
- The fetus' interest in life and the state's interest in protecting that life comes into being at the moment of viability – when a fetus can live on its own. After this moment, the balancing of the parent's interests vis-à-vis the fetus should be done by the states, not the Court, but if a state chooses to forbid abortions after viability, it would be allowed. Depending on state law, the person could still choose to abort their fetus, but the Partial Birth Abortion Act (upheld in Gonzales v. Carhart) could potentially make late term abortion quite difficult.
Erosion of rights
The period from time from the Roe v Wade ruling in 1973 up to its overturning in 2022 saw a gradual eroding of abortion rights by an increasingly radically conservative Supreme Court, and to a much lesser extent by improvements in neonatal care that decreased the time of fetal viability outside the uterus.
The first such case that eroded Roe as Webster v. Reproductive Health Services in 1989, where the Supreme Court ruled that state medical facilities are not required to perform abortions. This case was also the first time that a Supreme Court Justice (Antonin Scalia) wrote an opinion that Roe should be overturned. In a minority opinion to the ruling, Justice Harry Blackmun accused three of the majority opinion justices (William Rehnquist, Byron White, and Anthony Kennedy) of attempting to overturn Roe by stealth.
In Planned Parenthood v. Casey (1992), the Supreme Court ruled that it was permissible for states to enact laws made requirements for abortions in the first trimester as long as it was not an 'undue burden' on the pregnant person. This opened up the possibility for states to require non-science based counseling of pregnant people (such as making false claims about abortion to breast cancer).
In 2000, the Supreme Court struck down state-based bans of fallaciously-named 'partial birth abortion' (Stenberg v. Carhart), but in 2003 President George W. Bush signed the Partial-Birth Abortion Ban Act, bringing back the bans. The act was held as constitutional by the Supreme Court in 2007 (Gonzalez v. Carhart and Gonzalez v. Planned Parenthood Federation of America).
Subsequently, some states began enacting so-called 'fetal pain' laws, based on the non-scientific theory that fetuses could experience pain after 20 weeks gestation, and thus banning abortions after that time.
Dobbs v. Jackson Women's Health Organization
On May 2, 2022, Politico leaked a Supreme Court draft that called for Roe and Planned Parenthood v. Casey to be overturned. Justice Samuel Alito was the head honcho for the decision, citing the idea that since abortions are not stated in the Constitution (as are many rights we take for granted), they should therefore not be allowed, and that the 1973 decision was a judicial error, despite being a stark 7-2 vote with one liberal and one conservative dissenting,[note 3] later reinforced by another 7-2 vote with the backing of a Reagan nominee. Others warned that overturning Roe could possibly lead to lack of healthcare and worse health conditions for pregnant people, and greatly harm people of color.
On June 24, 2022, the Supreme Court Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett all voted to overturn, with only one other judge (John Roberts) concurring. All of the Justices were picked by Republicans over the years with at least three having been hand-picked by former President Donald Trump. All Democratic judges voted against overturning Roe v. Wade, but were simply outnumbered by conservative bias. Because several states wrote trigger laws in anticipation of Roe's overturning, and since some states maintained pre-Roe abortion laws in their books, it's possible that up to 26 states will end up making abortion illegal, with some already doing so.
It was speculated before that overturning Roe could also end up severely damaging LGBT rights. This may be becoming true; with overturning Roe not being enough, Justice Clarence Thomas called for three other decisions to be "reviewed": Lawrence v. Texas, which declared anti-sodomy laws unconstitutional; Obergefell v. Hodges, which legalized same-sex marriage throughout the US (except for American Samoa and Indian reservations); and Griswold v. Connecticut, which legalized contraceptives in the US.
In the 6 months after Dobbs, there were 32,000 fewer abortions than would be typically expected, or about 64,000 per year. Bear in mind that many states have decided not to outlaw or restrict abortion, so people in need of an abortion who were unfortunate enough to live in states that did outlaw abortion would often travel to states where people are generally sane enough to value the physical and mental health of pregnant people. Given that being a parent is basically dealing with one last-minute emergency after another,[citation NOT needed] one can presume that the people who are forced to carry unwanted or inviable pregnancies to term are probably going to struggle as parents.
With all the busses and trains apparently missing the rapture, one might expect some charity organizations to begin offering travel assistance in the near future, and the anti-abortion crowd seems to have expected this as well; they began pushing for all sorts of insane laws criminalizing someone traveling for an out-of-state abortion. Anyone with an inkling of understanding of constitutional law would immediately say "Commerce Clause", proving that constitutional law is not for wingnuts. In Idaho, such a bill has become law, and anyone who assists a minor to get an abortion in another state can face 2-5 years in prison.
Furthermore, in the confusion regarding the actual laws/punishments on the books, some minors were denied abortions after having been raped, including a 10-year old, having to add on the extra stress of traveling on top of everything else they had to deal with.
In a more mundane issue, though not if it affects your pregnancy of course, is how the ruling can affect civil lawsuits. In the US, there is a form of medical malpractice called "wrongful birth"; a mother would've aborted had she known there was a fetal defect, the doctor did not perform at the standard of care, and the doctor's failure resulted in the mother not being aware of the defect. In one case, a doctor failed to detect that a fetus was missing most of its limbs, and the mother won $2.5m to cover medical expenses for the infant... but that was overturned on appeal because the day the mother had the scans was 1 or 2 days into the 3rd trimester; as Florida did not allow for 3rd trimester abortions for fetal impairment, she could not have received an abortion in the state of Florida. She could, however, have gone to another state that does allow abortion for fetal impairment in the third trimester, but that was irrelevant to the ruling. This was while Roe was in effect; since then, Florida has limited abortions to just the first half of the first trimester, before many pregnancies can even be detected, let alone any fetal impairments, and fetal impairment exceptions are limited only to fatal cases. So if the doctor screws up and doesn't detect an impairment, or even worse, the doctor intentionally withholds this information so you won't want to abort, it doesn't matter if you could've gone even just 5 miles away to another state where abortions are legal, you don't have legal recourse.
The Republican Party's Guide to Human Development
- 1985 NC Law Review - Ruth Ginsburg discusses possible alternative rulings to Roe, and how addressing an issue of "privacy" in an attempt to avoid more direct rights of people to control their reproduction led to the mess we have today.
- Chief Justice John Roberts voted to uphold the abortion ban in Mississippi that challenged Roe, but thought it was too soon to overturn Roe outright.
- Blackmun rejects the idea that life begins at conception in a footnote, referencing Texas' argument in this case that it did, as not compatible with the law of almost all states at the time that a fetus can be aborted in the case of the parent's health. Blackmun argued that, if life began at conception, Texas and other states would not allow this exception.
- Byron White and William Rehnquist, respectively.
- This generally happens in the 6th week LMP.
- Typically, it is between the 23rd or 24th week LMP.
- Variously defined as through 27th or 28th week LMP; in Massachusetts, 24 weeks from implantation ≈ 27 weeks LMP.
- Roe v. Wade, 410 U.S. 113 (1973) Justia: U.S. Supreme Court.
- On this day, the Roe v. Wade decision (January 22, 2020) National Constitution Center (archived from February 29, 2020).
- A “Woodstock” For Right-wing Legal Activists Kicked Off The 40-year Plot To Undo Roe V. Wade: Two hundred conservatives gathered at Yale Law School and coalesced into a group whose name was a joke: the Federalist Society. by Ilyse Hogue (May 10 2022, 10:45 a.m.) The Intercept.
- U.S. Supreme Court overturns Roe v. Wade, ends constitutional right to abortion by Lawrence Hurley and Andrew Chung (June 27, 202211:53 AM PDT) Reuters.
- Roe v. Wade (Jun 17, 1970) Case Law.
- Lawrence v. Texas, 539 U.S. 558 (2003) Justia: U.S. Supreme Court.
- Parts VIII - IX of the Opinion of the Court.
- A History of Key Abortion Rulings of the U.S. Supreme Court by David Masci & Ira C. Lupu (January 16, 2013) Pew Research Center.
- Supreme Court has voted to overturn abortion rights, draft opinion shows, Politico.
- The dire health consequences of denying abortions, explained, Vox.
- Overturning Roe v. Wade Could Have Consequences Beyond Abortion Restrictions
- Here's what could happen if Roe v. Wade is overturned, NPR.
- LGBTQ advocates worry other rights at risk if court overturns Roe v. Wade, PBS.
- #WeCount Report (April 11, 2023) Society of Family Planning.
- Antiabortion lawmakers want to block patients from crossing state lines: Some advocacy groups and their allies are crafting legislative language that could be adopted in Republican-led state capitals. by Caroline Kitchener & Devlin Barrett (Updated June 30, 2022 at 8:30 a.m. EDT; Published June 29, 2022 at 6:17 p.m. EDT) The Washington Post.
- Idaho becomes one of the most extreme anti-abortion states with law restricting travel for abortions: A bill that prohibits people in Idaho from helping pregnant minors leave the state to obtain abortions became law on Wednesday. by Aria Bendix (April 6, 2023, 6:24 AM PDT) NBC News.
- Affidavits: 2 more pregnant minors who were raped were denied Ohio abortions by Marty Schladen (Published: 11:00 p.m. ET Sept. 26, 2022; Updated: 10:13 a.m. ET Sept. 27, 2022) The Enquirer, Cincinnati.
- Man charged with raping Ohio girl, 10, who was denied abortion (14 July 2022) BBC.
- Florida Appellate Court Overturns $2.5M Wrongful Birth Verdict