Roe v. Wade
| Terminate processing activity|
|In the back alley|
“”The right of personal privacy includes the abortion decision.
|—Blackmun's Majority Opinion|
This case was brought to the Supreme Court in 1973. Norma McCorvey, a Texas woman, alias Jane Roe, filed 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 simply 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) does not mean a person 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 is 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, and underpins 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 for women, changes not to be taken lightly. However, he noted that the woman's interest in her own privacy is counterbalanced, obviously, 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 at law. Blackmun set up this framework specifically:
- In the first trimester, the right of the fetus is negligible.[note 1] However, the woman's interest is great, as during the first trimester, the health risks of an abortion are significantly less than the health risks 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 woman's interests vis a vis the fetus should be done by the states, not the Court, but if a state chose to forbid abortions after viability, it would be allowed. Depending on state law, the woman could still choose to abort her fetus, but the Partial Birth Abortion Act (upheld in Gonzales v. Carhart), could potentially make late term abortion quite difficult.
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Several cases, up for decision at the Supreme Court in the 2007 term, may whittle away at the holding of the case. Specifically, a South Dakota law banning nearly all abortions is seen as a deliberate attempt to force a test case, where pro-life activists will have a chance to ask the Supreme Court to reconsider Roe. However, while Roe may be highly distinguished in these cases, the fact that the central holding of Roe v. Wade is so important to modern civil rights jurisprudence suggests that the whole case is unlikely to be overturned in its entirety, based on the United States concept of stare decisis, or respect for legal precedent. Under this outlook, losing Roe's holding would be fatal to an entire constitutional structure, which the Court disfavors.
Some commentators suggest that limitations of Roe may actually be good for the pro-choice movement, as it would allow pro-life activists to vent their animosity against judicial activism while forcing the public to create a more moderate legislative solution of the problem. These commentators perceive the American public as more moderate than either the pro-choice or pro-life movements.
- 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 women to control their reproduction, led to the mess we have today.
- 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 mother's health. Blackmun argued that, if life began at conception, Texas and other states would not allow this exception.