Roe v. Wade

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(l-to-r) Norma McCorvey and her lawyer Gloria Allred in 1989
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Abortion
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Medically approved
In the back alley
Roe v. Wade
410 U.S. 113
Decided: January 22, 1973
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.[1]

Roe v. Wade was a landmark 1973 Supreme Court ruling which held that the US Constitution generally protects a pregnant woman'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,[2] 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.[3] In June 2022, the conservatives achieved a milestone when the Supreme Court voted 6-3 to overturn the Roe decision,[4] though this went challeneged in several states.

Background[edit]

This case was brought to the Supreme Court in 1973. Norma McCorvey, a Texas woman, (alias Jane Roe), 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) does not mean that someone does not have that right. The Appellate court relied heavily on Griswold v. Connecticut for its ruling.

Opinion[edit]

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.[5] 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.[6] 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.[7]

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 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 at law. Blackmun set up this framework specifically:

  1. 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 those posed by pregnancy. Therefore, during this period, the state cannot regulate abortion.
  2. After the first trimester, the state may regulate abortion procedures et al but not necessarily ban abortions outright, until,
  3. 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 chooses to forbid abortions after viability, it would be allowed.[8] 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.

Controversy[edit]


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.[9] However, while the case 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 would be 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 has long disfavored.[10]

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.[11]

In May 2021, Texas governor Greg Abbott signed a law that would ban abortions after six weeks,[12] which is considered to be too early to tell if a woman is pregnant or not. This law went into effect in September 2021, and came with a little more than just banning procedures. Part of the law states that anyone who assists a woman in getting an abortion (including the person who takes her to the clinic) can be sued for $10,000, and that a dedicated website would be set up to report people, essentially placing a bounty on the head of anyone who knows someone who got an abortion. Naturally, the website was flooded with TikTokers and Redditors spamming the Navy Seals copypasta and Shrek porn before anyone could use it to report someone.[13] Abortion activists and women's rights advocates, as well as other lawmakers, argued that this law violates the statute set by Roe v. Wade, and is unconstitutional. SCOTUS, however, stated that it would not block the law because the case did not address "complex and novel antecedent procedural questions."[14] The Religious Right and some groups of American Catholics have championed this law as a win in their war against Roe v. Wade, leading to the question of whether the landmark decision would be overturned or not. On the other hand, US President Joe Biden, a Roman Catholic, discounted the law, believing it would greatly encroach on a women's privacy and their right to an abortion.[15]

Dobbs v. Jackson Women's Health Organization[edit]

On May 2, 2022, Politico leaked a Supreme Court draft that called for Roe and Planned Parenthood v. Casey to be overturned.[16] Justice Samuel Alito was the head honcho for the decision, citing the idea that since abortions are not stated in the Constitution, 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 2] Others warned that overturning Roe could possibly lead to lack of healthcare and worse health conditions for women,[17] and greatly harm women of color. [18]

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.[19]

It was speculated before that overturning Roe could also end up severely damaging LGBT rights.[20] 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. [21]

External links[edit]

  • 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.

Notes[edit]

  1. 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.
  2. Byron White and William Rehnquist, respectively.

References[edit]