|Roe v. Wade|
|Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973
|Full case name||Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County|
|Citations||410 U.S. 113 (more)
93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
|Prior history||Judgment for plaintiffs, injunction denied, 314 F. Supp. 1217 (N.D. Tex. 1970); probable jurisdiction noted, 402 U.S. 941 (1971); set for reargument, 408 U.S. 919 (1972)|
|Subsequent history||Rehearing denied, 410 U.S. 959 (1973)|
|Texas law making it a crime to assist a woman to get an abortion violated her due process rights. U.S. District Court for the Northern District of Texas affirmed in part, reversed in part.|
|Majority||Blackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell|
|Dissent||White, joined by Rehnquist|
|U.S. Const. Amend. XIV; Tex. Code Crim. Proc. arts. 1191–94, 1196|
Roe v. Wade, 410 U.S. 113 (1973), is a landmark decision issued in 1973 by the United States Supreme Court on the issue of the constitutionality of laws that criminalized or restricted access to abortions. The Court ruled 7–2 that a right to privacy under the Due Process Clause of the 14th Amendment extended to a woman's decision to have an abortion, but that this right must be balanced against the state's interests in regulating abortions: protecting women's health and protecting the potentiality of human life. Arguing that these state interests became stronger over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the third trimester of pregnancy.
Later, in Planned Parenthood v. Casey (1992), the Court rejected Roe's trimester framework while affirming its central holding that a woman has a right to abortion until fetal viability. The Roe decision defined "viable" as "potentially able to live outside the mother's womb, albeit with artificial aid." Justices in Casey acknowledged that viability may occur at 23 or 24 weeks, or sometimes even earlier, in light of medical advances.
In disallowing many state and federal restrictions on abortion in the United States, Roe v. Wade prompted a national debate that continues today about issues including 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 United States into pro-life and pro-choice camps, while activating grassroots movements on both sides.
According to the Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." Providing a historical analysis on abortion, Justice Harry Blackmun noted that abortion was "resorted to without scruple" in Greek and Roman times. Blackmun also addressed the permissive and restrictive abortion attitudes and laws throughout history, noting the disagreements among leaders (of all different professions) in those eras and the formative laws and cases. In the United States, in 1821, Connecticut passed the first state statute criminalizing abortion. Every state had abortion legislation by 1900. In the United States, abortion was sometimes considered a common law crime, though Justice Blackmun would conclude that the criminalization of abortion did not have "roots in the English common-law tradition." Rather than arresting the women having the abortions, legal officials were more likely to interrogate these women to obtain evidence against the abortion provider in order to close down that provider's business.
In June 1969, 21-year-old Norma McCorvey discovered she was pregnant with her third child. She returned to Dallas, Texas, where friends advised her to assert falsely that she had been raped in order to obtain a legal abortion (with the understanding that Texas law allowed abortion in cases of rape and incest). However, this scheme failed because there was no police report documenting the alleged rape. In any case, the Texas statute allowed abortion only ”for the purpose of saving the life of the mother”. She attempted to obtain an illegal abortion, but found that the unauthorized facility had been closed down by the police. Eventually, she was referred to attorneys Linda Coffee and Sarah Weddington. (McCorvey would end up giving birth before the case was decided, and the child was put up for adoption.)
In 1970, Coffee and Weddington filed suit in the United States District Court for the Northern District of Texas on behalf of McCorvey (under the alias Jane Roe). The defendant in the case was Dallas County District Attorney Henry Wade, who represented the State of Texas. McCorvey was no longer claiming her pregnancy was a result of rape, and later acknowledged that she had lied about having been raped. "Rape" is not mentioned in the judicial opinions in the case.
On June 17, 1970, a three-judge panel of the District Court, consisting of Northern District of Texas Judges Sarah T. Hughes, William McLaughlin Taylor Jr. and Fifth Circuit Court of Appeals Judge Irving Loeb Goldberg, unanimously  declared the Texas law unconstitutional, finding that it violated the right to privacy found in the Ninth Amendment. In addition, the court relied on Justice Arthur Goldberg's 1965 concurrence in Griswold v. Connecticut. The court, however, declined to grant an injunction against enforcement of the law.
In 1971, Shirley Wheeler was charged with manslaughter after Florida hospital staff reported her illegal abortion to the police. She received a sentence of two years' probation and under her probation, she had to move back into her parents' house in North Carolina. The Boston Women's Abortion Coalition held a rally for Wheeler in Boston to raise money and awareness of her charges as well as had staff members from the Women's National Abortion Action Coalition (WONAAC) speak at the rally. Wheeler was possibly the first woman to be held criminally responsible for submitting to an abortion. Her conviction was overturned by the Florida Supreme Court.
Roe v. Wade reached the Supreme Court on appeal in 1970. The justices delayed taking action on Roe and a closely related case, Doe v. Bolton, until they had decided Younger v. Harris (because they felt the appeals raised difficult questions on judicial jurisdiction) and United States v. Vuitch (in which they considered the constitutionality of a District of Columbia statute that criminalized abortion except where the mother's life or health was endangered). In Vuitch, the Court narrowly upheld the statute, though in doing so, it treated abortion as a medical procedure and stated that physicians must be given room to determine what constitutes a danger to (physical or mental) health. The day after they announced their decision in Vuitch, they voted to hear both Roe and Doe.
Arguments were scheduled by the full Court for December 13, 1971. Before the Court could hear the oral arguments, Justices Hugo Black and John Marshall Harlan II retired. Chief Justice Warren Burger asked Justice Potter Stewart and Justice Blackmun to determine whether Roe and Doe, among others, should be heard as scheduled. According to Blackmun, Stewart felt that the cases were a straightforward application of Younger v. Harris, and they recommended that the Court move forward as scheduled.
In his opening argument in defense of the abortion restrictions, attorney Jay Floyd made what was later described as the "worst joke in legal history." Appearing against two female lawyers, Floyd began, "Mr. Chief Justice and may it please the Court. It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word." His remark was met with cold silence; one observer thought that Chief Justice Burger "was going to come right off the bench at him. He glared him down."
After a first round of arguments, all seven justices tentatively agreed that the Texas law should be struck down, but on varying grounds. Burger assigned the role of writing the Court's opinion in Roe (as well as Doe) to Blackmun, who began drafting a preliminary opinion that emphasized what he saw as the Texas law's vagueness. (At this point, Black and Harlan had been replaced by Justices William Rehnquist and Lewis F. Powell Jr., but they arrived too late to hear the first round of arguments.) But Blackmun felt that his opinion did not adequately reflect his liberal colleagues' views. In May 1972, he proposed that the case be reargued. Justice William O. Douglas threatened to write a dissent from the reargument order (he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold the statute), 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. The case was reargued on October 11, 1972. Weddington continued to represent Roe, and Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for Texas.
Blackmun continued to work on his opinions in both cases over the summer recess, even though there was no guarantee that he would be assigned to write them again. Over the recess, he spent a week researching the history of abortion at the Mayo Clinic in Minnesota, where he had worked in the 1950s. After the Court heard the second round of arguments, Powell said he would agree with Blackmun's conclusion but pushed for Roe to be the lead of the two abortion cases being considered. Powell also suggested that the Court strike down the Texas law on privacy grounds. Justice Byron White was unwilling to sign on to Blackmun's opinion, and Rehnquist had already decided to dissent.
The Court issued its decision on January 22, 1973, with a 7-to-2 majority vote in favor of Roe. Justices Burger, Douglas, and Stewart filed concurring opinions, and Justice White filed a dissenting opinion in which Justice Rehnquist joined. Burger's, Douglas's, and White's opinions were issued along with the Court's opinion in Doe v. Bolton (announced on the same day as Roe v. Wade). The 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.
The Court 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 in the companion case, Doe, stated more emphatically, "The Ninth Amendment obviously does not create federally enforceable rights."
Justice Blackmun's majority opinion explicitly rejected a fetal "right to life" argument. The Court instead recognized the right to an abortion as a fundamental right included within the guarantee of personal privacy. As a result, regulations limiting abortion had to be justified by a "compelling state interest," and legislative enactments regulating abortion had to be narrowly tailored to meet the compelling interests; in other words, Justice Blackmun applied a strict scrutiny analysis to abortion regulations.
While acknowledging that the right to abortion was not unlimited, Justice Blackmun, speaking for the Court, created a trimester framework to balance the fundamental right to abortion with the government's two legitimate interests: protecting the mother's health and protecting the "potentiality of human life." The trimester framework addressed when a woman's fundamental right to abortion would be absolute, and when the state's interests would become compelling. In the first trimester, when it was believed that the procedure was safer than childbirth, the Court left the decision to abort completely to the woman and her physician. From approximately the end of the first trimester until fetal viability, the state's interest in protecting the health of the mother would become "compelling." At that time, the state could regulate the abortion procedure if the regulation "reasonably relate[d] to the "preservation and protection of maternal health." At the point of viability, which the Court believed to be in the third trimester, the state's interest in "potential life" would become compelling, and the state could regulate abortion to protect "potential life." At that point, the state could even forbid abortion so long as it made an exception to preserve the life or health of the mother. The Court added that the primary right being preserved in the Roe decision was that of the physician to practice medicine freely absent a compelling state interest – not women's rights in general. In 1992, however, the plurality of Justices Sandra Day O'Connor, David Souter, and Anthony Kennedy made a subtle move away from the physician's-rights approach of Roe and toward a patient's-rights approach in Planned Parenthood of Southeastern Pennsylvania v. Casey. The plurality in Casey, explicitly confirming that women had a constitutional right to abortion and further upholding the "essential holding" of Roe, stated that women had a right to choose abortion before viability and that this right could not be unduly interfered with by the state. They asserted that this right was rooted in the Due Process Clause of the Fourteenth Amendment.
Prior to the decision, the justices discussed the trimester framework at great length. Justice Powell had suggested that the point where the state could intervene be placed at viability, which Justice Thurgood Marshall supported as well. In an internal memo to the other justices before the majority decision was published, Justice Blackmun wrote: "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." Roe supporters are quick to point out, however, that the memo only reflects Blackmun's uncertainty about the timing of the trimester framework, not the framework or the holding itself. In his opinion, Blackmun also clearly explained how he had reached the trimester framework – scrutinizing history, common law, the Hippocratic Oath, medical knowledge, and the positions of medical organizations. Justice Blackmun's trimester framework was later rejected by the O'Connor–Souter–Kennedy plurality in Casey, in favor of the "undue burden" analysis still employed by the Court. Contrary to Blackmun, Justice Douglas preferred the first-trimester line. Justice Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to state legislatures, though he joined Blackmun's decision. Justice William J. Brennan Jr. proposed abandoning frameworks based on the age of the fetus and instead allowing states to regulate the procedure based on its safety for the mother.
The majority opinion allowed states to protect fetal life after viability even though a fetus is not a person within the meaning of the Fourteenth Amendment.
An aspect of the decision that attracted comparatively little attention was the Court's disposition of the issues of standing and mootness. Under the traditional interpretation of these rules, Jane Roe's appeal was "moot" because she had already given birth to her child and thus would not be affected by the ruling; she also lacked "standing" to assert the rights of other pregnant women. As she did not present an "actual case or controversy" (a grievance and a demand for relief), any opinion issued by the Supreme Court would constitute an advisory opinion, a practice forbidden by Article III of the United States Constitution.
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 in Southern Pacific Terminal Co. v. ICC. 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."
Justices White and Rehnquist wrote emphatic dissenting opinions. 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 women 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 woman, 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.
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." Though he suggested that 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 the issue of abortion 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 on several of White's points, 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.
From this historical record, Rehnquist concluded, "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."
A statistical evaluation of the relationship of political affiliation to pro-choice and anti-abortion issues shows that public opinion is much more nuanced about when abortion is acceptable than is commonly assumed. The most prominent organized groups that mobilized in response to Roe are the National Abortion Rights Action League and the National Right to Life Committee.
Advocates of Roe describe it as vital to the preservation of women's rights, personal freedom, bodily integrity, and privacy. Advocates have also reasoned that access to safe abortion and reproductive freedom generally are fundamental rights. Some scholars (not including any member of the Supreme Court) have equated the denial of abortion rights to compulsory motherhood, and have argued that abortion bans therefore violate the Thirteenth Amendment:
When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the Thirteenth Amendment….[E]ven if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant.
Supporters of Roe contend that the decision has a valid constitutional foundation in the Fourteenth Amendment, or that the fundamental right to abortion is found elsewhere in the Constitution but not in the articles referenced in the decision.
Every year, on the anniversary of the decision, opponents of abortion march up Constitution Avenue to the Supreme Court Building in Washington, D.C., in the March for Life. Around 250,000 people attended the march until 2010. Estimates put the 2011 and 2012 attendances at 400,000 each, and the 2013 March for Life drew an estimated 650,000 people.
Opponents of Roe assert that the decision lacks a valid constitutional foundation. Like the dissenters in Roe, they maintain that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the legislative process, rather than through an all-encompassing ruling from the Supreme Court.
A prominent argument against the Roe decision is that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm.
In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent or parental notification for minors to obtain abortions; spousal mutual consent laws; spousal notification laws; laws requiring abortions to be performed in hospitals, not clinics; laws barring state funding for abortions; laws banning intact dilation and extraction, also known as partial-birth abortion; laws requiring waiting periods before abortions; and laws mandating that women read certain types of literature and watch a fetal ultrasound before undergoing an abortion. In 1976, Congress passed the Hyde Amendment, barring federal funding of abortions (except in cases of rape, incest, or a threat to the life of the mother) for poor women through the Medicaid program. The Supreme Court struck down some state restrictions 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).
Some opponents of abortion maintain that personhood begins at fertilization or conception, 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."
Perhaps the most notable opposition to Roe comes from Roe herself: In 1995, Norma L. McCorvey revealed that she had become pro-life, and from then until her death in 2017, she was a vocal opponent of abortion.
Justice Blackmun, who authored the Roe decision, stood by the analytical framework he established in Roe throughout his career. Despite his initial reluctance, he became the decision's chief champion and protector during his later years on the Court. Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One argument is that Justice Blackmun reached the correct result but went about it the wrong way. Another is that the end achieved by Roe does not justify its means of judicial fiat.
Justice John Paul Stevens, while agreeing with the decision, has suggested that it should have been more narrowly focused on the issue of privacy. According to Stevens, if the decision had avoided the trimester framework and simply stated that the right to privacy included a right to choose abortion, "it might have been much more acceptable" from a legal standpoint. Justice Ruth Bader Ginsburg had, before joining the Court, criticized the decision for ending a nascent movement to liberalize abortion law through legislation. Ginsburg has also faulted the Court's approach for being "about a doctor's freedom to practice his profession as he thinks best.... It wasn't woman-centered. It was physician-centered." 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 highly cited 1973 article in the Yale Law Journal, Professor John Hart Ely criticized Roe as a decision that "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 legislative movement would have been the correct way to build a more durable consensus in support of abortion rights. William Saletan wrote, "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."
The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the ruling. The "viability" criterion is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.
A Gallup poll conducted in May 2014 indicates that 50% of Americans believe that abortions should be legal under certain circumstances, 28% believe abortion should be legal under any circumstances, and 21% believe that abortion should be illegal in all circumstances.
A Gallup poll conducted in May 2009 indicates that 53% of Americans believe that abortions should be legal under certain circumstances, 23% believe abortion should be legal under any circumstances, and 22% believe that abortion should be illegal in all circumstances. However, in this poll, more Americans referred to themselves as "Pro-Life" than "Pro-Choice" for the first time since the poll asked the question in 1995, with 51% identifying as "Pro-Life" and 42% identifying as "Pro-Choice". Similarly, an April 2009 Pew Research Center poll showed a softening of support for legal abortion in all cases compared to the previous years of polling. People who said they support abortion in all or most cases dropped from 54% in 2008 to 46% in 2009.
In contrast, an October 2007 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?
In reply, 56 percent of respondents indicated favour while 40 percent indicated opposition. The Harris organization concluded from this poll that "56 percent now favours the U.S. Supreme Court decision." Anti-abortion 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.
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 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.
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 the majority reasoning in Roe v. Wade was "warped."
During initial deliberations for Planned Parenthood v. Casey (1992), an initial majority of five Justices (Rehnquist, White, Scalia, Kennedy, and Thomas) were willing to effectively overturn Roe. Kennedy changed his mind after the initial conference, and O'Connor, Kennedy, and Souter joined Blackmun and Stevens to reaffirm the central holding of Roe, saying, "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. [...] These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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." Only Justice Blackmun would have retained Roe entirely and struck down all aspects of the statute at issue in Casey.
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."
During the 1990s, the state of Nebraska attempted to ban a certain second-trimester abortion procedure known as intact dilation and extraction (sometimes called 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. In his dissent, Kennedy described the second trimester abortion procedure that Nebraska was not seeking to prohibit, and thus argued that since this dilation and evacuation procedure remained available in Nebraska, the state was free to ban the other procedure sometimes called "partial birth abortion."
The remaining three dissenters in Stenberg – Rehnquist, Scalia, and Thomas – disagreed again with Roe: "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."
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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 did not have an exception for the health of the woman. 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 clear 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 the majority opinion, asserting 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 of whether the Court's prior decisions in Roe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart remained valid, and instead the Court stated that the challenged statute remained consistent with those past decisions whether or not those decisions remained valid.
Chief Justice John Roberts, Scalia, Thomas, and Alito joined the majority. Justices Ginsburg, Stevens, Souter, and Breyer dissented, contending that the ruling ignored Supreme Court abortion precedent, and also offering an equality-based justification for 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 possibly exceeded the powers of Congress under the Commerce Clause.
In the case of Whole Woman's Health v. Hellerstedt, the most significant abortion rights case before the Supreme Court since Planned Parenthood v. Casey in 1992, the Supreme Court in a 5–3 decision on June 27, 2016, swept away forms of state restrictions on the way abortion clinics can function. The Texas legislature enacted in 2013 restrictions on the delivery of abortions services that created an undue burden for women seeking an abortion by requiring abortion doctors to have difficult-to-obtain "admitting privileges" at a local hospital and by requiring clinics to have costly hospital-grade facilities. The Court struck down these two provisions "facially" from the law at issue — that is, the very words of the provisions were invalid, no matter how they might be applied in any practical situation. According the Supreme Court the task of judging whether a law puts an unconstitutional burden on a woman's right to abortion belongs with the courts and not the legislatures.
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.
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.
After arguing before the Court in Roe v. Wade at the age of 26, Sarah Weddington went on to be a representative in the Texas House of Representatives for three terms. Weddington has also had a long and successful career as General Counsel for the United States Department of Agriculture, Assistant to President Jimmy Carter, lecturer at Texas Wesleyan University, and speaker and adjunct professor at the University of Texas at Austin.
President Richard Nixon did not publicly comment about the decision. In private conversation later revealed as part of the Nixon tapes, Nixon said "There are times when an abortion is necessary, I know that. When you have a black and a white" (a reference to interracial pregnancies) "or a rape." However, Nixon was also concerned that greater access to abortions would foster "permissiveness," and said that "it breaks the family."
Generally, presidential opinion has been split between major party lines. 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. President Donald Trump has publicly opposed the decision, vowing to appoint justices to the Supreme Court who would "automatically" overturn it.
President 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."
Several states have enacted so-called trigger laws which would take effect in the event that Roe v. Wade is overturned, with the effect of outlawing abortions on the state level. Those states include Arkansas, 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 again be in force if Roe were reversed.
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.
The Mississippi Legislature has attempted to make abortion unfeasible without having to overturn Roe v. Wade. The Mississippi law as of 2012 was being challenged in federal courts and was temporarily blocked.
In all, the Roe and Doe rulings impacted laws in 46 states.
Roe v. Wade itself provided abortion rights with an unstable foundation.
To justify their decision the Court made up a new "right", not found in the Constitution: the right to privacy. The founders of course never intended for such rights to exists, as we know privacy is limited in many ways.
The President did not comment directly on the decision.
President George Bush supported abortion rights until 1980, when he switched sides after Ronald Reagan picked Bush as his running mate.
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