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}}.</ref> was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protected the right to have an abortion prior to the point of fetal viability. The decision struck down many State abortion laws, and it sparked an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be.<ref name=mears_01222003>Template:Cite news</ref>Template:Sfnp The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication.
The case was brought by Norma McCorveyTemplate:Mdashunder the legal pseudonym "Jane Roe"Template:Mdashwho, in 1969, became pregnant with her third child. McCorvey wanted an abortion but lived in Texas where abortion was only legal when necessary to save the mother's life. Her lawyers, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. A special three-judge court of the U.S. District Court for the Northern District of Texas heard the case and ruled in her favor.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> The parties appealed this ruling to the Supreme Court. In January 1973, the Supreme Court issued a 7–2 decision in McCorvey's favor holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion. However, it also held that the right to abortion is not absolute and must be balanced against the government's interest in protecting both women's health and prenatal life.Template:SfnpTemplate:Sfnp It resolved these competing interests by announcing a pregnancy trimester timetable to govern all abortion regulations in the United States. The Court also classified the right to abortion as "fundamental", which required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the most stringent level of judicial review in the United States.Template:Sfnp
The Supreme Court's decision in Roe was among the most controversial in U.S. history.<ref>Template:Harvp: "Few decisions in Supreme Court history have provoked the intense controversy that has surrounded the abortion rulings."</ref><ref name="Dworkin 1996">Template:Cite book</ref> Roe was criticized by many in the legal community,<ref name="Dworkin 1996" /><ref>Template:Cite journal</ref>Template:Sfnp including some who thought that Roe reached the correct result but went about it the wrong way,<ref name="Balkin 2001" /><ref name="Roosevelt 2003" /><ref name="Cohen 2005" /> and some called the decision a form of judicial activism.Template:Sfnp Others argued that Roe did not go far enough, as it was placed within the framework of civil rights rather than the broader human rights.<ref name="Ross & Solinger 2017" />
The decision radically reconfigured the voting coalitions of the Republican and Democratic parties in the following decades. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision;<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> polls into the 21st century showed that a plurality and a majority, especially into the late 2010s to early 2020s, opposed overruling Roe.<ref name="Thomson-DeVeaux & Yi 2022" /> Despite criticism of the decision, the Supreme Court reaffirmed Roe's central holding in its 1992 decision, Planned Parenthood v. Casey.Template:Sfnp Casey overruled RoeTemplate:'s trimester framework and abandoned its "strict scrutiny" standard in favor of an "undue burden" test.Template:SfnpTemplate:Sfnp
In 2022, the Supreme Court overruled Roe in Dobbs v. Jackson Women's Health Organization on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition", nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law until Roe.<ref>Template:Cite news</ref>
BackgroundEdit
History of abortion laws in the United StatesEdit
Abortion was a fairly common practice in the history of the United States, and was not always a public controversy.<ref name=Ganong>Template:Cite book</ref><ref name="Hardin 1978">Template:Cite journal</ref><ref name=Brodie>Template:Cite book</ref><ref name="Blackemore 2022">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> At a time when society was more concerned with the serious consequences of women becoming pregnant out of wedlock, family affairs were handled out of public view.<ref name=Ganong/><ref name=Miller>Template:Cite book</ref> The criminality of abortion at common law is a matter of debate by historians and legal scholars.<ref name="Acevado 1979">Template:Cite journal</ref><ref name="Reagan 1997">Template:Cite book</ref><ref>Template:Cite book</ref>
In 1821, Connecticut passed the first state statute legislating abortion in the United States;<ref name="cole" /> it forbade the use of poisons in abortion.<ref name="Hardin 1978" /> After the 1840s, there was an upsurge in abortions. In the 19th century, the medical profession was generally opposed to abortion, which Mohr argues arose due to competition between men with medical degrees and women without one. The practice of abortion was one of the first medical specialties, and was practiced by unlicensed people; well-off people had abortions and paid well. The press played a key role in rallying support for anti-abortion laws.<ref name="Hardin 1978" /> According to James S. Witherspoon, a former briefing attorney for the Court of Appeals for the Third Supreme Judicial District of Texas, abortion was not legal before quickening in 27 out of all 37 states in 1868;<ref name="Witherspoon 1985">"Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment" by James S. Witherspoon, St. Mary's Law Journal, Volume 29, 1985, Part III. Nineteenth-Century Criminal Abortion Statutes, Section B. The Prohibition of Pre-Quickening Attempts and the Elimination of the Quickening Distinction, pages 33–34, (pages 5–6 of the pdf)</ref> by the end of 1883, 30 of the 37 states, six of the ten U.S. territories, and the Kingdom of Hawaiʻi, where abortion had once been common,<ref name="schmitt">Population Policy in Hawaii Template:Webarchive by Robert C. Schmitt, Hawaiian Journal of History, Volume 8, 1974, page 91 (page 2 of the pdf), also see The Penal Code of the Hawaiian Kingdom, Compiled from the Penal Code of 1850 Template:Webarchive, Chapter XII. Causing Abortion—Concealing the Death of an Infant, Honolulu, Oahu: Government Press, 1869, page 19 (page 63 of the pdf)</ref><ref>Historical Ethnography by Marshall Sahlins, Volume 1 of Anahulu: The Anthropology of History in the Kingdom of Hawaii, Part IV: "Kawailoa Society in the Mid-Nineteenth Century", Chapter 9: "Maka'ainana", University of Chicago Press, 1992, page 201; also see "On the Decrease of Population on the Hawaiian Islands" by David Malo, Hawaiian Spectator, Volume 2, April 1839, page 123: "Even the unborn child did not escape, but was put to death for mothers, thinking they should prematurely become old women without having gained property, pierced their unborn, and thus many a child was destroyed before it was born. Others, from the time of conception to the birth of the child made it their business to extinguish its life."</ref> had codified laws that restricted abortion before quickening.<ref name="Witherspoon 1985" /> More than 10 states allowed pre-quickening abortions, before the quickening distinction was eliminated,<ref name="Witherspoon 1985" /> and every state had anti-abortion laws by 1900.<ref name="cole">Cole, George; Frankowski, Stanislaw (1987). Abortion and Protection of the Human Fetus: Legal Problems in a Cross-Cultural Perspective. Leiden, the Netherlands: Martinus Nijhoff Publishers. p. 20. Retrieved April 8, 2008 – via Google Books. "By 1900 every state in the Union had an anti-abortion prohibition."</ref>
In the United States, before specific statutes were made against it, abortion was sometimes considered a common law offense, such as by William Blackstone and James Wilson.<ref>Blackstone, William (1765). "Commentaries". Template:Webarchive. "LifeTemplate:Nbsp... begins in contemplation of law as soon as an infant is able to stir in the mother's womb."</ref><ref>Wilson, James (1790–1792). "Of the Natural Rights of Individuals". Template:Webarchive. "In the contemplation of law, life begins when the infant is first able to stir in the womb."</ref> In all states throughout the 19th and early 20th century, pre-quickening abortions were always considered to be actions without a lawful purpose. This meant that if the mother died, the individual performing the abortion was guilty of murder. This aspect of common law regarded pre-quickening abortions as a type of inchoate offense.<ref>Fact-Checking the Abortion Claims in 'Dobbs v. Jackson Women's Health' Oral Arguments by Lauretta Brown, National Catholic Register, December 3, 2021</ref> Negative liberty rights from common law do not apply in situations caused by consensual or voluntary behavior, which allowed for abortions of fetuses conceived in a consensual manner to be common law offenses.<ref>Symposium on Anita Bernstein's The Common Law Inside the Female Body by David S. Cohen, Northwestern University Law Review, Volume 114, page 145 (page 6 of the pdf)</ref> The majority opinion for Roe v. Wade authored in Justice Harry Blackmun's name would later state that the criminalization of abortion did not have "roots in the English common-law tradition",Template:Sfnp and was thought to return to the more permissive state of pre-1820s abortion laws.<ref name="Hardin 1978"/> One purpose for banning abortion was to preserve the life of the fetus,<ref>The "Right" to an Abortion, the Scope of Fourteenth Amendment Personhood, and the Supreme Court's Birth Requirement by John D. Gorby, Southern Illinois University Law Review, Volume 4, 1979, page 19, (page 20 of the pdf)</ref> another was to protect the life of the mother, another was to create deterrence against future abortions,<ref name="buell">Template:Cite journal</ref> and another was to avoid injuring the mother's ability to have children. Judges did not always distinguish between which purpose was more important.<ref>State v. Howard 32 Vt. 399 (Vt. 1859), November 1859</ref> Rather than arresting the women having the abortions, legal officials were more likely to interrogate them to obtain evidence against the individual doing the abortions.<ref name="Paltrow 17–21">Template:Cite journal</ref> This law enforcement strategy was a response to juries which refused to convict women prosecuted for abortion in the 19th century.<ref>Caught in the Net by Leslie J. Reagan, Slate September 10, 2021</ref> In 1973, Justice Blackmun's opinion stated that "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage".<ref>Roe, 410 U.S. at 130.</ref>
During the 1960s and early 1970s, opposition to abortion was concentrated among members of the political left and the Democratic Party, although feminists within predominately supported legalization. Most liberal Catholics and Mainline Protestants (both of which tended to vote for the Democratic Party) opposed liberalizing laws surrounding abortion while most other Protestants, including evangelicals, supported doing so as a matter of religious liberty, what they saw as a lack of biblical condemnation, and belief in non-intrusive government.<ref name="Williams-2015" /><ref name=":0" /><ref>Template:Cite news</ref><ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
By 1971, elective abortion on demand was effectively available in Alaska, California, Hawaii, New York, Washington, and Washington, D.C.<ref>Template:Cite journal</ref> Some women traveled to jurisdictions where it was legal, although not all could afford to.<ref>Blumenthal, Karen (2020). Jane Against the World: Roe v. Wade and the Fight for Reproductive Rights. New York: Roaring Brook Press.</ref> In 1971, Shirley Wheeler was charged with manslaughter after Florida hospital staff reported her illegal abortion to the police. Wheeler was one of a few women who were prosecuted by their states for abortion.<ref>Dangerous Pregnancies: Mothers, Disabilities, and Abortion in Modern America by Leslie J. Reagan, Berkeley, California: University of California Press, 2010, page 172</ref> She received a sentence of two years probation, and as an option under her probation, chose to move back into her parents' house in North Carolina.<ref name="Paltrow 17–21" /> The Playboy Foundation donated $3,500 to her defense fund and Playboy denounced her prosecution.<ref name="pitzulo157">Bachelors and Bunnies: The Sexual Politics of Playboy by Carrie Pitzulo, University of Chicago Press, page 2011, page 157</ref> The Boston Women's Abortion Coalition raised money and held a rally where attendees listened to speakers from the Women's National Abortion Action Coalition (WONAAC).<ref>Template:Cite news</ref> Her conviction was overturned by the Supreme Court of Florida.<ref name="Paltrow 17–21" />
History of the caseEdit
Sarah Weddington recruited Linda Coffee to help her with abortion litigation. Their first plaintiffs were a married couple; they joined after the woman heard Coffee give a speech.<ref name="question50">Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal by Marian Faux, New York City: Cooper Square Press, 2001, page 39, Roe v. Wade: Abortion and a Woman's Right to Privacy by Melissa Higgins, Chapter 5, Constructing and Filing Roe v. Wade, North Mankato, MN: Abdo Publishing, 2012, page 52, and A Question of Choice by Sarah Weddington, New York: Penguin Books, 1993, page 50</ref> The intended suit would state abortions were medically necessary for the woman. The woman had a neurochemical disorder and it was considered medically necessary that she not give birth or raise children, yet they did not want to abstain from sex, and contraception might fail.<ref name="question50" /> The attorneys were concerned about standing since the woman was not pregnant. Weddington later wrote that they "needed to find a pregnant Texas woman who wanted an abortion and would be willing to be a plaintiff."<ref name="question" /> They also wanted to increase the likelihood that the panel selection would help them win in court. They wanted to present their case to a three-judge panel which included a judge they thought would be sympathetic,<ref name="question" /> which was a possibility only by filing a case in Dallas.<ref name="pragerd" /> If either of the two cases they filed in Dallas were assigned favorably, they intended to ask for the other one to be consolidated with it.<ref name="question">Roe v. Wade: Abortion and a Woman's Right to Privacy by Melissa Higgins, Chapter 5, Constructing and Filing Roe v. Wade, North Mankato, MN: Abdo Publishing, 2012 page 54 and A Question of Choice by Sarah Weddington, New York: Penguin Books, 1993, page 53</ref>
At first, Weddington was unsuccessful in finding a suitable pregnant woman.<ref>A Question of Choice by Sarah Weddington, New York: Penguin Books, 1993, pp. 50–51.</ref><ref>Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal by Marian Faux, New York City: Cooper Square Press, 2001, p. 38.</ref> In June 1969, 21-year-old Norma McCorvey discovered she was pregnant with her third child.<ref>Key Abortion Plaintiff Now Denies She Was Raped by Kenneth B. Noble, The New York Times, September 9, 1987. Retrieved June 26, 2022.</ref><ref>The Lawyers Who Made America: From Jamestown to the White House by Anthony Arlidge, Oxford, United Kingdom and Portland, Oregon: Hart Publishing, 2017, p. 176.</ref> Ordinarily, lawyers are not allowed to directly solicit clients without any prior relationship, but McCorvey's situation qualified for an exception in the no solicitation rule which allows lawyers to solicit new clients for public interest cases.<ref>Revisiting Roe v. Wade: Substance and Process in the Abortion Debate by Margaret G. Farrell and Benjamin N. Cardozo, Indiana Law Journal, Volume 68, Issue 2, spring 1993, section one on Solicitation and Representation", pages 282–283 (pages 15–16 of the pdf)</ref> According to a sworn statement made in 2003, McCorvey asked if she had what was needed to be part of Weddington and Coffee's lawsuit. She recounted being told, "Yes. You're white. You're young, pregnant, and you want an abortion."<ref>Affidavit of Norma McCorvey, U.S. District Court for the Northern District of Texas, Dallas Division, Norma McCorvey, formerly known as Jane Roe, Plaintiff, vs. Henry Wade, Through His Official Successor in Office, William "Bill" Hill, Dallas County District Attorney, Defendant., Civil Action No. 3—3690-B and No. 3-3691-C, June 11, 2003, paragraph 11 on page 5 of 13, affidavit page 000006.</ref><ref>Norma McCorvey, "Jane Roe" Of Roe V. Wade, Is Dead At 69 Template:Webarchive by Sara Murphy, Yahoo!, February 18, 2017. Retrieved June 26, 2022.</ref> Both McCorvey's whiteness and her lower social class were crucial factors in the attorneys' choice to have her as their plaintiff.<ref>Jane Roe Gone Rogue: Norma McCorvey's Transformation as a Symbol of the U.S. Abortion Debate by Christianna K. Barnard, MA thesis, Sarah Lawrence College, May 2018, page 14, (page 32 of the pdf)</ref>
McCorvey recounted that the lawyers asked if she thought abortion should be legal. McCorvey said she did not know. Weddington told her, "It's just a piece of tissue. You just missed your period." This convinced McCorvey that abortion should be legal.<ref>A Woman's Right to an Abortion: Roe v. Wade by D. J. Herda, Berkeley Heights, New Jersey: Enslow Publishing, 2016, page 97 and Affidavit of Norma McCorvey, U.S. District Court for the Northern District of Texas, Dallas Division, Norma McCorvey, formerly known as Jane Roe, Plaintiff, vs. Henry Wade, Through His Official Successor in Office, William "Bill" Hill, Dallas County District Attorney, Defendant., Civil Action No. 3—3690-B and No. 3-3691-C, June 11, 2003, paragraph 9 on pages 4–5 of 13, affidavit pages 000005–000006</ref> She agreed to let them represent her under the impression that she would be able to eventually get a legal abortion.<ref>Jane Roe Gone Rogue: Norma McCorvey's Transformation as a Symbol of the U.S. Abortceion Debate by Christianna K. Barnard, MA thesis, Sarah Lawrence College, May 2018, page 22, (page 40 of the pdf) and I Am Roe: My Life, Roe v. Wade, and Freedom of Choice by Norma McCorvey and Andy Meisler, New York City: HarperCollins, 1994, page 124</ref> She smoked an illegal drug and drank wine so she would not have to think about her pregnancy.<ref>Jane Roe Gone Rogue: Norma McCorvey's Transformation as a Symbol of the U.S. Abortion Debate by Christianna K. Barnard, MA thesis, Sarah Lawrence College, May 2018, page 22, (page 40 of the pdf) and I Am Roe: My Life, Roe v. Wade, and Freedom of Choice by Norma McCorvey and Andy Meisler, New York City: HarperCollins, 1994, page 125</ref> McCorvey gave birth to a daughter at Dallas Osteopathic Hospital on June 2, 1970; the baby, Shelley Lynn Thornton, was adopted by a couple in Texas.<ref>Jane Roe's Baby Tells Her Story by Joshua Prager, The Atlantic, September 9, 2021</ref>
In 1970, Coffee and Weddington filed Roe v. Wade as a lawsuit in the U.S. District Court for the Northern District of Texas on behalf of McCorvey under the legal pseudonym "Jane Roe",<ref name="bothcasenames" /> and they also filed Does v. Wade on behalf of the married couple.<ref name="bothcasenames">Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal by Marian Faux, New York City: Cooper Square Press, 2001, page 85</ref> The defendant for both cases was Dallas County District Attorney, Henry Wade, who represented the State of Texas. Weddington later stated that she "saw Roe as part of a much larger effort by many attorneys" whose collective interests she represented.<ref>A Question of Choice by Sarah Weddington, New York: Penguin Books, 1993, page 154 and Roe Reconsidered by Nina Butts, The Texas Observer, November 13, 1992, page 15</ref> James H. Hallford was a physician who was in the process of being prosecuted for performing two abortions.<ref>Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal by Marian Faux, New York City: Cooper Square Press, 2001, page 93</ref> The Court allowed him to join the suit as a physician-intervenor on behalf of Jane Roe.<ref name="Robert">What does the original Roe v. Wade really say? by Amanda Robert, American Bar Association Journal, May 3, 2022, and Summary of Roe v. Wade at Lawnix.com (Archived October 22, 2012)</ref>
One of the cases was assigned to a panel of judges which included Judge Sarah T. Hughes, who they thought would be sympathetic, and the cases were consolidated.<ref>Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal by Marian Faux, New York City: Cooper Square Press, 2001, page 91 and A Question of Choice by Sarah Weddington, New York: Penguin Books, 1993, page 58</ref> In accordance with the Court's rules, two of the judges hearing the consolidated case were assigned on the basis of their judicial district, and the third judge on the panel was a circuit court judge<ref>Roe v. Wade: Abortion and a Woman's Right to Privacy by Melissa Higgins, Chapter 5, Constructing and Filing Roe v. Wade, North Mankato, MN: Abdo Publishing, 2012, page 55</ref> chosen by the Chief Justice of the United States.<ref>Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal by Marian Faux, New York City: Cooper Square Press, 2001, page 128</ref>
The consolidated lawsuit was heard by a three-judge panel consisting of district court judges Sarah T. Hughes and William McLaughlin Taylor Jr. and appellate judge Irving Loeb Goldberg of the U.S. Court of Appeals for the Fifth Circuit.<ref name="dist" /> Hughes knew Coffee, who clerked for her from 1968 to 1969.<ref name="pragerd">The Untold Dallas Origins of Roe v. Wade by Joshua Prager, D Magazine, January 11, 2022</ref> Additionally, the backgrounds of two other judges also gave Weddington and Coffee hope they would be successful.<ref>Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal by Marian Faux, New York City: Cooper Square Press, 2001, pages 126–127</ref> On June 17, 1970, the three judges unanimously<ref name="dist">Template:Cite court</ref> ruled in McCorvey's favor and declared the Texas law unconstitutional, finding that it violated the right to privacy found in the Ninth Amendment. The court relied on Justice Arthur Goldberg's 1965 concurrence in Griswold v. Connecticut. Yet the Court also declined to grant an injunction against enforcing the law, and ruled against the married couple on the basis that they lacked standing.<ref>What does the original Roe v. Wade really say? by Amanda Robert, American Bar Association Journal, May 3, 2022, Summary of Roe v. Wade at Lawnix.com (Archived October 22, 2012), and {{#invoke:citation/CS1|citation |CitationClass=web }}</ref> Since Wade said he would continue to prosecute people for performing abortions, the lack of an injunction meant that McCorvey could not get an abortion.<ref>Roe v. Wade Case (US), by Merle H. Weiner, Oxford Constitutional Law, August 2016, page 4, Part B. The Factual Backdrop: Access to Abortion in the United States Prior to Roe v Wade, item number 14; At this point McCorvey had been now pregnant for six months.</ref>
Hearing the caseEdit
PostponementEdit
Roe v. Wade reached the Supreme Court when both sides appealed in 1970. It bypassed the Court of Appeals for the Fifth Circuit<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> because 28 USC § 1253 authorizes a direct appeal to the Supreme Court in cases concerning the granting or denial of a civil injunction decided by a three judge panel.<ref>Template:Cite news</ref> The case continued under the name Roe v. Wade instead of being switched to Wade v. Roe. The justices delayed taking action on Roe and a closely related case, Doe v. Bolton, until they had first decided certain other cases. One case they decided first was Younger v. Harris. The justices felt the appeals raised difficult questions on judicial jurisdiction.
Another case was United States v. Vuitch, in which they considered the constitutionality of a District of Columbia statute which banned abortion except when the mother's life or health was endangered. The Court upheld the statute on the grounds that the word "health" was not unconstitutionally vague and placed the burden of proof concerning dangers to the life or health of the mother on the prosecutor instead of on the person who had performed the abortion.<ref>United States v. Vuitch, 402 U.S. 62 (1971), justia.com</ref>
Justice William O. Douglas wrote a lengthy dissenting opinion to this case. He argued that the right to marital privacy and the limitation of family size from Griswold v. Connecticut also applied here, although he acknowledged that "on the other side is the belief of many that the fetus, once formed, is a member of the human family and that mere personal inconvenience cannot justify the fetus' destruction." He also challenged the majority opinion with a series of hypothetical questions asking whether "health" might also include the stigma of having an illegitimate child, anxiety from the pregnancy being unwanted, the physical work of raising a child, the financial drain from the added expense of another child, and far off health risks that may never actually materialize in a similar fashion to how risks were warded off with prophylactic appendectomy.<ref>United States v. Vuitch (1971), No. 84 Argued: January 12, 1971, Decided: April 21, 1971, findlaw.com</ref> Douglas' dissent made a similar legal argument to the one used two years later in Roe v. Wade.<ref>Template:Cite book</ref> The following day after their decision was announced, the court voted to hear both Roe and Doe.Template:Sfnp
According to Blackmun, Stewart felt the cases were a straightforward application of Younger v. Harris, and enough justices agreed to hear the cases to review whether they would be suitable for federal as opposed to only state courts.<ref name=forsythe98>Template:Harvnb</ref> This sort of review was not about the constitutionality of abortion and would not have required evidence, witnesses, or a record of facts.<ref>Template:Harvnb</ref> The oral argument was scheduled by the full Court for December 13, 1971. Before the Court could hear the oral argument, 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. They recommended that the Court continue on as scheduled.Template:Sfnp
Oral argumentEdit
As she began speaking for the oral argument, Sarah Weddington was unaware that the Court had decided to hear the case to decide which courts had jurisdiction to hear it rather than as an attempt to overturn abortion laws in a broad ruling. She began by bringing up constitutional reasons why the Court should overturn Texas's abortion law, but Justice Stewart asked questions directed towards the jurisdiction question instead. Weddington replied that she saw no problem with jurisdiction and continued to talk about a constitutional right to abortion.<ref>The Brethren: Inside the Supreme Court by Bob Woodward and Scott Armstrong, New York: Simon and Schuster, page 1979, page 265</ref> Overall, she spent between 20 and 30 minutes discussing jurisdiction and procedure instead of constitutional issues.<ref name=forsythe98/>
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".<ref name="salon">Sant, Geoffrey. "8 horrible courtroom jokes and their ensuing legal calamities", Salon.com (July 27, 2013): "The title of Worst Joke in Legal History belongs to one of history's highest-profile cases. Defending Texas's abortion restrictions before the Supreme Court, attorney Mr. Jay Floyd decided to open oral argument with a sexist joke." Retrieved August 10, 2010.</ref> 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; abortion rights lawyer Margie Pitts Hames thought that Chief Justice Burger "was going to come right off the bench at him. He glared him down."Template:Sfnmp
McCorvey did not attend either of the oral arguments along with her two lawyers. After talking McCorvey out of getting an illegal abortion and getting her name signed on an affidavit for the lawsuit, Weddington did not speak again with McCorvey until four months after Roe was decided.<ref>Jane Roe Gone Rogue: Norma McCorvey's Transformation as a Symbol of the U.S. Abortion Debate by Christianna K. Barnard, MA thesis, Sarah Lawrence College, May 2018, pages 20–21, (pages 38–39 of the pdf) and Won by Love: Norma McCorvey, Jane Roe of Roe v. Wade, Speaks Out for the Unborn as She Shares Her New Conviction For Life by Norma McCorvey and Gary Thomas, Nashville, Tennessee: Thomas Nelson, 1997, Chapter 5, The Shadow Plaintiff pages 36–37</ref>
Initial discussionsEdit
After the first argument session, Burger assigned the task of writing the Court's opinions for both Roe and Doe to Blackmun.<ref name=schwartz103/> Douglas suggested to Blackmun that Burger assigned the opinions to him out of malicious intention, but Blackmun disagreed. He knew that Burger could not write it himself because the subject of abortion was too controversial, and his opinions might get rejected by the majority. He also understood why the other justices could not be assigned to write the opinions: Douglas was too liberal for the public to accept his word. Likewise, he might split the Court's vote by writing something radical. In addition, the quality of his opinions had suffered recently. Brennan was the only Catholic on the Court, and he would have to face Catholic political groups which were against abortion. If Marshall wrote the opinions, the ruling would be perceived as being directed towards African Americans, and he would have to face the displeasure of African American political groups. Stewart would have trouble going far enough in legalizing abortion.<ref>The Justices Behind Roe v. Wade: The Inside Story, Adapted from The Brethren by Bob Woodward and Scott Armstrong, New York: Simon and Schuster, 2021, page 96</ref>
At this point, Black and Harlan had been replaced by William Rehnquist and Lewis F. Powell Jr., but the first argument had already occurred before they became Supreme Court justices.<ref name="greenhouse81–88"/> Justice Blackmun worked on a preliminary opinion for Roe which argued that Texas's law was unconstitutionally vague.<ref name=schwartz103>Template:Harvp</ref> This approach accommodated the claims of some doctors who were concerned that prosecutors might disagree with them over what constituted "life". Blackmun thought this approach would be a good way to avoid controversy which would come with saying there was a fundamental right to abortion. Brennan and Douglas disagreed with Blackmun and wrote to him that instead he needed to focus on privacy.<ref>Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights by Risa L. Goluboff, Stanford Law Review Volume 62, Issue 5, page 1379 (page 20 of the pdf)</ref> After communicating with the other justices, Blackmun felt that his opinion did not adequately reflect his liberal colleagues' views.<ref name="greenhouse81–88">Template:Harvp</ref> In March 1972, the court issued a ruling in Eisenstadt v. Baird, a landmark case which applied the earlier marital privacy right now also to unmarried individuals.<ref>Defenders of the Unborn: The Pro-life Movement Before Roe v. Wade by Daniel K. Williams, New York: Oxford University Press, page 200</ref>
Douglas wrote to Blackmun in May 1972 that he thought there were four judges who were definitely willing to rule in the majority—himself, Brennan, Stewart, and Marshall.<ref>Constitutional Law for a Changing America: Rights, Liberties, and Justice by Lee Epstein, Kevin T. McGuire, and Thomas G. Walker, 11th edition, London: SAGE Publications, Part Two: Civil Liberties, Chapter Ten: Privacy and Personal Liberty, page 354 and A Question of Choice by Sarah Weddington, New York: Penguin Books, 1993, page 132–133</ref> Blackmun at one point thought all seven justices wanted to vote in the majority.Template:Sfnp
In May 1972, Blackmun proposed that the case be reargued. Justice Douglas threatened to write a dissent from the reargument order because he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold the Texas abortion statutes. He was coaxed out of the action by his colleagues, and instead his dissent was merely mentioned in the reargument order without further statement or opinion.Template:SfnpTemplate:Sfnp The case was reargued on October 11, 1972. Weddington continued to represent the pseudonymous Jane Roe, and Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for Texas.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
A June 1972 memo written by Douglas to his colleagues discussing the case was leaked to and published in The Washington Post before the decision was published.<ref name="leak">Template:Cite news</ref>
Drafting the opinionEdit
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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. He talked daily on the phone with George Frampton, his 28-year-old law clerk who stayed behind in Washington, D.C.<ref name=browder93>Template:Cite book</ref> Frampton researched the history of abortion using a book authored by Lawrence Lader, the founding chairman of what is now called NARAL Pro-Choice America. Blackmun's papers made available since his death contain at least seven citations<ref>Template:Cite book</ref> for Lader's 1966 book, Abortion.<ref name=browder93/> Chapter 16 of his book, "A Blueprint for Changing U.S. Abortion Laws" predicted that if abortion were to be legalized, "the possibility of community opposition is slight".<ref>Abortion by Lawrence Lader, Indianapolis: The Bobbs-Merrill Company, 1966, page 151</ref> Lader also predicted that "If such a theoretical case was carried to a high court, perhaps even the U.S. Supreme Court, and the judges confirmed a broad interpretation of the meaning of a threat to life, undoubtedly a landmark in abortion decisions would be reached."<ref>Abortion by Lawrence Lader, Indianapolis: The Bobbs-Merrill Company, 1966, page 154</ref>
The historical survey for Roe also referenced two articles by Cyril Means,<ref>In the Roe v. Wade (justia.com) majority opinion, "Means I" denotes The Law of New York Concerning Abortion and the Status of the Foetus, 1664–1968: A Case of Cessation of Constitutionality, New York Law Forum, Volume 14, Number 3, Fall 1968; "Means II" denotes The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, New York Law Forum, Volume 17, Number 2, 1971</ref> who served as counsel to NARAL. In the articles, Means misrepresented the common law tradition in ways that were helpful to the Roe side.<ref name="keown">Abortion Distortion: A Review of Dispelling the Myths of Abortion History by Joseph W. Dellapenna by John A. Keown, The Journal of Law, Medicine & Ethics, Volume 35, Issue 2, Summer 2007, page 326; quotes cited to Dispelling the Myths of Abortion History by J. W. Dellapenna, Durham: Carolina Academic Press, 2006, page 684; also cited as footnote 171 on page 30 (page 28 of the pdf) of [1] Template:Webarchive Back to the Future of Abortion Law: RoeTemplate:'s Rejection of America's History and Traditions by John Keown, Issues in Law and Medicine Volume 22, Issue 1, Summer 2006; footnote 171 cites Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade by David J. Garrow, 1994, pages 853–54; in Garrow, the memo is quoted as footnote 41 and cited as "David [Tundermann] to Roy [Lucas], "Legislative Purpose et al.," 5 August 1971, Lucas Box 13."</ref> Roy Lucas, the principal attorney assisting Weddington and Coffee, had previously received a memo from his colleague David M. Tundermann about Means's scholarship. The memo stated that the conclusions in Means's articles "sometimes strain credibility."<ref name=keown/> It also stated:<ref name=keown/>
Where the important thing is to win the case no matter how, however, I suppose I agree with Means's technique: begin with a scholarly attempt at historical research; if it doesn't work, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.
After the Court held the second argument session, 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. Byron White was unwilling to sign on to Blackmun's opinion, and Justice Rehnquist had already decided to dissent.Template:Sfnp
During the drafting process, the justices discussed the trimester framework at great length. Powell had suggested that the point where the state could intervene be placed at viability, which Thurgood Marshall supported as well.Template:Sfnp 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."<ref name=revelations/> In the same memo he suggested that the end of the first trimester seemed more likely to get support from other justices and allowed states the ability to adjust their statutes. He was of the impression that doctors were concerned that recovering abortion patients would take up too many hospital beds, and that abortion patients later than the first trimester were more likely to require hospital beds than those whose fetuses were aborted earlier.<ref name=revelations>Revelations on the Road to Roe by David Garrow, American Lawyer, Volume 22, May 2000, page 4 of the pdf</ref> Contrary to the justices who preferred viability, Douglas preferred the first-trimester line.<ref name=savagelatimes>Template:Cite news</ref> Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to state legislatures, though he joined Blackmun's decision.<ref>Kmiec, Douglas. "Testimony Before Subcommittee on the Constitution, Judiciary Committee, U.S. House of Representatives" (April 22, 1996), page 97, Archived August 21, 2008</ref> William Brennan 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.<ref name="Greenhouse 97">Template:Harvp</ref>
Supreme Court decisionEdit
On January 22, 1973, the Supreme Court issued a 7–2 decision in favor of "Jane Roe" (Norma McCorvey) holding that women in the United States had a fundamental right to choose to have an abortion without excessive government restriction and striking down Texas's abortion ban as unconstitutional. The decision was issued together with a decision in a companion case, Doe v. Bolton, which involved a similar challenge to Georgia's abortion laws.<ref name=mears_01222003/>
Larry Hammond, a law clerk for Powell, gave a Time reporter a copy of the decision "on background", expecting that it would be issued by the court before the next issue of Time was published; however, due to a delay in the decision's release, the text of the decision appeared on newsstands a few hours before it was published by the court. Burger demanded a meeting with TimeTemplate:'s editors and punishment for the leaker.<ref name="leak" /> Powell refused Hammond's resignation, on the grounds that "Hammond had been double-crossed" by the reporter.<ref>Template:Cite book</ref>
Opinion of the CourtEdit
Justice Harry Blackmun authored the opinion of the CourtTemplate:Mdashthe "majority opinion"Template:Mdashand was joined by six other justices: Chief Justice Warren Burger and Justices Potter Stewart, William J. Brennan Jr., William O. Douglas, Thurgood Marshall, and Lewis F. Powell Jr.
MootnessEdit
After reciting the facts of the case, the Court's opinion first addressed several legal questions involving procedure and justiciability. These included mootness, a legal doctrine that prevents American federal courts from hearing cases that have ceased to be "live" controversies because of intervening events.Template:Sfnp Under a normal application of the doctrine, McCorvey's appeal would have been considered moot because she had already given birth to her child and therefore no longer had a pregnancy to abort.<ref>Template:Cite book</ref>
The Court concluded that an established exception to the mootness doctrine allows consideration of cases that are "capable of repetition, yet evading review".<ref>Template:Cite book</ref> Blackmun noted that McCorvey might get pregnant again, and 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."<ref>Roe, 410 U.S. at 125; see also Template:Harvp</ref>
Abortion and right to privacyEdit
After dealing with mootness and standing, the Court proceeded to the main issue of the case: the constitutionality of Texas's abortion law. The Court first surveyed the status of abortion throughout the history of Roman law and the English and early American common law.Template:Sfnp It also reviewed the developments of medical procedures and technology used in abortions.Template:Sfnp
Following its historical surveys, the Court introduced the concept of a constitutional "right to privacy" that it said had been intimated in earlier decisions such as Meyer v. Nebraska and Pierce v. Society of Sisters, which involved parental control over childrearing, and Griswold v. Connecticut, which involved the use of contraception.Template:Sfnp Then, "with virtually no further explanation of the privacy value",Template:Sfnp the Court ruled that regardless of exactly which provisions were involved, the U.S. Constitution and its guarantees of liberty covered a right to privacy that protected a pregnant woman's decision whether to abort a pregnancy.Template:Sfnp
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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, 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 to terminate her pregnancy.{{#if:Roe, 410 U.S. at 153.<ref>Quoted in Template:Harvp.</ref>|{{#if:|}}
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The Court reasoned that outlawing abortions would infringe a pregnant woman's right to privacy for several reasons: having unwanted children "may force upon the woman a distressful life and future"; it may bring imminent psychological harm; caring for the child may tax the mother's physical and mental health; and because there may be "distress, for all concerned, associated with the unwanted child".<ref>Template:Harvp, quoting Roe, 410 U.S. at 153.</ref> However, the Court rejected the notion that this right to privacy was absolute.Template:Sfnp It held instead that a woman's right to have an abortion must be balanced against other government interests, such as protecting maternal health and protecting the life of the fetus.Template:Sfnp The Court held that these government interests were sufficiently compelling to permit states to impose some limits on pregnant women's right to choose to have an abortion.Template:Sfnp
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A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. ... 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.{{#if:Roe, 410 U.S. at 154.|{{#if:|}}
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Texas's lawyers had argued that limiting abortion to situations where the mother's life was in danger was justified because life began at the moment of conception, and therefore the state's governmental interest in protecting prenatal life applied to all pregnancies regardless of their stage.Template:Sfnp The Court said that there was no indication that the Constitution's uses of the word "person" were meant to include fetuses, and it rejected Texas's argument that a fetus should be considered a "person" with a legal and constitutional right to life.Template:Sfnp The Court observed that there was still great disagreement over when an unborn fetus becomes a living being.Template:Sfnp
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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, in this point in the development of man's knowledge, is not in a position to speculate as to the answer.{{#if:Roe, 410 U.S. at 159.<ref>Quoted in Template:Harvp.</ref>|{{#if:|}}
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To balance women's rights to privacy and state governments' interests in protecting mothers' health and prenatal life, the Court created the trimester framework.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref>Template:Cite news</ref> During the first trimester, when it was believed that the procedure was safer than childbirth, the Court ruled that a state government could place no restrictions on women's ability to choose to abort pregnancies other than imposing minimal medical safeguards, such as requiring abortions to be performed by licensed physicians.Template:Sfnp From the second trimester on, the Court ruled that evidence of increasing risks to the mother's health gave states a compelling interest that allowed them to enact medical regulations on abortion procedures so long as they were reasonable and "narrowly tailored" to protecting mothers' health.Template:Sfnp From the beginning of the third trimester on—the point at which a fetus became viable under the medical technology available in the early 1970s—the Court ruled that a state's interest in protecting prenatal life became so compelling that it could legally prohibit all abortions except where necessary to protect the mother's life or health.Template:Sfnp
Having completed its analysis, the Court concluded that Texas's abortion statutes were unconstitutional and struck them down.
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A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.{{#if:Roe, 410 U.S. at 164.|{{#if:|}}
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ConcurrencesEdit
Three justices from the majority filed concurring opinions in the case. Justice Potter Stewart wrote a concurring opinion in which he said that even though the Constitution makes no mention of the right to choose to have an abortion without interference, he thought the Court's decision was a permissible interpretation of the doctrine of substantive due process, which says that the Due Process ClauseTemplate:'s protection of liberty extends beyond simple procedures and protects certain fundamental rights.Template:SfnpTemplate:Sfnp Justice William O. Douglas's concurring opinion described his view that although the Court was correct to find that the right to choose to have an abortion was a fundamental right, he thought it would have been better to derive it from the Ninth AmendmentTemplate:Mdashwhich states that the fact that a right is not specifically enumerated in the Constitution shall not be construed to mean that American people do not possess itTemplate:Mdashrather than through the Fourteenth Amendment's Due Process Clause.Template:SfnpTemplate:Sfnp
Chief Justice Warren Burger wrote a concurrence in which he wrote that he thought it would be permissible to allow a state to require two physicians to certify an abortion before it could be performed.Template:Sfnp His concurrence also states:<ref name=burgerconcurring>Roe v. Wade, Mr. Chief Justice Burger, concurring Template:Webarchive, Landmark Cases, C-SPAN, January 22, 1973</ref>
I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.
This has been interpreted as Chief Justice Burger thinking that medical standards and judgment would restrict the number of abortions. Instead of the law restricting abortions to limited circumstances as pre-Roe, now doctors would get to do the restricting.<ref>Judges as Medical Decision Makers: Is the Cure Worse than the Disease by Alan A. Stone, Cleveland State Law Review, Volume 33, Issue 4, 1984, page 580 (page 3 of the pdf)</ref>
This understanding of Roe appears to be related to several statements in the majority opinion.<ref>Judges as Medical Decision Makers: Is the Cure Worse than the Disease by Alan A. Stone, Cleveland State Law Review, Volume 33, Issue 4, 1984, pages 579–580 (pages 2–3 of the pdf)</ref> Justice Blackmun's majority opinion states, "the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient's pregnancy should be terminated."<ref>Roe, 410 U.S. at 163, justia.com</ref> It also states, "For the stage, prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician."<ref>Roe, 410 U.S. at 164, justia.com</ref> Six days prior to January 22, Justice Blackmun prepared "a transcript of what I shall say, and there should be at least some reason for the press not going all the way off the deep end."<ref name=gorlick/> The unissued news release stated:<ref name=savagelatimes/><ref name=gorlick>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
...Template:Nbspthe Court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician.
These statements appear to indicate that the justices voting in the majority thought that patients had personal physicians. Earlier in American history it was once common for people to have individual doctors, but the nature of doctor-patient relationship had already changed prior to Roe.<ref>Template:Cite journal</ref>
DissentsEdit
Template:Multiple image Two justices, Byron White and William Rehnquist, dissented from the Court's decision.Template:Sfnp White's dissent, which was issued with RoeTemplate:'s companion case, Doe v. Bolton, argued that the Court had no basis for deciding between the competing values of pregnant women and unborn children:
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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.{{#if:Doe, 410 U.S. at 221–22 (White, J., dissenting).<ref name="Doe Case">Doe v. Bolton, 410 U.S. 179 (1973), justia.com</ref>|{{#if:|}}
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White also argued that the legality of abortion, "for the most part, should be left with the people and the political processes the people have devised to govern their affairs."<ref>Template:Harvp, quoting Doe, 410 U.S. at 222 (White, J., dissenting).</ref>
Rehnquist's dissent compared the majority's use of substantive due process to the Court's repudiated use of the doctrine in the 1905 case Lochner v. New York.Template:Sfnp He elaborated on several of White's points and asserted that the Court's historical analysis was flawed.
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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.
{{#if:Roe, 410 U.S. at 174–76 (Rehnquist, J., dissenting).<ref name="Roe">Roe, 410 U.S. at 174–77 (Rehnquist, J., dissenting).</ref><ref>Template:Cite book</ref><ref>"Rehnquist's legacy", The Economist (June 30, 2005).</ref>|{{#if:|}}
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From this historical record, Rehnquist wrote, "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." He concluded "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."<ref>Template:Cite book</ref>
ReceptionEdit
There was a strong response to the decision shortly after it was issued.<ref>Template:Cite journal</ref> The Catholic Church condemned the ruling.<ref name="Chronology">Template:Harvnb</ref> Prominent organized groups that responded to Roe include National Association for the Repeal of Abortion Laws, which became the National Abortion Rights Action League in late 1973 to reflect the Court's repeal of restrictive laws,<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> and the National Right to Life Committee.<ref>Template:Cite journal</ref>
The legal scholar Ronald Dworkin described it as "undoubtedly the best-known case the United States Supreme Court has ever decided."<ref>Template:Cite magazine</ref>
Support for Roe and abortion rightsEdit
1960s–1970sEdit
In the 1960s, there was an alliance between the population control movement and the abortion-rights movement in the United States.<ref name=ziegler98/> Abortion rights were especially supported by younger women within the population control movement.<ref>Template:Harvnb</ref> The cooperation was mostly due to feminists who wanted some of the popularity already enjoyed by the population control movement.Template:Citationneeded In addition, population control advocates thought that legalizing abortion would help solve the coming population crisis that demographers had projected.<ref name=ziegler98/>
In 1973, Hugh Moore's Population Crisis Committee and John D. Rockefeller III's Population Council both publicly supported abortion rights following Roe.<ref name=ziegler117>Template:Harvnb</ref> Previously, public support for abortion rights within the population control movement instead came from less established organizations such as Zero Population Growth.<ref>Template:Harvnb</ref> An exception was Planned Parenthood-World Population, which supported repealing all laws against abortion in 1969.<ref>In 1969, Planned Parenthood-World Population took a position in favor of repealing all laws against abortion; see Gender and Women's Leadership: A Reference Handbook by Karen O'Connor, London: SAGE Publications, 2010, page 744; the Planned Parenthood organization had merged with the World Population Emergency Campaign organization in 1961 to create Planned Parenthood-World Population; see Population Crisis, Hearings Before the Subcommittee on Foreign Aid Expenditures of the Committee on Government Operations, United States Senate, Eighty-Ninth Congress, First Session on S. 1676, June 29; July 9–24, 1965, Part 2-A, page 916; the merger occurred during a shift within the birth control movement away from individual health and towards population control; see Competitive Problems in the Drug Industry, Hearings before the Subcommittee on Monopoly of the Select Committee on Small Business. United States Senate, Ninety-First Congress, First session on Present Status of Competition in the Pharmaceutical Industry, February 24 – March 4, 1970, Part 16, Oral Contraceptives (Volume Two), page 6742</ref> Together, population control and abortion rights advocates voiced the benefits of legalized abortion such as smaller welfare costs, fewer illegitimate births, and slower population growth.<ref name=ziegler98/> At the same time, the use of these arguments put them at odds with civil-rights movement leaders and Black Power activists who were concerned that abortion would be used to eliminate non-whites.<ref name=ziegler98>Template:Harvnb</ref> H. Rap Brown denounced abortion as "black genocide",<ref name=ziegler115>Template:Harvnb</ref> and Dick Gregory said that his "answer to genocide, quite simply, is eight Black kids and another one on the way."<ref>Template:Cite book</ref>
Soon after Roe, the population control movement suffered setbacks, which caused the movement to lose political support and instead appear divisive.<ref>Template:Harvnb</ref> On June 27, 1973, a lawsuit was filed concerning the Relf sisters, 14-year-old Minnie Lee and her 12-year-old sister Alice Lee. A worker at a federally-funded family planning clinic lied to their illiterate mother, saying they would get birth control shots. Instead, the Relf sisters were sterilized without their knowledge or consent.<ref>Relf Sisters Sue for Involuntary Sterilization, Moments in the Civil Rights Movement, Voices of the Civil Rights Movement, Comcast/NBC Universal, April 4, 2015</ref> During the next fifteen months, 80 additional women came forward about their forced sterilizations, all belonging to minority races. Concerns rose that abortions would also become compulsory.<ref name="ziegler117"/> During the 1974 World Population Conference in Bucharest, Romania, most developing nations argued that the developed nations' focus on population growth was an attempt to avoid solving the deeper causes of underdevelopment, such as the unequal structure of international relations.<ref name=dobos/> Instead, they wanted more favorable terms under the New International Economic Order. A draft plan with fertility targets was strongly opposed by the developing countries, which surprised the delegations from the United States, Canada, and Great Britain.<ref name=dobos>Template:Cite journal</ref> The final plan omitted fertility targets and instead stated, "A population policy may have a certain success if it constitutes an integral part of socio-economic development."<ref>Translations on Sub-Saharan Africa, United States Joint Publications Research Service circular #72986, issue number 2074 March 13, 1979, page 15</ref>
As members questioned the political benefits of population control rhetoric, the abortion-rights movement distanced itself from the population control movement.<ref name=ziegler36>Template:Harvnb</ref> In October 1973, Robin Elliott circulated a memo to other Planned Parenthood members concerning opposition to "Planned Parenthood's credibility in its reference to the population problem".<ref name=ziegler36/> Instead, she thought they should use Roe inspired rhetoric about "the reaffirmation of commitment to freedom of choice in parenthood."<ref name=ziegler36/> By 1978, a NARAL handbook denounced population control.<ref>Template:Harvnb</ref>
21st centuryEdit
Into the 21st century, 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. Supporters of Roe contend that even if abortion rights are also supported by another portion of the constitution, the decision in 1973 accurately founds the right in the Fourteenth Amendment. Others support Roe despite concern that the fundamental right to abortion is found elsewhere in the Constitution but not in the portions referenced in the 1973 decision.<ref name="Koppelman">"Forced Labor: A Thirteenth Amendment Defense of Abortion", Archived February 25, 2009, by Andrew Koppelman, Northwestern Law Review, Vol. 84, p. 480 (1990).</ref><ref name="Balkin">What Roe v. Wade Should Have Said; The Nation's Top Legal Experts Rewrite America's Most Controversial decision, Jack Balkin Ed. (NYU Press 2005). Retrieved January 26, 2007</ref> They also tend to believe that the power balance between men and women is unequal, and that issues like access to birth control and political representation affect women's equality.<ref name="Conroy & Thomson-DeVeaux 2022">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
Opinion polls in late 2021 indicated that while a majority of Americans oppose overturning Roe,<ref>Manchester, Julia (December 6, 2021). "Majority oppose overturning Roe v. Wade: poll". The Hill. Retrieved June 26, 2022.</ref> a sizable minority opposed overturning Roe but also desired to make abortion illegal in ways that Roe would not permit. This was attributed to poll respondents misunderstanding Roe v. Wade or misinterpreting the poll question.<ref>Desanctis, Alexandra (December 7, 2021). "Poll: Americans Continue to Misunderstand Roe". National Review. Retrieved June 26, 2022.</ref><ref name="Thomson-DeVeaux & Yi 2022">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> 2018–2019 polls showed that while 60 percent of Americans generally support abortion in the first trimester, this drops to 20 percent for the second trimester, even though Roe protects the right to abortion until the last weeks of the second trimester, and at the same time 69 percent said they would not like to see Roe overturned, compared to 29 percent who said they would like to see Roe overturned.<ref name="Thomson-DeVeaux & Yi 2022"/> Another poll showed that 43 percent of those who said abortion should be illegal in most or all cases opposed overturning Roe, while 26 percent of those who said abortion should be legal in most or all cases supported overturning Roe.<ref name="Jackson 2022">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> Polls also found that men and women have similar views on abortion,<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> which are linked to how people think about motherhood, sex, and women's social roles; supporters of Roe and abortion rights tend to see women's ability to make decisions about their bodies as fundamental to gender equality.<ref name="Conroy & Thomson-DeVeaux 2022"/>
Most polls in the late 2010s and early 2020s showed overwhelming support,<ref name="Thomson-DeVeaux & Yi 2022"/> at between 85 and 90 percent, among Americans that abortion should be legal in at least some circumstances, which varies or drops depending on the specifics.<ref name="Thomson-DeVeaux & Yi 2022"/><ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref name="Durkee 2022">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> A January 2022 CNN poll found a 59% majority of Americans want their state to have laws that are "more permissive than restrictive" on abortion if Roe is overturned, 20% want their state to ban abortion entirely, and another 20% want it to be restricted but not banned.<ref name="Durkee 2022"/> In two March 2022 polls, between 61 and 64 percent of Americans said abortion should be legal in most or all cases, while between 35 and 37 percent said abortion should be illegal in most or all cases.<ref name="Jackson 2022"/><ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> A May 2022 Gallup poll showed that 50% of Americans thought abortions should be legal under certain circumstances, with 35% saying it should be legal under any circumstances, and 15% saying it should be illegal in all circumstances,<ref name="Abortion">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> as well as a record number of Americans who identify as pro-choice.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
Before Roe was overturned in Dobbs v. Jackson Women's Health Organization, a majority of Americans thought that Roe was safe and would not be overturned. Since the draft's leaks showed Roe to be overturned in Dobbs, as happened in June 2022, abortion became a concern and a very important issue for Democrats, who previously lagged behind Republicans on this;<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> some Americans, in particular liberals but also a few conservatives, may have become more aware of the popular support for Roe, which they had previously understated.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> In June 2022, Gallup reported that a 61% majority of Americans say abortion should be legal in all or most cases, while 37% say abortion should be illegal in all or most cases. It also recorded the highest partisan divide since 1995,<ref name="Abortion"/> compared to the mid-1970s and throughout the 1980s when both Democrats and Republicans were closer on the issue.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> That same month, the Congregation L'Dor Va-Dor filed a lawsuit against a new law in Florida that would outlaw abortion after 15 weeks of pregnancy, including in cases of rape or incest. Unlike other legal challenges to abortion restrictions in the United States that generally rely on the right to privacy established by Roe, the synagogue argued that Florida's abortion law violates religious freedom, as "Jewish law says that life begins at birth, not at conception."<ref>Template:Cite news</ref>
Opposition to RoeEdit
Condemnation by Catholic BishopsEdit
Template:Multiple image The Catholic Church condemned the ruling by the Supreme Court.<ref name="Chronology"/> Blackmun wrote in his diary, "Abortion flak—3 Cardinals—Vatican—Rochester wires!"<ref name="Chronology"/>
John Cardinal Krol, the archbishop of Philadelphia who was also the president of the United States Conference of Catholic Bishops and Terence Cardinal Cooke, the archbishop of New York, both issued statements condemning the ruling.<ref name="Cardinals">Template:Cite news</ref> Krol called the ruling "an unspeakable tragedy for this nation" that "sets in motion developments which are terrifying to contemplate."<ref name="Cardinals"/> Cooke called the decision a "horrifying action" and added:<ref name="Cardinals"/>
How many millions of children prior to their birth will never live to see the light of today because of the shocking action of the majority of the United States Supreme Court today?<ref name="Cardinals"/>
Opposition to Roe but support for abortion rightsEdit
Some supporters of abortion rights oppose Roe v. Wade on the grounds that it laid a foundation for abortion in civil rights rather than in human rights, which are broader and would require government entities to take active measures to ensure every woman has access to abortion.<ref name="Ross & Solinger 2017">Template:Cite book</ref>Template:Page needed This particular position is indicated by the use of rhetoric concerning "reproductive justice", which replaces earlier rhetoric centered around "choice", such as the "pro-choice" label.<ref>Template:Cite journal</ref> Reproductive justice proponents contend that factors permitting choice are unequal, thus perpetuating oppression and serving to divide women.<ref>Template:Cite journal</ref> Reproductive justice advocates instead want abortion to be considered an affirmative right that the government would be obligated to guarantee equal access to, even if the women seeking abortions are nonwhite, poor, or live outside major metropolitan areas.<ref>Symposium on Anita Bernstein's The Common Law Inside the Female Body by David S. Cohen, Northwestern University Law Review, Volume 114, page 147 (page 8 of the pdf)</ref> With a broader interpretation of the right to an abortion, it would be possible to require all new obstetricians to be in favor of abortion rights, lest as professionals they employ conscience clauses and refuse to perform abortions.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> In the 1989 decision of Webster v. Reproductive Health Services, the Supreme Court ruled against an affirmative right to nontherapeutic abortions and noted that states would not be required to pay for them.<ref name="Webster"/>
Some in academia have equated the denial of abortion rights to compulsory motherhood, and reason that because of this abortion bans 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. Even 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."<ref name="Koppelman" /> In 1993, a district court rejected an attempt to justify abortion rights apart from Roe and instead upon the basis that pregnancy and childrearing constituted involuntary servitude.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
Opposition to both Roe and abortion rightsEdit
Template:Multiple image 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.<ref>Template:Cite news</ref> Around 250,000 people attended the march until 2010.<ref>Template:Cite news</ref><ref>Template:Cite news</ref> Estimates put the 2011 and 2012 attendances at 400,000 each,<ref name="zenit2011">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> and the 2013 March for Life drew an estimated 650,000 people.<ref name="MonroeNews">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> The march was started in October 1973 by Nellie Gray and the first march took place on January 22, 1974, to mark the first anniversary of Roe v. Wade.
Opponents of Roe say that the decision lacks a valid constitutional foundation.<ref name="Childress1984">Template:Cite book</ref> 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.<ref name="Locay2008">Template:Cite book</ref> Another argument against the Roe decision, as articulated by former president Ronald Reagan, is that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm.<ref>Reagan, Ronald. Abortion and the Conscience of the Nation, (Nelson 1984): "If you don't know whether a body is alive or dead, you would never bury it. I think this consideration itself should be enough for all of us to insist on protecting the unborn." Retrieved January 26, 2007</ref>
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.<ref>Guttmacher Institute, "State Policies in Brief, An Overview of Abortion Laws (PDF)", published January 1, 2007. Retrieved January 26, 2007.</ref> In 1976, Congress passed the Hyde Amendment, barring the federal government from using Medicaid to fund abortions except in cases of rape, incest, or a threat to the life of the mother. 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).<ref>{{#ifeq:no|no |{{#if:Harris v. McRae
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|[[{{{link}}}|Harris v. McRae]],
|{{#ifexist:Harris v. McRae
|{{#ifeq:Harris v. McRae|Roe v. Wade
|Harris v. McRae
|Harris v. McRae
}}
|Harris v. McRae
}},
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|448 |___
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|___
}}{{#if:
|, slip op. at {{{slip}}}
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|[[{{{link}}}|Harris v. McRae]],
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}}.</ref> Some opponents of abortion maintain that personhood begins at fertilization or conception, and should therefore be protected by the Constitution;<ref name="Balkin" /> 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."<ref name="Doe">{{#ifeq:no|no |{{#if:Doe v. Bolton
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|[[{{{link}}}|Doe v. Bolton]],
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|Doe v. Bolton
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|410 |___
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Responses within the legal professionEdit
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.<ref name="Balkin 2001">Balkin, Jack. Bush v. "Gore and the Boundary Between Law and Politics" Template:Webarchive, 110 Yale Law Journal 1407 (2001): "Liberal and feminist legal scholars have spent decades showing that the result was correct even if Justice Blackmun's opinion seems to have been taken from the Court's Cubist period."</ref> Another is that the end achieved by Roe does not justify its means of judicial fiat.<ref name="Cohen 2005">Cohen, Richard. "Support Choice, Not Roe", Washington Post, (October 19, 2005): "If the best we can say for it is that the end justifies the means, then we have not only lost the argument—but a bit of our soul as well." Retrieved January 23, 2007.</ref>
David Garrow said that the decision in Roe and also Doe v. Bolton "owed a great amount of their substance and language" to Justice Blackmun's law clerks, George Frampton and Randall Bezanson. He thought the extent of their contributions were remarkable, and that the clerks exhibited an "unusually assertive and forceful manner" in voicing their views to Justice Blackmun. In his research, it was the earliest significant example he found of this behavior pattern, which grew more consistent later on. In Garrow's evaluation, the clerks' contributions were "historically significant and perhaps decisive" in shaping the two decisions.<ref name=garrow>The Brains Behind Blackmun Template:Webarchive by David J. Garrow, Legal Affairs: The Magazine at the intersection of law and life, May/June 2005</ref>
In response to Garrow, Edward Lazarus said that Justice Blackmun's later clerks like himself did not need as much direction on reproductive rights since they had Justice Blackmun's prior opinions to draw from. Lazarus thought that on at least some occasions when legal formulations were created for opinions to be published in Justice Blackmun's name, the justice himself was not engaged in originating every significant thought pattern that they employed. Lazarus agreed that Garrow's depiction of how the trimester framework came about was an example of one of these occasions.<ref name=garrow/> He concluded: "The problem of excessive clerk delegation was less serious in Blackmun's chambers than Garrow suggests but is also more commonplace among the justices. The modern Supreme Court has deep problems in its decisional culture and the overuse of law clerks is an aspect of this."<ref name=Lazarus>Readers Respond: Justice Blackmun Template:Webarchive, letter by Edward Lazarus, Legal Affairs: The Magazine at the intersection of law and life, May/June 2005</ref>
Justice John Paul Stevens, while agreeing with the decision, 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.<ref>Template:Cite news Rosen notes that Stevens is "the oldest and arguably most liberal justice".</ref> Before joining the Court, Justice Ruth Bader Ginsburg criticized the decision for venturing "too far in the change it ordered".<ref>Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade by Ruth Ginsburg, North Carolina Law Review Volume 63, Number 2, Article 4, 1985, page 381, (page 8 of the pdf)</ref> Had the decision been limited in scope to only permit abortion during certain circumstances, "physicians might have been less pleased with the decision, but the legislative trend might have continued in the direction in which it was headed".<ref>Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade by Ruth Ginsburg, North Carolina Law Review Volume 63, Number 2, Article 4, 1985, page 382, (page 9 of the pdf); page 385 (page 12 of the pdf) reads: "The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." Retrieved January 23, 2007.</ref> After becoming a Supreme Court justice, Ginsburg faulted the Court's approach for being "about a doctor's freedom to practice his profession as he thinks bestTemplate:Nbsp... It wasn't woman-centered. It was physician-centered."<ref>Template:Cite news</ref> Justice Ginsburg thought that Roe was originally intended to complement Medicaid funding for abortions, but this did not happen.<ref name=bazelon/> About Harris v. McRae, which upheld restrictions on Medicaid abortion funding, she said:<ref name=bazelon>The Place of Women on the Court by Emily Bazelon, New York Times Magazine, July 7, 2009</ref>
Yes, the ruling about that surprised me. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn't really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.
Watergate prosecutor Archibald Cox thought the "failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child birth and abortion or new advances in providing for the separate existence of a fetus. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."<ref>Cox, Archibald. The Role of the Supreme Court in American Government, 113–14 (Oxford U. Press 1976), quoted in the statement of Hon. Henry Hyde, A U.S. Representative from the State of Illinois, from the Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate, Washington, D.C.: U.S. Government Printing Office, 1982, page 916; Stuart Taylor has argued that "Roe v. Wade was sort of conjured up out of very general phrases and was recorded, even by most liberal scholars like Archibald Cox at the time, John Harvey Link—just to name two Harvard scholars—as kind of made-up constitutional law." Stuart Taylor Jr, Online News Hour, PBS July 13, 2000</ref>
In a highly cited Yale Law Journal article published in the months after the decision,Template:Sfnp the American legal scholar John Hart Ely criticized Roe as a decision that was disconnected from American constitutional law.<ref>Ely, John Hart. "The Wages of Crying Wolf Template:Webarchive", 82 Yale Law Journal 920 (1973). Retrieved January 23, 2007. Professor Ely "supported the availability of abortion as a matter of policy." See Liptak, Adam. "John Hart Ely, a Constitutional Scholar, Is Dead at 64", The New York Times (October 27, 2003). Ely is generally regarded as having been a "liberal constitutional scholar." Perry, Michael (1999). Template:Google books</ref>
<templatestyles src="Template:Blockquote/styles.css" />
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.Template:Nbsp... The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court's business.Template:Nbsp... [Roe] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.<ref>Template:Harvp, quoted in part in Template:Harvp.</ref>{{#if:|{{#if:|}}
— {{#if:|, in }}Template:Comma separated entries}}
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American constitutional law scholar Laurence Tribe said: "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."<ref>Template:Cite journal Quoted in Template:Cite journal</ref> Centrist-liberal law professors Alan Dershowitz,<ref>Taking the Stand: My Life in the Law by Alan Dershowitz, New York: Broadway Books, 2013, page 433, "Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)...Template:Nbsp."</ref> Cass Sunstein,<ref>Sunstein, Cass, quoted in Roe v. Wade an Issue Ahead of Alito Hearing by Brian McGuire, New York Sun (November 15, 2005): "What I think is that it just doesn't have the stable status of Brown or Miranda because it's been under internal and external assault pretty much from the beginningTemplate:Nbsp... As a constitutional matter, I think Roe was way overreached." Retrieved January 23, 2007. Sunstein is a "liberal constitutional scholar". See "Former U of C law prof on everyone's short court list" by Eric Herman, Chicago Sun-Times (Archived December 23, 2007)</ref> and Kermit Roosevelt III have also expressed disappointment with Roe v. Wade.<ref name="Roosevelt 2003">Roosevelt, Kermit. "Shaky Basis for a Constitutional 'Right'", Washington Post, (January 22, 2003): "[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result.Template:Nbsp... This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional 'person' entitled to the protection of the 14th Amendment.Template:Nbsp... By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values." Retrieved January 23, 2007.</ref>
Jeffrey Rosen,<ref>Template:Cite news</ref><ref>Template:Cite news</ref> as well as Michael Kinsley,<ref>Kinsley, Michael. "Bad choice", The New Republic (June 13, 2004): "Against all odds (and, I'm afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court.Template:Nbsp... [A] freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami." Quoted in Honest pro-choicers admit Roe v. Wade was a horrible decision by Timothy P. Carney, Washington Examiner, January 22, 2011</ref> 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 papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference."<ref>Saletan, William. "Unbecoming Justice Blackmun" Template:Webarchive, Legal Affairs, May/June 2005. Retrieved January 23, 2007. Saletan is a self-described liberal. See Saletan, William. "Rights and Wrongs: Liberals, progressives, and biotechnology", Slate (July 13, 2007).</ref> Benjamin Wittes argued that Roe "disenfranchised millions of conservatives on an issue about which they care deeply."<ref>Wittes, Benjamin. "Letting Go of Roe", The Atlantic Monthly, Jan/Feb 2005. Retrieved January 23, 2007. Wittes also said, "I generally favor permissive abortion laws." He has elsewhere noted, "In their quieter moments, many liberal scholars recognize that the decision is a mess." See Wittes, Benjamin. "A Little Less Conversation", The New Republic November 29, 2007</ref> Edward Lazarus, a former Blackmun clerk who "loved RoeTemplate:'s author like a grandfather", wrote: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.Template:Nbsp... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since RoeTemplate:'s announcement, no one has produced a convincing defense of Roe on its own terms."<ref>Lazarus, Edward. "The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell's Nomination Only Underlined Them", Findlaw's Writ (October 3, 2002). Retrieved January 23, 2007.</ref>
Richard Epstein thought that the majority opinion relied on a book written by William Lloyd Prosser about tort law when it stated that it "is said" recovery of damages was allowed "only if the fetus was viable, or at least quick, when the injuries were sustained".<ref>Roe, 410 U.S. at 161</ref> He compared this to what was in fact written in the book,<ref>The Law of Torts by William Lloyd Prosser, 4th edition, St Paul, Minnesota: West Publishing, 1971, page 337</ref> which was that "when actually faced with the issue for decision, almost all of the jurisdictions have allowed recovery even though the injury occurred during the early weeks of pregnancy, when the child was neither viable nor quick."<ref>Substantive Due Process by any other name: The Abortion Cases by Richard A. Epstein, The Supreme Court Review 1973, University of Chicago Press, 1974, page 174</ref>
Matt Bruenig, lawyer and founder of the People's Policy Project, criticized Roe as being "weaker than normal" and observed that similarly broad interpretations of the Constitution could be used to argue the opposite outcome, saying "right now we have a constitutional right to an abortion—you could also constitutionally ban abortion. If you wanted to, someone could bring a case, file it in a district court, hit the appeal button twice, and then if you get five judges together, the opinion would be the easiest thing in the world to write. You would say, 'the Fourteenth Amendment protects the right to life, liberty, and property without due process and all that shit. So we're looking at that, and we think that abortion takes a life and so we think that in fact states may not permit abortion'. So you could constitutionally ban it and say that no state or federal government is allowed to legalize abortion".<ref>Template:Cite podcast</ref>
The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the ruling.<ref>Template:Harvnb</ref> The "viability" criterion was still in effect, although the point of viability changed as medical science found ways to help premature babies survive.<ref>Stith, Irene. Abortion Procedures, CRS Report for Congress (PDF) (November 17, 1997). Retrieved December 21, 2021.</ref>
Later responses by those involvedEdit
Harry BlackmunEdit
Justice Blackmun, who authored the Roe decision, subsequently had mixed feelings about his role in the case. During a 1974 television interview, he stated that Roe "will be regarded as one of the worst mistakes in the court's history or one of its great decisions, a turning point."<ref name=scsentinel>Legalized abortion a decade later, Santa Cruz Sentinel, Volume 127, Number 13, January 16, 1983 </ref>
In a 1983 interview for a newspaper journalist, he responded that he was "mildly annoyed at those, law professors included, who personalize it" because "it was a decision of the court, not my decision. There were seven votes." As a Methodist, he felt hurt that Methodist pastors wrote condemning letters to him, but as time passed, the letters did not hurt "as much anymore". In defense he responded, "People misunderstand. I am not for abortion. I hope my family never has to face such a decision", noting that "I still think it was a correct decision" because "we were deciding a constitutional issue, not a moral one."<ref name=nytimes1983>Template:Cite news</ref> He described Roe as "a no-win case" and predicted that, "fifty years from now, depending on the fate of the proposed constitutional amendment, abortion probably will not be as great a legal issue. I think it will continue to be a moral issue, however."<ref name=scsentinel/> He reflected that his role in the decision meant he was most known as the "author of the abortion decision". His response was that "we all pick up tags. I'll carry this one to my grave" and "so be it".<ref name=nytimes1983/>
In 1987, Justice Blackmun explained in a letter to Chief Justice Rehnquist:<ref name=forsythe18>Template:Harvnb</ref>
I remember that the old Chief appointed a screening committee, chaired by Potter, to select those cases that could (it was assumed) be adequately heard by a Court of seven. I was on that little committee. We did not do a good job. Potter pressed for Roe v. Wade and Doe v. Bolton to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris. How wrong we were.
In 1991, he regretted how the Court decided to hear Roe and Doe in a televised interview: "It was a serious mistakeTemplate:Nbsp... We did a poor job. I think the committee should have deferred them until we had a full Court."<ref name=forsythe19>Template:Harvnb</ref>
In 1992, he stood by the analytical framework he established in Roe during the subsequent Casey case.<ref name=Blackmun>Casey, 505 U.S. at 930–34 (Blackmun, J., concurring in part and dissenting in part) ("In sum, Roe's requirement of strict scrutiny as implemented through a trimester framework should not be disturbed.").</ref> He often gave speeches and lectures promoting Roe v. Wade and criticizing RoeTemplate:'s critics.Template:Sfnp
Norma McCorveyEdit
A few years after the Supreme Court decided Roe, Norma McCorvey made a claim—which she recanted many years later—that she had a nightmare about "little babies lying around with daggers in their hearts". She said this was the first of recurring nightmares that kept her awake at night.<ref name="autogenerated1">Won by Love: Norma McCorvey, Jane Roe of Roe v. Wade, Speaks Out for the Unborn as She Shares Her New Conviction For Life by Norma McCorvey and Gary Thomas, Nashville, Tennessee: Thomas Nelson, 1997, Chapter 5, The Shadow Plaintiff pages 38–39</ref> She became worried and wondered, "What really, had I done?"<ref name="autogenerated2">Won by Love: Norma McCorvey, Jane Roe of Roe v. Wade, Speaks Out for the Unborn as She Shares Her New Conviction For Life by Norma McCorvey and Gary Thomas, Nashville, Tennessee: Thomas Nelson, 1997, Chapter 5, The Shadow Plaintiff pages 38</ref> and "Well, how do they kill a baby inside a mother's stomach anyway?" McCorvey later claimed:
I couldn't get the thought out of my mind. I realize it sounds very naïve, especially for a woman who had already conceived and delivered three children. Though I had seen and experienced more than my share of the world, there were some things about which I still didn't have a clue—and this was one of them. Ironically enough, Jane Roe may have known less about abortion than anyone else.<ref name="autogenerated3">Won by Love: Norma McCorvey, Jane Roe of Roe v. Wade, Speaks Out for the Unborn as She Shares Her New Conviction For Life by Norma McCorvey and Gary Thomas, Nashville, Tennessee: Thomas Nelson, 1997, Chapter 5, The Shadow Plaintiff pages 39</ref>
McCorvey joined with and accompanied others in the anti-abortion movement. During this time, McCorvey said that she had publicly lied about being raped and apologized for making the false claim.<ref>This Woman and This Man Made History by Lloyd Shearer, Parade magazine, May 8, 1983; for a book which relied on Shearer, see Storm center: the Supreme Court in American politics by David M. O'Brien, New York City: W. W. Norton, 1986, pages 22–24</ref><ref>The woman whose famous abortion case led to the..., UPI archives, September 8, 1987</ref> Norma McCorvey became part of the movement against abortion from 1995 until shortly before her death in 2017.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> In 1998, she testified to Congress:
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In 2002, along with Sandra Cano (Mary Doe) from Doe v. Bolton and Bernard Nathanson, a co-founder of NARAL Pro-Choice America, McCorvey appeared in a television advertisement intended to persuade the Bush administration to nominate Supreme Court Justices who would oppose abortion.<ref>Template:Cite news</ref>
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.<ref>Template:Cite court</ref> 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. However, Jones said she was compelled to agree that the case was moot.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref>Template:Cite journal</ref> On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, and McCorvey's appeal ended.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
In an interview shortly before her death, McCorvey stated that she had taken an anti-abortion position because she had been paid to do so and that her campaign against abortion had been an act. She also stated that it did not matter to her if women wanted to have an abortion and they should be free to choose.<ref name="FRBS-20200519">Template:Cite news</ref><ref name="Reuters">Template:Cite news</ref> Rob Schenck, a Methodist pastor and activist who once had anti-abortion views stated that he and others helped entice McCorvey to claim she changed sides and also stated that what they had done with her was "highly unethical" and he had "profound regret" over the matter.<ref>Lozano, Alicia Victoria. "Anti-abortion rights movement paid 'Jane Roe' thousands to switch sides, documentary reveals" NBC News (May 19, 2020).</ref>
Frank Pavone, a priest with whom McCorvey talked after the interview, reflected after her death that "There was no indication whatsoever, at the end of her life," that she had given up her pro-life positions. Pavone stated that following the interview, McCorvey talked positively with him about a message she wanted him to convey at the next March for Life. The message concerned encouraging young people to oppose abortion.<ref>The 'painful journey' of Jane Roe and the pro-life movement by J.D.Flynn, Catholic News Agency, May 19, 2020 (Archived December 6, 2021)</ref>
Sarah WeddingtonEdit
After arguing in Roe v. Wade at the age of 26, Sarah Weddington was elected to the Texas House of Representatives for three terms. Weddington also was general counsel for the U.S. Department of Agriculture, an assistant to President Jimmy Carter,<ref>Sarah Weddington Exit Interview by Emily Soapes, Carter Presidential Library, January 2, 1981</ref> lecturer at the Texas Wesleyan University School of Law, and speaker and adjunct professor at the University of Texas at Austin.<ref name=Lapinski>Winning Roe v. Wade: Q&A with Sarah Weddington by Valerie Lapinski, Time (January 22, 2013)</ref>
In a 1993 speech for the Institute for Educational Ethics in Oklahoma, Weddington discussed her conduct during Roe and stated, "My conduct may not have been totally ethical. But I did it for what I thought were good reasons."<ref>Tulsa World, May 24, 1993, selection reprinted in The Coyote Chronicle, California State University, San Bernardino, Volume 30, Issue 14, May 29, 1996, page four of the Human Life Alliance Advertising Supplement, (page 21 of the pdf)</ref>
In 1998, she said that the lack of doctors to abort fetuses could undermine Roe: "When I look back on the decision, I thought these words had been written in granite. But I've learned it was not granite. It was more like sandstone. The immediate problem is, where will the doctors come from?"<ref>Consistently Opposing Killing: From Abortion to Assisted Suicide, the Death Penalty, and War by Rachel MacNair and Stephen Zunes, April 2008, Westport, Connecticut: Praeger, page 4, quoted from the February 15, 1998 Milwaukee Journal Sentinel</ref> Weddington died on December 26, 2021.<ref>Sarah Weddington, lawyer in Roe v. Wade case, dies at 76 by Kate McGee, Texas Tribune, December 26, 2021 (Archived December 26, 2021)</ref>
Subsequent judicial developmentsEdit
Roe was embedded in a long line of cases concerning personal liberty in the realm of privacy, since Roe was based on individual liberty cases concerning privacy like Meyer v. Nebraska (1923), Griswold v. Connecticut (1965), Loving v. Virginia (1967) and Eisenstadt v. Baird (1972)<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref name="20220508NYTLiptak">Template:Cite news</ref><ref>Template:Cite news</ref> and became a foundation for individual liberty cases concerning privacy like Lawrence v. Texas (2003) and Obergefell v. Hodges (2015).<ref name="20220508NYTLiptak" /><ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
Two months after the decision in Roe, the Court issued a ruling about school funding in San Antonio Independent School District v. Rodriguez.<ref>San Antonio Independent School District v. Rodriguez and Its Aftermath by Jeffrey S. Sutton, Virginia Law Review, Volume 94, Number 8, December 2008, page 1968 (page 6 of the pdf)</ref> The majority opinion cited Roe v. Wade to assert that privacy itself was a fundamental right, while procreation implicitly counted as "among the rights of personal privacy protected under the Constitution."<ref name=rodriguez33>San Antonio Independent School District v. Rodriguez 411 U.S. 1 (1973) at 33 and footnote 76, justia.com</ref> In his dissenting opinion, Justice Thurgood Marshall stated that Roe v. Wade "reaffirmed its initial decision in Buck v. Bell", and noted where Buck was cited in Roe.<ref name=rodriguez101>San Antonio Independent School District v. Rodriguez 411 U.S. 1 (1973) at 101 (Marshall, J., dissenting), justia.com</ref> He found Roe to be a continuation of the Court's practice of granting only a limited stature to the right to procreate,<ref>In Search of Human Nature: The Decline and Revival of Darwinism in American Social Thought by Carl N. Degler, New York: Oxford University Press, 1991, page 48, footnote; In 1996, literary scholar Roger Shattuck also observed that Roe v. Wade exploited a preexisting lack of protection for procreation in American jurisprudence. See Forbidden Knowledge: From Prometheus to Pornography by Roger Shattuck, San Diego, California: Harcourt Brace and Company, 1996, page 197, footnote</ref> since the Court's decision treated procreation as less important than the right to privacy.<ref name=rodriguez101/> He observed that although past decisions showed strong concern against the state discriminating against certain groups concerning procreation and certain other rights, the "Court has never said or indicated that these are interests which independently enjoy full-blown constitutional protection."<ref name=rodriguez100>San Antonio Independent School District v. Rodriguez 411 U.S. 1 (1973) at 100 (Marshall, J., dissenting), justia.com</ref> Instead, in Roe, "the importance of procreation has indeed been explained on the basis of its intimate relationship with the constitutional right of privacyTemplate:Nbsp..."<ref name=rodriguez101/> Justice Marshall thought that the method used in Rodriguez for determining which rights were more fundamental was wrong, and proposed a different method which would result in procreation receiving greater legal protection.<ref name=rodriguez102103>San Antonio Independent School District v. Rodriguez 411 U.S. 1 (1973) at 102–103 (Marshall, J., dissenting), justia.com</ref>
The legal interaction between Roe v Wade, the Fourteenth Amendment as understood post-Roe, and changing medical technology and standards caused the development of civil suits for wrongful birth and wrongful life claims.<ref>Perfection: The Perfection: The Fatality of Down Syndrome by Mallory Baucom, Undergraduate honors thesis, Gardner-Webb University, December 2018, page 11 (page 12 of the pdf)</ref>Template:Better source needed Not all states permit a parent to sue for wrongful birth<ref>Prenatal Tort Slippage Health Matrix: The Journal of Law-Medicine, Volume 31, Issue 1, 2001, page 222 (page 3 of the pdf)</ref> or a child to sue for wrongful life.<ref name="Fox">Template:Cite journal</ref> The constitutionality of wrongful life claims is controversial within the legal profession, even for states which currently allow them.<ref>What's Unconstitutional About Wrongful Life Claims? Ask Jane Roe... by Bruce R. Parker, Scott C. Armstrong, and Thomasina Poirot, Defense Counsel Journal, Volume 87, Number 3, July 2020, page 2</ref> Pre-Roe, a state court dismissed a lawsuit making both a wrongful birth and life claim, which was unsuccessfully appealed to the Supreme Court of New Jersey.<ref>Gleitman v. Cosgrove 49 N.J. 22 (1967), 227 A.2d 689, justia.com</ref>
Prior to Roe, the Chancery Division of the Superior Court of New Jersey found that a pregnant Jehovah's Witness woman could be ordered to submit to lifesaving blood transfusions due to the state's compelling interest "to save her life and the life of her unborn child."<ref name=raleighfitkinpaulmorgan>Raleigh Fitkin-Paul Morgan Mem. Hosp. v. Anderson 42 N.J. 421 (1964), justia.com.</ref> The Court appointed a legal guardian to represent the unborn child, and ordered the guardian to consent to blood transfusions and to "seek such other relief as may be necessary to preserve the lives of the mother and the child".<ref name=raleighfitkinpaulmorgan/> After Roe, the Fifth District Appellate Court in Illinois ruled that medical professionals had wrongly transfused blood into a pregnant Jehovah's Witness woman on the basis from Roe that the "state's important and legitimate interest becomes compelling at viability" and her fetus was not yet viable.<ref>In re Brown, Fifth Division, December 31, 1997 No. 1-96-2316, justia.com</ref><ref>When a Parent's Religious Belief Endangers Her Unborn Child by Faith Lagay, Virtual Mentor, Volume 7, Issue 5, May 2005, pages 375–378; for general context see Jehovah's Witnesses and blood transfusions</ref>
President Reagan, who supported legislative restrictions on abortion, began making federal judicial appointmentsTemplate:Broken anchor 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 benchTemplate:Nbsp... . 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."<ref>Reagan, Ronald. Interview With Eleanor Clift, Jack Nelson, and Joel Havemann of the Los Angeles Times (June 23, 1986). Retrieved January 23, 2007. (Archived December 21, 2021)</ref>
In addition to Justices White and Rehnquist, Reagan-appointee Justice 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."<ref>{{#ifeq:no|no |{{#if:City of Akron v. Akron Center for Reproductive Health
|{{#if:
|[[{{{link}}}|City of Akron v. Akron Center for Reproductive Health]],
|{{#ifexist:City of Akron v. Akron Center for Reproductive Health
|{{#ifeq:City of Akron v. Akron Center for Reproductive Health|Roe v. Wade
|City of Akron v. Akron Center for Reproductive Health
|City of Akron v. Akron Center for Reproductive Health
}}
|City of Akron v. Akron Center for Reproductive Health
}},
}}
}}{{#if:|No. {{#ifeq:|no
|{{{docket}}},
|{{#switch:{{{source}}}
|f = {{{docket}}}
|#default = {{{docket}}}
}},
}}
}}{{#if:462
|462 |___
}} {{#ifeq:|no
|US |U.S.
}} {{#if:|({{{5}}} {{{4}}}) }}{{#if:416
|{{#ifeq:|no
|416{{#if:|, |}}
|{{#switch:
|f = 416{{#if:|, }}
|o = 416{{#if:|, }}
|w = 416{{#if:|, }}
|#default = 416{{#if:|, }}
}}
}}
|___
}}{{#if:
|, slip op. at {{{slip}}}
}}{{#if:1983| (1983) }} |{{#if:City of Akron v. Akron Center for Reproductive Health
|{{#if:
|[[{{{link}}}|City of Akron v. Akron Center for Reproductive Health]],
|City of Akron v. Akron Center for Reproductive Health,
}}
}}{{#if:462
|462 {{#ifeq:|no
|US
|U.S.
}}
|}}{{#if:
|at
|{{#if:
|slip op. at {{{slip}}}
|at ___
}}
}} }}{{#if:
| ({{{dissenter}}}, {{#if:
|{{{dissent-type}}}
|dissenting
}})
|{{#if:
| ({{{concurrer}}}, {{#if:
|{{{concurrence-type}}}
|concurring
}})
}}
}}.</ref> Shortly before his retirement, Chief Justice Warren Burger suggested in 1986 that Roe be "reexamined";<ref name="Thornburgh">{{#ifeq:no|no |{{#if:Thornburgh v. American College of Obstetricians and Gynecologists
|{{#if:
|[[{{{link}}}|Thornburgh v. American College of Obstetricians and Gynecologists]],
|{{#ifexist:Thornburgh v. American College of Obstetricians and Gynecologists
|{{#ifeq:Thornburgh v. American College of Obstetricians and Gynecologists|Roe v. Wade
|Thornburgh v. American College of Obstetricians and Gynecologists
|Thornburgh v. American College of Obstetricians and Gynecologists
}}
|Thornburgh v. American College of Obstetricians and Gynecologists
}},
}}
}}{{#if:|No. {{#ifeq:|no
|{{{docket}}},
|{{#switch:{{{source}}}
|f = {{{docket}}}
|#default = {{{docket}}}
}},
}}
}}{{#if:476
|476 |___
}} {{#ifeq:|no
|US |U.S.
}} {{#if:|({{{5}}} {{{4}}}) }}{{#if:747
|{{#ifeq:|no
|747{{#if:|, |}}
|{{#switch:
|f = 747{{#if:|, }}
|o = 747{{#if:|, }}
|w = 747{{#if:|, }}
|#default = 747{{#if:|, }}
}}
}}
|___
}}{{#if:
|, slip op. at {{{slip}}}
}}{{#if:1986| (1986) }} |{{#if:Thornburgh v. American College of Obstetricians and Gynecologists
|{{#if:
|[[{{{link}}}|Thornburgh v. American College of Obstetricians and Gynecologists]],
|Thornburgh v. American College of Obstetricians and Gynecologists,
}}
}}{{#if:476
|476 {{#ifeq:|no
|US
|U.S.
}}
|}}{{#if:
|at
|{{#if:
|slip op. at {{{slip}}}
|at ___
}}
}} }}{{#if:
| ({{{dissenter}}}, {{#if:
|{{{dissent-type}}}
|dissenting
}})
|{{#if:
| ({{{concurrer}}}, {{#if:
|{{{concurrence-type}}}
|concurring
}})
}}
}}.</ref> 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 Justice Lewis Powell was Justice Anthony Kennedy.
The justices voting in the majority on the Federal Constitutional Court in pre-unification West Germany rejected the trimester framework in the German Constitutional Court abortion decision, 1975 on the basis that development during pregnancy is a continuous whole rather than made up of three trimesters. The Court found that the right to life extends also to the unborn and that life begins on the fourteenth day after conception.<ref>Abortion and Constitution: United States and West Germany by Donald P. Kommers, 1977, page 267 (page 14 of the pdf)</ref> It also found that the liberties of pregnant mothers were qualified by the existence of another life inside them. The Court found that "A compromise which guarantees the protection of the life of the one about to be born and permits the pregnant woman the freedom of abortion is not possible since the interruption of pregnancy always means the destruction of the unborn life."<ref name=rauch/> It ruled that the fetus must be protected, and the first responsibility for this lies with the mother, with a second responsibility in the hands of the legislature.<ref>Abortion and Constitution: United States and West Germany by Donald P. Kommers, 1977, page 268 (page 15 of the pdf)</ref> The Court allowed for a balancing of rights between the mother and unborn child, but required that the rights of each be considered within a framework which acknowledged the supreme, fundamental value of human life. Legislation allowing abortion could be constitutional if the rights of the unborn persons were acknowledged in this manner.<ref>Abortion and Constitution: United States and West Germany by Donald P. Kommers, 1977, page 269 (page 16 of the pdf)</ref>
Two minority justices in the ruling for the German Constitutional Court abortion decision in 1975 remarked that "the Supreme Court of the United States has even regarded punishment for the interruption of pregnancy, performed by a physician with the consent of the pregnant woman in the first third of pregnancy, as a violation of fundamental rights. This would, according to German constitutional law, go too far indeed."<ref name=rauch>Template:Cite journal</ref>
In 1988, the Supreme Court of Canada used the rulings in both Roe and Doe v. Bolton as grounds to find Canada's federal law limiting abortions to certified hospitals unconstitutional in R. v. Morgentaler.<ref>R. v. Morgentaler, 1 S.C.R. 30 (1988), V/lex</ref>
Planned Parenthood v. DanforthEdit
In Planned Parenthood v. Danforth, 428 U.S. 52 (1976),<ref>{{#ifeq:no|no |{{#if:Planned Parenthood of Central Missouri v. Danforth
|{{#if:
|[[{{{link}}}|Planned Parenthood of Central Missouri v. Danforth]],
|{{#ifexist:Planned Parenthood of Central Missouri v. Danforth
|{{#ifeq:Planned Parenthood of Central Missouri v. Danforth|Roe v. Wade
|Planned Parenthood of Central Missouri v. Danforth
|Planned Parenthood of Central Missouri v. Danforth
}}
|Planned Parenthood of Central Missouri v. Danforth
}},
}}
}}{{#if:|No. {{#ifeq:|no
|{{{docket}}},
|{{#switch:{{{source}}}
|f = {{{docket}}}
|#default = {{{docket}}}
}},
}}
}}{{#if:428
|428 |___
}} {{#ifeq:|no
|US |U.S.
}} {{#if:|({{{5}}} {{{4}}}) }}{{#if:52
|{{#ifeq:|no
|52{{#if:|, {{{pin}}}|}}
|{{#switch:
|f = 52{{#if:|, {{{pin}}}}}
|o = 52{{#if:|, {{{pin}}}}}
|w = 52{{#if:|, {{{pin}}}}}
|#default = 52{{#if:|, {{{pin}}}}}
}}
}}
|___
}}{{#if:
|, slip op. at {{{slip}}}
}}{{#if:1976| (1976) }} |{{#if:Planned Parenthood of Central Missouri v. Danforth
|{{#if:
|[[{{{link}}}|Planned Parenthood of Central Missouri v. Danforth]],
|Planned Parenthood of Central Missouri v. Danforth,
}}
}}{{#if:428
|428 {{#ifeq:|no
|US
|U.S.
}}
|}}{{#if:
|at {{{pin}}}
|{{#if:
|slip op. at {{{slip}}}
|at ___
}}
}} }}{{#if:
| ({{{dissenter}}}, {{#if:
|{{{dissent-type}}}
|dissenting
}})
|{{#if:
| ({{{concurrer}}}, {{#if:
|{{{concurrence-type}}}
|concurring
}})
}}
}}.</ref> the plaintiffs challenged a Missouri statute which regulated abortion. In the regulations for abortions on demand, the state required prior written consent from a parent if the patient was a minor or a spouse if the patient was married. For pregnancies at 12 weeks and later, the statute also banned saline abortions,<ref name=Young/> in which chemicals are injected into the amniotic sac to burn the fetus.<ref>'I survived an abortion attempt' by Jane Elliott, December 6, 2005, BBC News</ref> The portions of the statute involving parental or spousal consent and prohibiting saline abortions were struck down.<ref name=Young>Template:Cite journal</ref>
Floyd v. AndersEdit
In Floyd v. Anders, 440 F. Supp. 535 (D.S.C. 1977), South Carolina attempted to prosecute a doctor for illegal abortion and murder after he attempted to abort an African American boy at 25 weeks. During the abortion, the boy was born alive and survived for 20 days before dying.<ref>The Root and Branch of Roe v. Wade by John T. Noonan Jr., Nebraska Law Review, Volume 63, Issue 4, Article 4, 1984, page 674, (page 8 of the pdf)</ref> His prosecution was blocked by Judge Clement Haynsworth, and shortly afterwards by a unanimous three judge panel for the U.S. District Court for the District of South Carolina. Judge Haynsworth, writing for the panel, stated "Indeed, the Supreme Court declared the fetus in the womb is neither alive nor a person within the meaning of the Fourteenth Amendment."<ref>Floyd v. Anders, 440 F. Supp. 535 (D.S.C. 1977) at 539, justia.com</ref> John T. Noonan criticized this from an anti-abortion perspective, stating that "Judge Haynsworth had replaced the Supreme Court's test of potential ability to live with a new test of actual ability to live indefinitely. He also had spelled out what was implied in Roe v. Wade but never actually stated there. For the American legal systems the fetus in the womb was not alive."<ref>The Abortion Liberty by John T. Noonan Jr., Human Life Review, Summer 1979, Volume 5, Number 3, page 74</ref> The standard in Roe for viability outside the womb required a "capability of meaningful life".<ref name=roe163>Roe, 410 U.S. at 163; "Early death as a management option" became a medical practice for disabled infants; the practice was legally defended under the right to privacy. Early death for infants was considered "a late abortion" but became regulated by the Baby Doe Law. See To be liberal and pro-life; Nat Hentoff, Champion of 'Inconvenient Life' by Cathryn Donohoe, Washington Times, November 6, 1989, which discusses the journalism of Nat Hentoff.</ref> Without this capability, the state had no compelling "important and legitimate interest in potential life".<ref name=roe163/>
Webster v. Reproductive Health ServicesEdit
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 particular, the Court found that the ability to have a nontherapeutic abortion was not an affirmative right of the sort that required the state to pay for it.<ref name="Webster">{{#ifeq:no|no |{{#if:Webster v. Reproductive Health Services
|{{#if:
|[[{{{link}}}|Webster v. Reproductive Health Services]],
|{{#ifexist:Webster v. Reproductive Health Services
|{{#ifeq:Webster v. Reproductive Health Services|Roe v. Wade
|Webster v. Reproductive Health Services
|Webster v. Reproductive Health Services
}}
|Webster v. Reproductive Health Services
}},
}}
}}{{#if:|No. {{#ifeq:|no
|{{{docket}}},
|{{#switch:{{{source}}}
|f = {{{docket}}}
|#default = {{{docket}}}
}},
}}
}}{{#if:492
|492 |___
}} {{#ifeq:|no
|US |U.S.
}} {{#if:|({{{5}}} {{{4}}}) }}{{#if:490
|{{#ifeq:|no
|490{{#if:|, |}}
|{{#switch:
|f = 490{{#if:|, }}
|o = 490{{#if:|, }}
|w = 490{{#if:|, }}
|#default = 490{{#if:|, }}
}}
}}
|___
}}{{#if:
|, slip op. at {{{slip}}}
}}{{#if:1989| (1989) }} |{{#if:Webster v. Reproductive Health Services
|{{#if:
|[[{{{link}}}|Webster v. Reproductive Health Services]],
|Webster v. Reproductive Health Services,
}}
}}{{#if:492
|492 {{#ifeq:|no
|US
|U.S.
}}
|}}{{#if:
|at
|{{#if:
|slip op. at {{{slip}}}
|at ___
}}
}} }}{{#if:
| ({{{dissenter}}}, {{#if:
|{{{dissent-type}}}
|dissenting
}})
|{{#if:
| ({{{concurrer}}}, {{#if:
|{{{concurrence-type}}}
|concurring
}})
}}
}}.</ref> In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.<ref name="Webster"/>
In concurring opinions, Justice O'Connor refused to reconsider Roe, and Justice Antonin Scalia criticized the Court and Justice O'Connor for not overruling Roe.<ref name="Webster"/> Justice Blackmun stated in his dissent that Justices 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."<ref name="Webster"/> White had recently opined that the majority reasoning in Roe v. Wade was "warped."<ref name="Thornburgh"/>
Planned Parenthood v. CaseyEdit
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. Justice Kennedy changed his mind after the initial conference,<ref>Template:Cite news</ref> and Justices O'Connor, Kennedy, and Souter joined Justices Blackmun and Stevens to reaffirm the central holding of Roe,Template:Sfnp but instead of justifying the liberty to abort as being based on privacy as in Roe, it justified the liberty in a broader manner. The opinion asserted an individual's liberty to choose concerning family life and also protection from legal enforcement intended to maintain traditional sex roles, writing,<ref>Before Roe v. Wade by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012, pages 260–261 (pages 276–277 of the pdf)</ref> "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.Template:Nbsp..."<ref>Casey, 505 U.S. at 55.</ref> and against the state insisting "upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."<ref>Casey, 505 U.S. at 56.</ref>
The plurality of justices stated that abortion-related legislation should be reviewed based on the undue burden standard instead of the strict scrutiny standard from Roe.<ref>The Casey Undue Burden Standard: Problems Predicted and Encountered, and the Split over the Salerno Test by Ruth Burdick, Hastings Constitutional Law Quarterly, Volume 23, Issue 3, Article 8, pages 830–832, (pages 7–9 of the pdf)</ref>
The plurality also found that a fetus was now viable at 23 or 24 weeks rather than at the 28-week line from 1973.<ref>Casey, 505 U.S. at 6.</ref> They also felt that fetal viability was "more workable" than the trimester framework.<ref>Casey, 505 U.S. at 95.</ref> They abandoned the trimester framework due to two basic flaws: "in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in Roe."<ref>Casey, 505 U.S. at 102.</ref> Only Justice Blackmun wanted to retain Roe entirely and issue a decision completely in favor of Planned Parenthood.<ref name=Blackmun/> Prior to this, he had considered a Pennsylvania viability-based law to be unconstitutionally vague in his majority opinion for Colautti v. Franklin.<ref>Colautti v. Franklin, 439 U.S. 379 (1979), justia.com, "The viability determination requirement of § 5(a) is void for vagueness."</ref>
Justice Scalia's dissent asserted that abortion is not a liberty protected by the Constitution for the same reason bigamy was not protected either: because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed.<ref>Casey, 505 U.S. at 393–394 (Scalia, J., dissenting).</ref> He also asked:<ref>Casey, 505 U.S. at 989 n.5 (Scalia, J., concurring in part and dissenting in part).</ref>
Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.
Stenberg v. CarhartEdit
During the 1990s, Nebraska enacted a law banning partial-birth abortion. The law allowed another second-trimester abortion procedure known as dilation and evacuation. In 2000, the Supreme Court struck down the law by a 5–4 vote in Stenberg v. Carhart, with Justice Stephen Breyer writing for the majority that sometimes partial-birth abortion "would be the safest procedure".<ref>Stenberg v. Carhart (99–830) 530 U.S. 914 (2000), Opinion of the Court, law.cornell.edu</ref> Justice O'Connor wrote a concurrence stating Nebraska was actually banning both abortion methods.<ref>"and it proscribes not only the D&X procedure but also the D&E procedure" Stenberg v. Carhart (99–830) 530 U.S. 914 (2000), O'Connor, J., concurring, law.cornell.edu</ref> Justices Ginsburg and Stevens joined each other's concurrences. Justice Stevens stated that "the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the otherTemplate:Nbsp... is simply irrational."<ref>Stenberg v. Carhart (99–830) 530 U.S. 914 (2000), Stevens, J., concurring, law.cornell.edu</ref> Justice Ginsburg stated that the "law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."<ref>Stenberg v. Carhart (99–830) 530 U.S. 914 (2000), Ginsburg, J., concurring, law.cornell.edu</ref>
Justice Thomas's dissent stated, "The 'partial birth' gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body."<ref>Stenberg v. Carhart (99–830) 530 U.S. 914 (2000), Thomas, J., dissenting, law.cornell.edu</ref> Justice Scalia joined Justice Thomas's dissent and also wrote his own, stating that partial-birth abortion is "so horrible that the most clinical description of it evokes a shudder of revulsion" and that this case proved Casey was "unworkable".<ref>Stenberg v. Carhart (99–830) 530 U.S. 914 (2000), Scalia, J., dissenting, law.cornell.edu</ref> Chief Justice Rehnquist joined the two dissents by Justices Scalia and Thomas.<ref>Stenberg v. Carhart (99–830) 530 U.S. 914 (2000), Rehnquist, C. J., dissenting, law.cornell.edu</ref>
Justice Kennedy, who had co-authored Casey, dissented in Stenberg. He described in graphic detail exactly how a fetus dies while being dismembered during a dilation and evacuation procedure. He reasoned that since Nebraska was not seeking to prohibit it, the state was free to ban partial-birth abortion.<ref name="Stenberg">{{#ifeq:no|no |{{#if:Stenberg v. Carhart
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}} ("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.").</ref>
Gonzales v. CarhartEdit
In 2003, Congress passed the Partial-Birth Abortion Ban Act,<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> which led to a lawsuit in the case of Gonzales v. Carhart.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> The Court 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.<ref name=":2">Template:Cite book</ref> The membership of the Court changed after Stenberg, with Chief Justice John Roberts and Justice Samuel Alito replacing Chief Justice Rehnquist and Justice O'Connor.<ref name=":3">Template:Cite book</ref><ref name=":4">Template:Cite news</ref> The ban at issue in Gonzales v. Carhart was similar to the one in Stenberg,<ref name=":2" /> but had been adjusted to comply with the Court's ruling.<ref>Gonzales v. Carhart, 550 U.S. 124 (2007), justia.com, "Congress, it is apparent, responded to these concerns because the Act departs in material ways from the statute in Stenberg."</ref>
On April 18, 2007, a 5 to 4 decision upheld the constitutionality of the Partial-Birth Abortion Ban Act.<ref name=":4" /> Justice Kennedy wrote the majority opinion that Congress was within its power to ban partial-birth abortion. The Court left the door open for as-applied challenges.<ref>Gonzales v. Carhart, 550 U.S. 124 (2007), justia.com, "While it found that it was not facially unconstitutional, it did not reject the possibility of an as-applied challenge."</ref> The opinion did not address whether Casey remained valid. Instead it only assumed Casey was valid "for the purposes of this opinion".<ref>Gonzales v. Carhart, 550 U.S. 124 (2007), justia.com, "We assume the following principles for the purposes of this opinion. Before viabilityTemplate:Nbsp... Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar."</ref>
Chief Justice John Roberts and Justices Scalia, Thomas, and Alito joined the majority. Justice Thomas filed a concurring opinion, joined by Justice Scalia, contending that the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed.<ref>Concurrence (Thomas), Gonzales v. Carhart, 550 U.S. 124 (2007), justia.com,</ref> They also noted that the Partial-Birth Abortion Ban Act may have exceeded the powers of Congress under the Commerce Clause but that the question was not raised.<ref>Template:Cite book</ref>
Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, dissented,<ref name=":3" /> contending that the ruling ignored precedent and that abortion rights should instead be justified by equality.<ref name=":4" />
Dubay v. WellsEdit
Dubay v. Wells was a 2006 paternity case where a man argued he should not have to pay child support for a child he did not want to parent. The case was billed as "Roe v. Wade for men".<ref>The National Center For Men, p.7 Template:Webarchive.</ref>
On March 9, 2006, Dubay filed a lawsuit before the United States District Court for the Eastern District of Michigan. Michigan's Attorney General, Joel D. McGormley, made a motion to have the case dismissed. On July 17, 2006, District Court Judge David Lawson agreed and dismissed Dubay's lawsuit.<ref>Dubay v. Wells Template:Webarchive 442 F.Supp.2d 404 (E. D. Mich., 2006)</ref> He appealed it once, to the United States Court of Appeals for the Sixth Circuit, which also dismissed it, and stated:
Dubay's claim that a man's right to disclaim fatherhood would be analogous to a woman's right to abortion rests upon a false analogy. In the case of a father seeking to opt out of fatherhood and thereby avoid child support obligations, the child is already in existence and the state therefore has an important interest in providing for his or her support.<ref>{{#invoke:citation/CS1|citation
|CitationClass=web
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Whole Woman's Health v. HellerstedtEdit
In 2013, the Texas legislature enacted restrictions which required abortion doctors to have admitting privileges at a local hospital and required abortion clinics to have facilities equivalent to others which conducted outpatient surgery.<ref name=wholesyllabus/> On June 27, 2016, the Supreme Court in a 5–3 decision for Whole Woman's Health v. Hellerstedt struck down these restrictions.<ref name=wholesyllabus>Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016), justia.com</ref>
The majority opinion by Justice Breyer struck down these two provisions of Texas law in a facial manner—that is, the very words of the provisions were invalid, no matter how they might be applied in any practical situation. The ruling also stated that the task of judging whether a law puts an undue burden on a woman's right to abortion belongs with the courts and not the legislatures.<ref name="20160627SCOTUSDenniston">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
Box v. Planned ParenthoodEdit
In 2016, Indiana passed House Bill 1337, enacting a law which regulated what is done with fetal remains and banning abortion for sexist, racist, or ableist purposes.<ref>Template:Cite journal</ref> In its unsigned 2019 ruling for Box v. Planned Parenthood of Indiana and Kentucky, Inc., the U.S. Supreme Court upheld the regulations about fetal remains, but declined to hear the remainder of the law, which had been blocked by lower courts.<ref>Box v. Planned Parenthood of Indiana and Kentucky, Inc., oyez.org, accessed January 13, 2022</ref> Justice Ginsburg dissented from the part of the ruling about fetal remains on the basis that the regulations violated Casey.<ref>18-483 Box v. Planned Parenthood of Indiana and Kentucky, Inc., May 28. 2019, Opinion of Ginsburg, J. concurring in part and dissenting in part, pages 1–2 (pages 25–26 of the pdf)</ref> She also criticized Justice Thomas over his use of the word "mother" in his concurrence.<ref>Template:Cite book</ref>
Justice Sotomayor stated that she wished the Court would not have heard the case at all.<ref>18-483 Box v. Planned Parenthood of Indiana and Kentucky, Inc., May 28. 2019, Sotomayor, per curiam, page 4, (page 4 of the pdf)</ref> Justice Thomas wrote a concurring opinion which expressed concern that the theory presented in Freakonomics echoed the views of the eugenics movement.<ref>18-483 Box v. Planned Parenthood of Indiana and Kentucky, Inc., May 28. 2019, Opinion of Thomas, J., concurring, page 18 (page 22)</ref> He warned that "a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement". He predicted, "Although the Court declines to wade into these issues today, we cannot avoid them forever."<ref>18-483 Box v. Planned Parenthood of Indiana and Kentucky, Inc., May 28. 2019, Opinion of Thomas, J., concurring, pages 20–21 (pages 24–25)</ref>
Whole Woman's Health v. JacksonEdit
In 2021, the state of Texas devised a legal workaround to Roe that allowed it to successfully outlaw abortion at six weeks of pregnancy despite the continued existence of Roe and Casey. In the Texas Heartbeat Act, the legislature created a novel enforcement mechanism that bars state officials from enforcing the statute and authorizes private individuals to sue anyone who performs or assists an illegal abortion.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref name="Tavernise">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> Because the Act is enforced by private citizens rather than government officials, there are no state officials that abortion providers can sue to stop the enforcement of the law, and they cannot obtain judicial relief that will stop private lawsuits from being initiated against them.<ref name="Jackson">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> This has produced an end-run around Roe because the threat of private civil-enforcement lawsuits has forced abortion providers to comply with the Act despite its incompatibility with the Supreme Court's abortion pronouncements.<ref name="Gershman3">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref>Template:Cite news</ref> Other states have copied this enforcement mechanism to sidestep Roe and immunize their anti-abortion statutes from judicial review.<ref name="HB4327">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> This maneuver has weakened Roe and undercut the federal judiciary's ability to protect abortion rights from state legislation.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
Dobbs v. Jackson Women's Health OrganizationEdit
Dobbs v. Jackson Women's Health Organization is a case that was a legal challenge to Mississippi's 2018 Gestational Age Act, which had banned abortions after 15 weeks with exceptions only for medical emergencies or fetal abnormalities. Federal courts had enjoined the state from enforcing the law after the state's only abortion clinic, Jackson Women's Health Organization, filed suit immediately after passage; the federal courts stated that the law violated the previously established 24-week point of viability. Mississippi asked the Supreme Court to hear the case on June 15, 2020, and the Court certified the petition on May 17, 2021, limited to the question, "Whether all pre-viability prohibitions on elective abortions are unconstitutional."<ref name=perry/> The Court chose not to take up two other questions that Mississippi wanted to bring before the Court.<ref name=perry>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
On May 2, 2022, Politico released a leaked first draft of a majority opinion written by Justice Samuel Alito, which had been circulated among the court in February 2022. Alito's draft wrote, "We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives." The release of a draft opinion for a pending case was unprecedented in recent Supreme Court history. The document was not a final decision, and the justices were still able to change their votes. The document was thought to reflect both the justices' preliminary voting and the outcome of the internal Court procedure for deciding who is assigned to write the majority opinion.<ref name="politico-draft">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref>Template:Cite news</ref> A press release from the Supreme Court confirmed the leaked document's authenticity, and Chief Justice John Roberts in a statement described its release as a "betrayal of the confidences of the Court".<ref name="SCPR20220503">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> The leaked draft regarding the decision sparked protests.<ref>Template:Cite news</ref><ref>Template:Cite news</ref>
On June 24, 2022, the Supreme Court ruled 6–3 to uphold Mississippi's Gestational Age Act, and 5–4 to overrule Roe and Casey. Similar to the leaked draft opinion, the opinion of the court written by Justice Alito stated that Roe was "egregiously wrong from the start" and its reasoning "exceptionally weak". It also stated that Roe has "enflamed debate and deepened division" and that overruling it would "return the issue of abortion to the people's elected representatives".<ref>Template:Cite court</ref> The majority opinion relied on a constitutional historical view of abortion rights, saying, "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."<ref name="Breuninger & Mangan 2022">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> The reasoning was that "abortion couldn't be constitutionally protected. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy."<ref name="Thomson-DeVeaux 2022">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> Some historians argued that this view is incomplete,<ref name="Thomson-DeVeaux 2022"/> with Leslie J. Reagan saying that Alito "speciously claims" the truth of his assertions.<ref name="Reagan 2022">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> In their dissent, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor jointly wrote, "The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other."<ref name="Sneed 2022">Template:Cite news</ref>
Role in politicsEdit
Presidential positionsEdit
Generally, presidential opinions following Roe have been split along major party lines. The decision was opposed by presidents Gerald Ford,<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> Ronald Reagan,<ref>Template:Cite book</ref> George W. Bush,<ref>Template:Cite news</ref> and Donald Trump.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> President George H. W. Bush also opposed Roe, though he had supported abortion rights earlier in his career.<ref>Template:Cite news</ref><ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
President Richard Nixon appointed Justices Burger, Blackmun, and Powell who voted with the majority, and Justice Rehnquist who dissented.<ref name=justicestable>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref name=roevwadeussc/> President Nixon did not publicly comment about Roe v. Wade.<ref>Template:Cite book</ref>
During his early career, President Jimmy Carter supported legalizing abortion in order to save the life of a woman or in the event of birth defects, or in other extreme circumstances.<ref>Template:Cite interview</ref><ref>Template:Cite book.</ref> As president, he thought abortion was wrong, but stated that he "accepted my obligation to enforce the Roe v. Wade Supreme Court ruling, and at the same time attempted in every way possible to minimize the number of abortions."<ref>Template:Cite news</ref> In 2012 he reflected, "I never have believed that Jesus Christ would approve of abortions and that was one of the problems I had when I was president having to uphold Roe v. WadeTemplate:Nbsp..." He urged the Democratic Party to take a position supporting pregnant mothers to minimize economic and social factors driving women to get abortions. He also wanted the party to take stand in favor of banning abortion except for those whose lives "are in danger or who are pregnant as a result of rape or incest."<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
Roe was supported by presidents Bill Clinton<ref>Template:Cite book</ref> and Barack Obama.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> In 1981, then-Senator Joe Biden voted for a constitutional amendment allowing states to overturn Roe v. Wade, which he voted against the following year.<ref>Template:Cite news</ref> In a 2007 memoir, Biden expressed an opinion that although he was "personally opposed to abortion" he did not have the "right to impose" his personal opposition onto others.<ref>Template:Cite magazine</ref> In 2021, he described himself to reporters as "a strong supporter of Roe v. Wade", and added, "And I under— I respect people who think that—who don't support Roe v. Wade; I respect their views. I respect them—they—those who believe life begins at the moment of conception and all. I respect that. Don't agree, but I respect that. I'm not going to impose that on people."<ref>Template:Cite news</ref><ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
Federal bills or laws regarding RoeEdit
Federal bills, amendments, or laws regarding Roe include the Women's Health Protection Act, Freedom of Choice Act, Partial-Birth Abortion Ban Act, Born-Alive Infants Protection Act, Unborn Victims of Violence Act, Interstate Abortion Bill, No Taxpayer Funding for Abortion Act, Pain-Capable Unborn Child Protection Act, Partial-Birth Abortion Ban Act of 1995, Sanctity of Human Life Act, Sanctity of Life Act, Hyde Amendment, Freedom of Access to Clinic Entrances Act, and the Baby Doe Law.
Following the passage of the Texas Heartbeat Act and the Supreme Court's acceptance of the Dobbs v. Jackson Women's Health Organization case,<ref name="20210517WaPoBarnes">Template:Cite news</ref> and the threat the case poses to Roe in the eyes of Roe supporters,<ref name="20210517WaPoBarnes"/> Neal Kumar Katyal, a law professor and former acting solicitor general of the United States, said that instead of abortion regulation by the judicial branch, Congress could "codify the rights two generations have taken as part of American life",<ref name="20210607WaPoKatyal"/> and "nullify the threat to reproductive health posed by the Mississippi case."<ref name="20210607WaPoKatyal">Template:Cite news</ref><ref>Template:Cite news</ref><ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> Thomas Jipping of the Heritage Foundation wrote that the Women's Health Protection Act is unconstitutional because it regulates how state legislatures regulate abortion and abortion services rather than directly regulating abortion at the federal level.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> Views that the WHPA is unconstitutional or should otherwise be opposed were expressed during Senate Judiciary Committee hearings in 2014.<ref name=barton>Template:Cite news also see the Statement of Hon. Marsha Blackburn in {{#invoke:citation/CS1|citation |CitationClass=web }}</ref>
State laws regarding RoeEdit
At the state level, there have been many laws about abortion. In the decade after Roe, most states passed laws protecting medical workers with a conscientious objection to abortion. Nine states which had legalized abortion or loosened abortion restrictions prior to Roe already had statutory protection for those who did not want to participate in or perform an abortion. As of 2011, forty-seven states and the District of Columbia had laws allowing certain people to decline to perform certain actions or provide information related to abortion or reproductive health.<ref>The Constitutional Right Not to Kill by Mark L. Rienzi, Emory Law Journal, Volume 62, Issue 1, 2012, pages 148–152 (pages 29–33 of the pdf)</ref> At the federal level, the Church Amendment of 1973 was proposed to protect private hospitals objecting to abortion from being deprived of funding. It first passed the Senate, 92–1, then a slightly modified version passed the House, 372–1, and the final bill which contained it passed the Senate 94–0.<ref>Douglas NeJaime & Reva Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale Law Journal 2516 (2015).</ref> Justice Blackmun supported this and other regulations protecting individual physicians and entire hospitals operated by religious denominations.<ref>Template:Cite journal</ref>
Some 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.<ref name="Vestal" /> Other states have enacted so-called trigger laws that 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, Kentucky, Louisiana, Mississippi, North Dakota, and South Dakota.<ref name="Vestal">Vestal, Christine. "States probe limits of abortion policy", Stateline.org (June 11, 2007).</ref> Additionally, many states did not repeal pre-1973 statutes against abortion, and some of those statutes could again be in force if Roe were reversed.<ref>Marcus, Frances Frank. "Louisiana Moves Against Abortion", The New York Times (July 8, 1989).</ref>
On April 16, 2012, Mississippi House Bill 1390 was signed into law.<ref>Governor Phil Bryant signs House Bill 1390, governorbryant.com, April 16, 2012 (Archived April 20, 2012) and Gov. Phil Bryant signs House Bill 1390 by Lacey Russell, The Daily Mississippian, April 17, 2012, posted to the newspaper archive on September 30, 2012, (Archived December 21, 2021)</ref> The law attempted to make abortion unfeasible without having to overturn Roe v. Wade.<ref>LZ Granderson "Mississippi's end run around abortion", CNN (July 12, 2012).</ref> Judge Daniel Porter Jordan III of the United States District Court for the Southern District of Mississippi granted an injunction against the law on July 13, 2012.<ref>878 F.Supp.2d 714 (S.D.Miss. 2012), C. A. 3:12cv436-DPJ-FKB, Jackson Women's Health Organization v. Currier, case-law.vlex.com, July 13, 2012</ref> On April 15, 2013, he issued another injunction which only applied to a part of the law which required the individual performing the abortions to have hospital admitting privileges.<ref>Jackson Women's Health v. Currier, Civil Action No. 3:12cv436-DPJ-FKB, leagle.com, April 15, 2013 (Archived December 10, 2019)</ref> On July 29, 2014, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit upheld the injunction against part of the law, with Judge Emilio M. Garza dissenting. The ruling especially relied on a case unrelated to Roe which was decided "nearly fifty years before the right to an abortion was found in the penumbras of the Constitution".<ref>No. 13-60599 in the United States Court of Appeals for the Fifth Circuit, July 29, 2014, cases.justia.com and Court rules in favor of Miss. abortion clinic by Emily Le Coz, The Clarion-Ledger, July 29, 2014</ref> On February 18, 2015, Mississippi asked the Supreme Court to hear the case, but they declined to hear it on June 28, 2016.<ref>Currier v. Jackson Women's Health Organization, scotusblog.com, published by Tom Goldstein and edited by James Romoser, (Archived May 6, 2021) and No. 14-997, Docket Files, U.S. Supreme Court (Archived May 11, 2021)</ref>
The Human Life Protection Act was signed by Alabama governor Kay Ivey on May 14, 2019, in hopes of challenging Roe v. Wade in the Supreme Court.<ref>Governor Ivey Issues Statement After Signing the Alabama Human Life Protection Act, May 15, 2019, Office of Alabama Governor</ref> It includes exceptions for a serious health risk to the mother or a lethal fetal anomaly, but otherwise it will make abortion a felony for the abortion doctor if it goes into effect. Women subjected to an abortion will not be criminally culpable or civilly liable under the law.<ref>Alabama abortion law passes: Read the bill by Leada Gore, May 16, 2019, Birmingham News</ref> On October 29, 2019, Judge Myron Thompson for the U.S. District Court for the Northern District of Alabama issued a preliminary injunction against the law.<ref>Federal judge blocks Alabama abortion ban by Abbey Crain, October 29, 2019, Birmingham News</ref>
In May 2021, Texas lawmakers passed Senate Bill 8, creating the Texas Heartbeat Act, banning abortions except in cases of medical emergency as soon as a fetal heartbeat can be detected.<ref>S.B. No. 8, Texas State Senate</ref> This is typically as early as six weeks into pregnancy and often before women know they are pregnant. The law established that any Texas resident who is not a state or local government employee or official can sue abortion clinics and doctors who are known to be "aiding and abetting" abortion procedures after six weeks.<ref name=cnntexassept12021>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> A clause forbids anyone who impregnated an abortion patient through rape, sexual assault, or incest to sue concerning the patient.<ref>S.B. No. 8, Texas State Senate, page 9</ref> The enactment date was September 1, 2021, and the U.S. Supreme Court, in a 5–4 decision, declined a request to block enforcement of the law that day.<ref>21A24 Whole Woman's Health v. Jackson 594 U. S. ____ (2021), September 1, 2021, supremecourt.gov</ref> On October 22, 2021, the Court again did not block the law's enforcement, and agreed to hear arguments for United States v. Texas on November 1, 2021.<ref>Oral Argument – Audio, United States v. Texas, Docket Number: 21-588, supremecourt.gov, November 1, 2021</ref> They limited the question to a review of standing.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref>Template:Cite news</ref> On December 10, 2021, the Court dismissed the lawsuit on the basis that lower courts should not have accepted it.<ref>(Slip Opinion), 595 U. S. United States v. Texas (2021), No. 21–588 (21A85), supremecourt.gov, December 10, 2021</ref> This decision allows lawsuits against the executive directors of Texas's medical, nursing, and pharmacy licensing boards and also against the executive commissioner of the Texas Health and Human Services Commission, but not certain other lawsuits seeking to overturn the law.<ref>Supreme Court allows lawsuit challenging Texas abortion ban to continue but keeps law in effect for now by Kevin Breuninger and Dan Mangan, CNBC, December 10, 2021</ref>
LegacyEdit
Effects of legalizationEdit
Template:See also Roe v. Wade caused a 4.5% decline in births in states that had not previously legalized abortion.<ref>Template:Cite journal</ref> Although the legalization of abortion in the United States increased the labor supply of fertile-aged women in the workforce, it decreased the labor supply of older women. This is thought to be due to the fact they now had fewer opportunities to financially support grandchildren. Older women whose labors became less necessary for the family's financial wellbeing either left or stayed out of the workforce.<ref>Template:Cite journal</ref> Since Roe, the risk of death due to legal abortion fell considerably due to increased physician skills, improved medical technology, and earlier termination of pregnancy.<ref>Template:Cite journal</ref> Various studies have shown that overturning Roe could have adverse socio-economic conditions, higher maternal mortality,<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> and other negative impacts.<ref name="Myers et al. 2019">Template:Cite journal</ref><ref>Template:Cite journal</ref><ref>Template:Cite magazine</ref>
The Donohue–Levitt hypothesis about the legalized abortion and crime effect proposed that legalized abortion was responsible for reductions in the crime rate. If there is a relationship between abortion and crime, there are several possibilities that could explain how abortion lowers crime. One possibility is that crime is disproportionally committed by young males, and legalizing abortion reduced the number of young males. Another possibility is that children born in the post-legalization era are less likely to commit crimes. If this is the case, it might be explained in two ways. One way is that the sort of women who have abortions are not representative of pregnant women as a whole; rather they are the sort who are most likely to give birth to children who grow up to be criminals. In this way, abortion serves to shape American family structure.<ref name=donohue2001/> Studies linking demographics to crime have found that children born to American teenagers, unmarried mothers, and mothers with lower incomes are more likely to engage in criminal activity as adolescents.<ref>Abortion Legalization and Child Living Circumstances: Who is the "Marginal Child?" by Jonathan Gruber, Phillip Levine, and Douglas Staiger, National Bureau of Economic Research, Working Paper 6034, May 1997</ref> Abortion rates are higher for these demographics. A second possible way to explain it is that women use abortion to prevent births until they are most able to provide a stable home environment. Factors involved in stability include the age, education, income, of the mother, her use of drugs and alcohol, the presence of a father, and wanted as opposed to unwanted pregnancies.<ref name=donohue2001>Template:Cite journal Also see Freakonomics § The impact of legalized abortion on crime</ref> Another hypothesis is the Roe effect, which tries to explain why the practice of abortion would eventually lead to abortion being restricted or outlawed. The hypothesis is that people in favor of abortion rights would not parent as many children when abortion is legal, and since children tend to have similar views to their parents eventually voters would not support abortion rights.<ref>Babies Having (Fewer) Babies by James Taranto, wsj.com OpinionJournal, Dow Jones & Company, April 14, 2005</ref> Critics have argued that Donohue and Levitt's methodologies are flawed and that no statistically significant relationship between abortion and later crime rates can be proven.<ref>Template:Cite book</ref><ref>Template:Cite journal</ref><ref>Template:Cite book</ref>
Opinion pollsEdit
Template:See also Into the 21st century, polls of Americans' opinions about abortion indicated they are about equally divided. Several organizations, among them Gallup,<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref>Saad, Lydia. More Americans "Pro-Life" Than "Pro-Choice" for First Time, Gallup (May 15, 2009).</ref> Pew Research Center,<ref>"Public Takes Conservative Turn on Gun Control, Abortion Americans Now Divided Over Both Issues", Pew Research Center (April 30, 2009).</ref> and Harris Insights & Analytics,<ref name="Lowest">Harris Interactive, (November 9, 2007). "Support for Roe v. Wade Increases Significantly, Reaches Highest Level in Nine Years Template:Webarchive." Retrieved December 14, 2007.</ref><ref>Harris Interactive. 'U.S. Attitudes Toward Roe v. Wade". The Wall Street Journal Online, (May 4, 2006). Retrieved February 3, 2007.</ref> conduct abortion or Roe v. Wade-related polls. Regarding the Roe decision as a whole, more Americans supported it than supported overturning it.<ref name="Angus">Results on Roe v. Wade Template:Webarchive via Angus Reid Global Monitor (2007).</ref> In the 2000s, when pollsters describe various regulations that Roe prevented legislatures from enacting, support for Roe dropped.<ref name="Angus" /><ref>Gallagher, Maggie. "Pro-Life Voters are Crucial Component of Electability", Realclearpolitics.com (May 23, 2007).</ref>
Into the 2010s, poll results relating to abortion indicated nuance and frequently do not directly match up with respondents' self-identified political affiliations.<ref>Template:Cite news</ref> In 2021, an ABC News/Washington Post poll found that 58% of those with children living at home wanted to see Roe v. Wade upheld, compared to 62% of those without children at home. An All in Together poll found that only 36% with children living in their house opposed the Texas Heartbeat Act, compared to 54.9% without children.<ref>How Americans Really Feel About Abortion: The Sometimes Surprising Poll Results As Supreme Court Weighs Overturning Roe V. Wade by Alison Durkee, Forbes, November 30, 2021</ref> After the Supreme Court's decision in June 2022 to overturn Roe v. Wade, a new CBC News/YouGov poll showed 59% disapprove of the decision, and of women polled, 67% disapprove. According to the same poll, 52% of the participants called the court's decision a "step backward" for America, 31% said it is a "step forward", and 17% say it was neither.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> A January 2023 Gallup poll found that nearly 7 in 10 Americans disapprove of the country's abortion policies, the highest rate in 23 years.<ref>Template:Cite news</ref>
See alsoEdit
- Abortion law in the United States
- Abortion law in the United States by state
- Feticide § Laws in the United States
- Justifiable homicide § Common excusing conditions, sixth item listed
- List of United States Supreme Court cases by the Burger Court
- List of United States Supreme Court cases, volume 410
- List of United States Supreme Court leaks
- Roe vs. Wade (film), released in 1989
- Roe v. Wade (film), released in 2020
- Shelley Lynn Thornton, the "Roe baby"
- Dobbs v. Jackson Women's Health Organization
ReferencesEdit
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Further readingEdit
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External linksEdit
Written opinions
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- The concurring opinions of Burger and Douglas, as well as White's dissenting opinion, were issued along with Doe v. Bolton and may be found at:
Oral arguments
- Audio of oral arguments, oyez.org, transcripts accompany the audio
- Transcript of First Oral Argument in Roe v. Wade 410 U.S. 113 (1973), aul.org, edited September 2011
- Transcript of Reargument in Roe v. Wade, 410 U.S. 113 (1973), aul.org, edited September 2011
Other court documents
Other media
- "Supreme Court Landmark Case Roe v. Wade" from C-SPAN's Landmark Cases: Historic Supreme Court Decisions
- "The Roe Baby", in The Atlantic, September 9, 2021, by Joshua Prager. (Retrieved 9.9.2021)
- To overrule a precedent, May 6, 2022, opinion contribution by Paul W. Kahn in The Hill – purported truth of the law versus the rule of law argued as insufficient to reverse opinion