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| {{SCOTUSCase | |||
| |Litigants=Roe v. Wade | |||
| |ArgueDate=December 13 | |||
| |ArgueYear=1971 | |||
| |ReargueDate=October 11 | |||
| |ReargueYear=1972 | |||
| |DecideDate=January 22 | |||
| |DecideYear=1973 | |||
| |FullName=], et al. v. ], District Attorney of Dallas County | |||
| |Citation=93 S. Ct. 705; 35 L. Ed. 2d 147; | |||
| |USVol=410 | |||
| |USPage=113 | |||
| |Prior=''Judgment for plaintiffs, injunction denied'', 314 F. Supp. 1217 (N.D. Tex. 1970); ''probable jurisdiction noted'', 402 U.S. 941 (1971); ''set for reargument'', 408 U.S. 919 (1972) | |||
| |Subsequent=''Rehearing denied'', 410 U.S. 959 (1973) | |||
| |Holding=Texas law making it a crime to assist a woman to get an abortion violated her due process rights. ] affirmed in part, reversed in part. | |||
| |Oral Argument=http://www.oyez.org/cases/1970-1979/1971/1971_70_18/argument/ | |||
| |SCOTUS=1972-1975 | |||
| |Majority=Blackmun | |||
| |JoinMajority=Burger, Douglas, Brennan, Stewart, Marshall, Powell | |||
| |Concurrence=Burger | |||
| |Concurrence2=Douglas | |||
| |Concurrence3=Stewart | |||
| |Dissent=White | |||
| |JoinDissent=Rehnquist | |||
| |Dissent2=Rehnquist | |||
| |LawsApplied=]; Tex. Code Crim. Proc. arts. 1191–94, 1196 | |||
| }} | |||
| '''''Roe v. Wade''''', ] (1973) was a ] ] case that resulted in a ] about ].<ref name="Roe">''Roe v. Wade'', (1973). Findlaw.com. Retrieved ]</ref> According to the ''Roe'' decision, most laws against abortion violated a ] to ] under the ] of the ]. The decision overturned all ] and ] laws outlawing or restricting abortion that were inconsistent with its ]. ''Roe'' is one of the most controversial and politically significant cases in U.S. Supreme Court history. Its lesser-known companion case, '']'', was decided at the same time.<ref name="Doe">''Doe v. Bolton'', (1973). Findlaw.com. Retrieved ].</ref> | |||
| The central holding of ''Roe v. Wade'' was that abortions are permissible for any reason a woman chooses, up until the "point at which the ] becomes ‘viable,’ that is, potentially able to live outside the mother's ], albeit with artificial aid. ] is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."<ref name="Roe"/> The Court also held that abortion after viability must be available when needed to protect a woman's health, which the court defined broadly in '']''. | |||
| The ''Roe v. Wade'' decision prompted national debate that continues to this day. Debated subjects include whether and to what extent abortion should be illegal, about who should decide whether or not it is illegal, about the methods used by the Supreme Court in constitutional ], and about the role of ] and ] views in the political sphere. ''Roe v. Wade'' reshaped national politics, dividing much of the nation into pro-''Roe'' (mostly ]) and anti-''Roe'' (mostly ]) camps, and inspiring ] on both sides. | |||
| ''Roe'' critics say the ruling is illegitimate because it strays from the text and history of the Constitution, and imposes abortion policy on the states and Congress contrary to American principles of ] and ]. Another criticism of ''Roe'' (though not one made by the dissenters in the case) is that the majority opinion failed to recognize the ] of fetal ] ], either beginning at conception or later. Supporters describe ''Roe'' as vital to preservation of ], personal freedom, and privacy. | |||
| ==History of case== | |||
| In 1970, attorneys ] and ] filed suit in ] on behalf of ] ("Jane Roe"). McCorvey claimed her pregnancy was the result of ], although she now says her claim was false.<ref name="testimony"/> The defendant in the case was ] District Attorney ], representing the State of Texas. | |||
| The district court ruled in McCorvey's favor, but refused to grant an ] against the enforcement of the laws barring abortion.<ref>''Roe v. Wade'', 314 F. Supp. 1217 (1970), http://upload.wikimedia.org/wikipedia/commons/0/0f/Roe.pdf (PDF courtesy link). Retrieved ]</ref> The district court's decision was based upon the ], and the court also relied upon a concurring opinion by Justice ] in the 1965 Supreme Court case of '']'', regarding a right to use ]s. Few state laws proscribed contraceptives in 1965 when the ''Griswold'' case was decided, whereas abortion was widely proscribed by state laws in the early 1970s.<ref>O'Connor, Karen. Testimony before U.S. Senate Judiciary Committee, "" (]). Retrieved ]</ref> | |||
| ''Roe v. Wade'' ultimately reached the U.S. Supreme Court on ]. Following a first round of arguments, Justice ] drafted a preliminary opinion that emphasized what he saw as the Texas law's vagueness.<ref>Schwartz, Bernard. '''', page 103 (1988 Oxford University Press), via Google Books. Retrieved ]</ref> ] ] and ] joined the Supreme Court too late to hear the first round of arguments. Therefore, ] ] proposed that the case be reargued; this took place on ], ]. Weddington continued to represent ''Roe'', and Texas Assistant Attorney General Robert C. Flowers stepped in to replace Wade. Justice ] threatened to write a dissent from the reargument order, but was coaxed out of the action by his colleagues, and his dissent was merely mentioned in the reargument order without further statement or opinion.<ref> Garrow David. '''' (Univ. of Calif. 1998), p. 556. Retrieved ]</ref> | |||
| ==Supreme Court decision== | |||
| ] wrote the Court’s opinion.]] The court issued its decision on ], ], with a 7 to 2 majority voting to strike down Texas abortion laws. Burger and Douglas' concurring opinion and White's dissenting opinion were issued separately, in the companion case of '']''. | |||
| ===Abortion=== | |||
| The ''Roe'' Court deemed abortion a ] under the ], thereby subjecting all laws attempting to restrict it to the standard of ]. Although abortion is still considered a fundamental right, subsequent cases notably '']'', '']'', and '']'', have affected the legal standard. | |||
| The opinion of the ''Roe'' Court, written by Justice ], declined to adopt the district court's ] rationale, and instead asserted that the "], whether it be founded in the ]'s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Douglas, in his concurring opinion from the companion case '']'', stated more emphatically that, "The Ninth Amendment obviously does not create federally enforceable rights." Thus, the ''Roe'' majority rested its opinion squarely on the Constitution's ]. | |||
| According to the ''Roe'' Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." ] had been subject to criminal statutes since at least the nineteenth century. Section VI of Blackmun's opinion was devoted to an analysis of historical attitudes, including those of the ], ], the ], the ], the ], English ], American law, the ], the ], and the ]. | |||
| Without finding what it deemed a sufficient historical basis to justify the Texas statute, the Court identified three possible justifications in Section VII of the opinion to explain the criminalization of abortion: (1) women who can receive an abortion are more likely to engage in "illicit sexual conduct"; (2) the medical procedure was extremely risky prior to the development of ]s and, even with modern medical techniques, is still risky in late stages of pregnancy; and (3) the state has an interest in protecting prenatal life. To the first, Blackmun wrote that "no court or commentator has taken the argument seriously" and the statute failed to "distinguish between married and unwed mothers"; according to the Court, the second and third constitute valid state interests. In Section X, the Court reiterated, "he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman ... and that it has still another important and legitimate interest in protecting the potentiality of human life." | |||
| Although the Constitution does not explicitly mention any right of privacy, the Court had previously found support for various privacy rights in several provisions of the ] and the ], as well as in the "]" of the Bill of Rights. But instead of relying upon the Bill of Rights or "penumbras, formed by emanations", as the Court had done in '']'', the ''Roe'' Court relied on a "right of privacy" that it said was located in the due process clause of the Constitution. | |||
| The Court determined that "arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive", and declared, "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." | |||
| When weighing the competing interests that the Court had identified, Blackmun also asserted that if the ] was defined as a person for purposes of the ] then the fetus would have a specific ] under that Amendment. However, the Court majority determined that the ] of the Constitution (up to the enactment of the Fourteenth Amendment in 1868) did not include the unborn. | |||
| The Court's determination of whether a fetus can enjoy constitutional protection was separate from the notion of when life begins: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of ], ], and ] are unable to arrive at any consensus, the ], at this point in the development of man's knowledge, is not in a position to speculate as to the answer." The Court only believed itself positioned to resolve the question of when a right to abortion begins. | |||
| The decision established a system of ]s that attempted to balance the state's legitimate interests against the abortion right. The Court ruled that the state cannot restrict a woman's right to an abortion during the first trimester, the state can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health", and the state can choose to restrict or ] abortion as it sees fit during the third trimester when the fetus is viable ("except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother"). | |||
| ===Justiciability=== | |||
| An aspect of the decision that attracted comparatively little attention was the Court's disposition of the issues of ] and ]. The Supreme Court does not issue ]s (those stating what the law would be in some hypothetical circumstance). Instead, there must be an actual "]", including particularly a plaintiff who is aggrieved and seeks relief. In the ''Roe'' case, "Jane Roe", who began the litigation in March 1970, had already given birth by the time the case was argued before the Supreme Court in December 1971. By the traditional rules, therefore, there was an argument that Roe's appeal was moot because she would not be affected by the ruling, and also because she lacked standing to assert the rights of other pregnant women.<ref>Abernathy, M. et al., '''' (U. South Carolina 1993), page 4. Retrieved ].</ref> | |||
| The Court concluded that the case came within an established exception to the rule; one that allowed consideration of an issue that was "capable of repetition, yet evading ]." This phrase had been coined in 1911 by Justice ].<ref>''Southern Pacific v. Interstate Commerce Commission'', (1911). Findlaw.com. Retrieved ]</ref> Blackmun's opinion quoted McKenna, and noted that pregnancy would normally conclude more quickly than an appellate process: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied." This ruling was critical to the Supreme Court's power to review the case. | |||
| == Dissents == | |||
| ] was the senior dissenting justice.]] | |||
| Associate Justices ] and ] wrote emphatic dissenting opinions in this case. Justice White wrote: | |||
| <blockquote>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 mothers 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 mother, 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.<ref name="Doe"/></blockquote> | |||
| White asserted that the Court "values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries." Despite White suggesting he "might agree" with the Court's values and priorities, he wrote that he saw "no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States." White criticized the Court for involving itself in this issue by creating "a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it." He would have left this issue, for the most part, "with the people and to the political processes the people have devised to govern their affairs." | |||
| Rehnquist elaborated upon several of White's points, by asserting that the Court's historical analysis was flawed: | |||
| <blockquote>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.<ref name="Roe"/></blockquote> | |||
| From this historical record, Rehnquist concluded that, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." Therefore, in his view, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter." | |||
| ==Controversy== | |||
| Some ] supporters argue that life begins upon ], and thus the unborn should be entitled to legal protection. Other pro-life supporters argue that, in the absence of definite knowledge of when life begins, it is best not to risk killing an innocent victim by allowing abortion.<ref>Reagan, Ronald. '''', (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 ]</ref> While a ] that abortions performed in the first trimester should generally be legal, a majority also believe that second trimester abortions should generally be illegal.<ref name="Rubin">Rubin, Allisa. "," ''Los Angeles Times'' (]). Retrieved ]. ("In The Times Poll, 65% of respondents said abortions in the second trimester should not be legal. Female respondents feel more strongly about the issue: 72% believe second-trimester abortions should be illegal, compared with 58% of men.")</ref> Every year on the anniversary of the decision, tens of thousands of pro-life protesters demonstrate outside the Supreme Court Building in ] in the ]. | |||
| Opponents of ''Roe'' have objected that the decision lacks a valid Constitutional foundation. Like the dissenters in ''Roe'', they have maintained that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the ] process, rather than through an all-encompassing ruling from the Supreme Court. Supporters of ''Roe'' contend that the decision has a valid constitutional foundation, or contend that justification for the result in ''Roe'' could be found in the Constitution but not in the articles referenced in the decision.<ref>'''', Jack Balkin Ed. (NYU Press 2005). Retrieved ]</ref> | |||
| In response to ''Roe v. Wade'', most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring ] for minors to obtain abortions, parental notification laws, spousal mutual consent laws, ] laws, laws requiring abortions to be performed in hospitals but not clinics, laws barring state funding for abortions, laws banning abortions utilizing ] procedures (often referred to as partial-birth abortion), laws requiring waiting periods before abortion, or laws mandating women read certain types of literature before choosing an abortion.<ref>Guttmacher Institute, "", published ]. Retrieved ].</ref> Congress in 1976 passed the ], barring federal funding for abortion. The Supreme Court struck down several state restrictions on abortions 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 '']'' (1980).<ref>''Harris v. McRae'', (1980). Findlaw.com. Retrieved ].</ref> | |||
| The most prominent organized groups that mobilized in response to ''Roe'' are the ] on the pro-choice side, and the ] on the pro-life side. During his life, Harry Blackmun, author of the ''Roe'' opinion, was a determined advocate for the decision. Others have joined him in support of ''Roe'', including ], who before the decision had offered an influential defense of abortion.<ref>Thomson, Judith. "]," in ''Philosophy and Public Affairs'', vol. 1, no. 1 (1971), pp. 47–66.</ref> | |||
| ''Roe'' remains controversial; ] show continued division about its landmark rulings, and about the decision as a whole. | |||
| ===Internal memoranda=== | |||
| Internal Supreme Court memoranda surfaced in the ] in 1988, among the personal papers of Douglas and other Justices, showing the private discussions of the Justices on the case. Blackmun said of the majority decision he authored, "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>Woodward, Bob. "", ''Washington Post'' (]). Retrieved ].</ref> Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to the state legislatures, though he joined Blackmun's decision.<ref>Kmiec, Douglas. "" (]), via the "Abortion Law Homepage". Retrieved ].</ref> | |||
| The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the Court's decision.<ref>Bush, George Walker. Quoted in ''Boston Globe'', p. A12 (]). "Roe v. Wade was wrong because it 'usurped the power of the legislatures,' Bush said. 'I felt like it was a case where the court took the place of what legislatures should do in America,' he said. But Bush refused to say how he felt each state should act. Instead, he said that when it comes to legalizing abortion, 'it should be up to each legislature.'" Retrieved ].</ref> The "viability" criterion, which Blackmun acknowledged was arbitrary, is still in effect, although the point of viability has receded toward conception as medical science has found ways to help premature babies survive.<ref>Stith, Irene. '''' (]). Retrieved ].</ref> | |||
| ===Liberal legal criticisms=== | |||
| Liberal legal scholars have criticized ''Roe'', despite their opposition to pro-life laws, arguing that the ends achieved by ''Roe'' do not justify the means.<ref>Cohen, Richard. ''Washington Post'', (]): "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 ].</ref> | |||
| ], for example, has written that "Blackmun’s papers vindicate every indictment of ''Roe'': invention, overreach, arbitrariness, textual indifference."<ref>Saletan, William. ''Legal Affairs'', May/June 2005. Retrieved ].</ref> In a 1973 article in the '']'', Professor ] criticized ''Roe'' as a decision which "is not ] and gives almost no sense of an obligation to try to be."<ref>Ely, John Hart. "", ''Yale Law Journal'' 1973. Retrieved ].</ref> Ely added: "What is frightening about ''Roe'' is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure." | |||
| Similarly, Harvard law professor ] has noted that, "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>Tribe, Laurence. "The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law", 87 ''Harv. L. Rev.'' 1, 7 (1973). Quoted in Morgan, "", ''Michigan Law Review'', Vol. 77, No. 7, Symposium on the Law and Politics of Abortion (Aug., 1979), p. 1724, via JSTOR (see bottom of first page of Morgan's article). Retrieved ].</ref> ] prosecutor ] wrote: " failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations.... Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."<ref>Cox, Archibald. '''', 113–114 (Oxford U. Press 1976), via Google Books. Retrieved ].</ref> | |||
| ] has criticized the court's ruling in ''Roe v. Wade'' for terminating a nascent democratic movement to liberalize ].<ref>Ginsburg, Ruth. "", 63 ''North Carolina Law Review'' 375 (1985): "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 ].</ref> Likewise, legal affairs editor Jeffrey Rosen<ref> Rosen, Jeffrey. "", ''The New Republic'' (]): “In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized ''Roe'' on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.” Retrieved ].</ref> and ]<ref>Kinsley, Michael. "", ''The New Republic'' (]): "Against all odds (and, I'm afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court. .... freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami." Retrieved ].</ref> say that a democratic movement would have been the correct way to build a more durable consensus in support of abortion rights. | |||
| Legal analyst Benjamin Wittes has written that ''Roe'' "disenfranchised millions of ]s on an issue about which they care deeply".<ref>Wittes, Benjamin. "", ''The Atlantic Monthly'', Jan/Feb 2005. Retrieved ].</ref> ], a former Blackmun clerk who "loved Roe’s author like a grandfather" wrote: "As a matter of constitutional interpretation and judicial method, ''Roe'' borders on the indefensible....Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since ''Roe''’s announcement, no one has produced a convincing defense of ''Roe'' on its own terms."<ref>Lazarus, Edward. "", ''Findlaw's Writ'' (]). Retrieved ].</ref> Liberal law professors ],<ref>Dershowitz, Alan. ''Supreme Injustice: How the High Court Hijacked Election 2000'' (Oxford U. Press 2001): “Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)....” quoted by Green, "", in ''The Final Arbiter: The Consequences of Bush V. Gore for Law And Politics'', ed. Banks C, Cohen D & Green J., editors, page 14 (SUNY Press 2005), via Google Books. Retrieved ].</ref> ],<ref>Sunstein, Cass. Quoted by McGuire, '''' (]): "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 beginning....As a constitutional matter, I think Roe was way overreached.” Retrieved ].</ref> and | |||
| ]<ref>Roosevelt, Kermit. "", ''Washington Post'', (]): "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….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’ entited to the protection of the 14th Amendment....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 ].</ref> have also expressed disappointment with ''Roe''. | |||
| ==Public opinion== | |||
| {{see also|Abortion in the United States#Public opinion|l1=U.S. Polls on Abortion}} | |||
| An April 2006 ] poll on ''Roe v. Wade'', asked the following question: | |||
| <blockquote>In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?<ref name="Lowest">Harris Interactive, (]). "." Retrieved ].</ref></blockquote> | |||
| In reply, 49 percent of respondents indicated favor while 47 percent indicated opposition; the Harris organization concluded from this poll that "49 percent now support Roe vs. Wade." Critics assert that the media often misreport polls on ''Roe v. Wade''.<ref name="accuracy">Press Release from National Right to Life Committee titled “” (]-]). Retrieved ].</ref> The Harris poll question dealt with first trimester abortions, whereas ''Roe'' decided that a woman can get a pre-viability abortion for any reason, without regard to any concern her doctor may have about protecting the fetus, well beyond the first trimester.<ref name="Roe"/> The Harris poll has tracked public opinion about ''Roe'' since 1973:<ref> | |||
| Harris Interactive. ''The Wall Street Journal Online'', (]). Retrieved ].</ref> | |||
| <CENTER> | |||
| {| class="wikitable" | |||
| |- style="background-color: #a0d0ff;" | |||
| | | |||
| |ROWSPAN="1" COLSPAN="1" ALIGN=”CENTER” |1973 | |||
| |ROWSPAN=”1” COLSPAN="1" ALIGN="CENTER" |1976 | |||
| |ROWSPAN=”1” COLSPAN="1" ALIGN="CENTER" |1979 | |||
| |ROWSPAN="1" COLSPAN="1" ALIGN=”CENTER” |1981 | |||
| |ROWSPAN=”1” COLSPAN="1" ALIGN="CENTER" |1985 | |||
| |ROWSPAN="1" COLSPAN="1" ALIGN=”CENTER” |1989 | |||
| |ROWSPAN=”1” COLSPAN="1" ALIGN="CENTER" |1991 | |||
| |ROWSPAN="1" COLSPAN="1" ALIGN=”CENTER” |1992 | |||
| |ROWSPAN=”1” COLSPAN="1" ALIGN="CENTER" |1993 | |||
| |ROWSPAN="1" COLSPAN="1" ALIGN=”CENTER” |1996 | |||
| |ROWSPAN=”1” COLSPAN="1" ALIGN="CENTER" |1998 | |||
| |ROWSPAN="1" COLSPAN="1" ALIGN=”CENTER” |2005 | |||
| |ROWSPAN=”1” COLSPAN="1" ALIGN="CENTER" |2006 | |||
| |- | |||
| | Support for ''Roe'' As Compared to 1973|| +0%|| +7% || +8% || +4%|| -2%|| +7% || +13%|| +9% || +4% || +0%|| +5%|| +0%|| -3% | |||
| |- | |||
| | Opposition to ''Roe'' As Compared to 1973|| +0%|| -14% || -5% || -1%|| +5%|| -5% || -9%|| -7% || +0% || -1%|| -1%|| +5%|| +5% | |||
| |} | |||
| </CENTER> | |||
| The Harris organization says that support for ''Roe'' is at its "lowest level ever,"<ref name="Lowest"/> though the situation in 2006 was not appreciably different from in 1985. | |||
| ==Role in subsequent decisions and politics== | |||
| ]'' cover page from January 23, 1973. President ] died the same day as the ''Roe'' decision.]] | |||
| The ''Roe'' decision was opposed by Presidents ], <ref>Ford, Gerald. , published online by The American Presidency Project. Santa Barbara, CA: University of California (]).</ref> ],<ref>Reagan, Ronald. ] (Nelson ]).</ref> ],<ref>Bush, George Herbert Walker. (]).</ref> and ].<ref>Bush, George Walker. "," ''Boston Globe'', p. A12 (]).</ref> It was supported by Presidents ]<ref>Carter, James Earl. ''Larry King Live'', CNN, (]). Also see ], ''Jimmy Carter: A Comprehensive Biography from Plains to Postpresidency'': "Early in his term as governor, Carter had strongly supported family planning programs including abortion. He had written the foreword to a book, Women in Need, that favored a woman's right to abortion. He had given private encouragement to the plaintiffs in a lawsuit, Doe v. Bolton, filed against the state of Georgia to overturn its archaic abortion laws."</ref> and ].<ref>Clinton, Bill. '']'', page 229 (Knopf 2004).</ref> ] did not publicly comment about it.<ref>Reeves, Richard. '''', page 563 (]): "The President did not comment directly on the decision."</ref> | |||
| Opposition to ''Roe'' on the bench grew when ] Reagan — who supported legislative restrictions on abortion — made federal judicial appointments. Reagan denied that there was any ]: "I have never given a litmus test to anyone that I have appointed to the bench…. I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We've had too many examples in recent years of courts and judges legislating."<ref>Reagan, Ronald. '''' (]). Retrieved ].</ref> | |||
| In addition to White and Rehnquist, Reagan appointee ] began dissenting from the Court's abortion cases, arguing that the trimester-based analysis devised by the ''Roe'' Court was "unworkable."<ref>''Akron v. Akron Center for Reproductive Health Inc.'', (1983). Findlaw.com. Retrieved ].</ref> Shortly before his retirement from the bench, Chief Justice Warren Burger suggested that ''Roe'' be "reexamined";<ref name="Thornburgh">''Thornburgh v. American College of Obstetricians and Gynecologists'', (1986). Findlaw.com. Retrieved ].</ref> the associate justice who filled Burger's place on the Court—Justice ]—has been a vigorous opponent of ''Roe''. Concern about overturning of ''Roe'' played a major role in the defeat of ]'s nomination to the Court; the man eventually appointed to replace ''Roe'' supporter Lewis Powell was ]. | |||
| In Canada, its Supreme Court used the rulings in both ''Roe'' and '']'' as grounds to find Canada's federal law restricting access to abortions unconstitutional in '']'' (1 S.C.R. 30) 1988, and to find provisional restrictions on abortion also unconstitutional, '']''. | |||
| ===''Webster v. Reproductive Health Services''=== | |||
| In a 5-4 decision in 1989's '']'', 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."<ref name="Webster">''Webster v. Reproductive Health Services'', (1989). Findlaw.com. Retrieved ].</ref> In this case, the Court upheld several abortion restrictions, and modified the ''Roe'' trimester framework.<ref name="Webster"/> | |||
| In concurring opinions, O'Connor refused to reconsider ''Roe'', and Justice ] criticized the Court and O'Connor for not overruling ''Roe''.<ref name="Webster"/> Blackmun — author of the ''Roe'' opinion — stated in his dissent that White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their ] opinion "foments disregard for the law."<ref name="Webster"/> White had recently opined that Blackmun was "warped."<ref name="Thornburgh"/> | |||
| ===''Planned Parenthood v. Casey''=== | |||
| With the retirement of ''Roe'' supporters ] and ], and their replacement by ] and ], pro-choice advocates viewed ''Roe'' for the first time as being in danger.<ref>Wattleton, Faye. (]). Retrieved ].</ref> During the confirmation hearings of David Souter, ] president ] declared that confirming Souter would mean "ending freedom for women in this country."<ref>Yard, Molly. Quoted in Kamen, "", ''Washington Post'' (]). Retrieved ].</ref> | |||
| According to ], in deliberations for '']'' (1992), an initial majority of five Justices that would have overturned ''Roe'' foundered when ] switched sides.<ref>Totenberg, Nina. "", ''NPR's Morning Edition'' (]). Retrieved ].</ref> O'Connor, Kennedy, and Souter joined Blackmun and Stevens to reaffirm the central holding of ''Roe'', saying, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."<ref name="Casey">''Planned Parenthood of Southeastern Pa. v. Casey'', (1992). Retrieved ].</ref> Rehnquist and Scalia signed each others' dissenting opinions; White and Thomas signed those dissenting opinions as well. | |||
| Scalia's dissent acknowledged that abortion rights are of "great importance to many women", but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed. Scalia concluded: "by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish."<ref name="Casey"/> | |||
| ===''Stenberg v. Carhart''=== | |||
| During the 1990s, ] attempted to ban certain second-trimester abortion procedures sometimes called ]. The Nebraska ban allowed other second-trimester abortion procedures called ] abortions. Ginsburg (who replaced White) stated, "this law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."<ref name="Stenberg">''Stenberg v. Carhart'', (2000). Retrieved ].</ref> The Supreme Court struck down the Nebraska ban by a 5-4 vote in '']'' (2000), citing a right to use the safest method of abortion. | |||
| Kennedy, who had co-authored the 5-4 ''Casey'' decision upholding ''Roe'', was among the dissenters in ''Stenberg'', writing that Nebraska had done nothing unconstitutional.<ref name="Stenberg"/> Kennedy described the second trimester abortion procedure that Nebraska was ''not'' seeking to prohibit: "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." Kennedy wrote that since this dilation and evacuation procedure remained available in Nebraska, the state was free to ban the other procedure known as partial birth abortion.<ref name="Stenberg"/> | |||
| The remaining three dissenters in ''Stenberg'' — Thomas, Scalia, and Rehnquist — disagreed again with ''Roe'': "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so." | |||
| ===''Gonzales v. Carhart''=== | |||
| In 2003, Congress passed the ], which led to a lawsuit in the case of '']''. The Court had previously ruled in '']'' that a state's ban on partial birth abortion was unconstitutional because such a ban would not allow for the health of the mother. The membership of the Court changed after ''Stenberg'', with ] and ] replacing Rehnquist and O'Connor, respectively. Further, the ban at issue in ''Gonzales v. Carhart'' was a federal statute, rather than a relatively vague state statute as in the ''Stenberg'' case. | |||
| On ], ], the Supreme Court handed down a 5 to 4 decision upholding the constitutionality of the Partial-Birth Abortion Ban Act. Kennedy wrote for the five-justice majority that Congress was within its power to generally ban the procedure, although the Court left the door open for as-applied challenges. Kennedy's opinion did not reach the question whether the Court's prior decisions in ''Roe v. Wade'', ''Planned Parenthood v. Casey'', and ''Stenberg v. Carhart'' were valid, and instead the Court said that the challenged statute is consistent with those prior decisions whether or not those prior decisions were valid. | |||
| Joining the majority were Chief Justice ], Scalia, Thomas, and Alito. Ginsburg and the other three justices dissented, contending that the ruling ignored Supreme Court abortion precedent, and also offering an equality-based justification for that abortion precedent. Thomas filed a concurring opinion, joined by Scalia, contending that the Court's prior decisions in ''Roe v. Wade'' and ''Planned Parenthood v. Casey'' should be reversed, and also noting that the Partial-Birth Abortion Ban Act may exceed the powers of Congress under the ]. | |||
| ===Activities of Norma McCorvey=== | |||
| ] became a member of the pro-life movement in 1995; she now supports making abortion illegal. In 1998, she testified to Congress: | |||
| <blockquote>It was my pseudonym, Jane Roe, which had been used to create the "right" to abortion out of legal thin air. But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15, 20 years later and say, "Thank you for allowing me to have my five or six abortions. Without you, it wouldn't have been possible." Sarah never mentioned women using abortions as a form of birth control. We talked about truly desperate and needy women, not women already wearing maternity clothes.<ref name="testimony">McCorvey, Norma. Testimony to the Senate Subcommittee on the Constitution, Federalism and Property Rights (]), (]). Retrieved ]</ref></blockquote> | |||
| As a party to the original litigation, she sought to reopen the case in ] in Texas to have ''Roe v. Wade'' overturned. However, the ] decided that her case was moot, in '']''.<ref>''McCorvey v. Hill'', (5th Cir 2004). Findlaw.com. Retrieved ]</ref> In a concurring opinion, Judge ] agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development, but Jones said she was compelled to agree that the case was moot. On ], ], the Supreme Court refused to grant a ], and McCorvey's appeal ended. | |||
| ===State abortion bans=== | |||
| On ], ], ] ] signed into law a ] which made performing abortions a ]. That law was subsequently repealed in a ] held on ] of the same year. .<ref>Myers, Megan. ''Argus Leader'', (]). Retrieved ].</ref> On ] ], ]’s House Public Health Committee voted to approve a ban on abortion, but that bill died after the House and Senate failed to agree on compromise legislation.<ref>MacIntyre, Krystal. "", ''Jurist News Archive'' (]). Retrieved ].</ref> Several states have enacted so-called "trigger laws" which "would take effect if Roe v. Wade is overturned."<ref>"", ''Reuters'' (]). Retrieved ].</ref> | |||
| ==See also== | |||
| * ] | |||
| == References == | |||
| {{reflist|2}} | |||
| {{refbegin}} | |||
| *{{cite book |last=Critchlow |first=Donald T. |authorlink=Donald T. Critchlow |title=The Politics of Abortion and Birth Control in Historical Perspective |year=1996}} | |||
| *{{cite book |last=Critchlow |first=Donald T. |authorlink=Donald T. Critchlow |coauthors= |title=Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America |year=2001}} | |||
| *{{cite book |last=Garrow |first=David J. |authorlink=David Garrow |coauthors= |title=Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade |year=1998}} | |||
| *{{cite book |last=Hull |first=N.E.H. |authorlink= |coauthors= |title=The Abortion Rights Controversy in America: A Legal Reader |year=2004}} | |||
| *{{cite book |last=Hull |first=N.E.H. |authorlink= |coauthors=Peter Charles Hoffer |title=Roe v. Wade: The Abortion Rights Controversy in American History |year=2001}} | |||
| *{{cite book |last=Mohr |first=James C. |title=Abortion in America: The Origins and Evolution of National Policy, 1800–1900 |year=1979}} | |||
| *{{cite book |author=Rubin, Eva R. ed. |title=The Abortion Controversy: A Documentary History |year=1994 }} | |||
| *{{cite book |last=Staggenborg |first=Suzanne |title=The Pro-Choice Movement: Organization and Activism in the Abortion Conflict |year=1994}} | |||
| {{refend}} | |||
| ==External links== | |||
| {{Spoken Misplaced Pages|Roe_vs_wade.ogg|2005-07-16}} | |||
| {{wikisource|Roe v. Wade}} | |||
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