Roe v. Wade

Roe v. Wade
Supreme Court of the United States
Argued December 13, 1971 Reargued October 11, 1972 Decided January 22, 1973
Full case name	Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County
Citations	410 U.S. 113 (more) 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
Argument	Oral argument
Case history
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. U.S. District Court for the Northern District of Texas affirmed in part, reversed in part.
Court membership
Chief Justice Warren E. Burger Associate Justices William O. Douglas · William J. Brennan Jr. Potter Stewart · Byron White Thurgood Marshall · Harry Blackmun Lewis F. Powell Jr. · William Rehnquist
Case opinions
Majority	Blackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell
Concurrence	Burger
Concurrence	Douglas
Concurrence	Stewart
Dissent	White, joined by Rehnquist
Dissent	Rehnquist
Laws applied
U.S. Const. Amend. XIV; Tex. Code Crim. Proc. arts. 1191–94, 1196

Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision by the United States Supreme Court on the issue of abortion. The Court held that a woman's right to an abortion is determined by her current trimester of pregnancy:

• In the first trimester, the state cannot restrict a woman's right to an abortion in any way. The court stated that this trimester begins at conception and ends at the "point at which the fetus becomes 'viable'".
• In the second trimester, the state may only regulate the abortion procedure "in ways that are reasonably related to maternal health" as defined in the companion case of Doe v. Bolton.
• In the third trimester, the state can choose to restrict or proscribe abortion as it sees fit 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").

The Court rested these conclusions on a constitutional right to privacy emanating from the Due Process Clause of the Fourteenth Amendment, also known as substantive due process.

In disallowing many state and federal restrictions on abortion in the United States, Roe v. Wade prompted a national debate that continues today, about issues including whether and to what extent abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role should be of religious and moral views in the political sphere. Roe v. Wade reshaped national politics, dividing much of the nation into pro-choice and pro-life camps, while activating grassroots movements on both sides.

History of the case

In September 1969, Norma L. McCorvey discovered she was pregnant. She returned to Dallas, where friends advised her to assert falsely that she had been raped, because then she could obtain a legal abortion (with the understanding that Texas's anti-abortion laws allowed abortion in the cases of rape and incest). However, this scheme failed, as there was no police report documenting the alleged rape. She attempted to obtain an illegal abortion, but found the unauthorized site shuttered, closed down by the police. Eventually, she was referred to attorneys Linda Coffee and Sarah Weddington.

In 1970, attorneys Linda Coffee and Sarah Weddington filed suit in a U.S. District Court in Texas on behalf of Norma L. McCorvey (under the alias Jane Roe). At the time, McCorvey was no longer claiming her pregnancy was the result of rape, and she later acknowledged she had lied earlier about having been raped. The defendant in the case was Dallas County District Attorney Henry Wade, representing the State of Texas. "Rape" is not mentioned anywhere in the court documents and was never a consideration in Roe v. Wade. Norma McCorvey's affidavit does not include the word "rape".

The district court ruled in McCorvey's favor on the merits, but declined to grant an injunction against the enforcement of the laws barring abortion. The district court's decision was based upon the Ninth Amendment, and the court also relied upon a concurring opinion by Justice Arthur Goldberg in the 1965 Supreme Court case of Griswold v. Connecticut, regarding a right to use contraceptives. 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.

Roe v. Wade ultimately reached the U.S. Supreme Court on appeal. Following a first round of arguments, Justice Harry Blackmun drafted a preliminary opinion that emphasized what he saw as the Texas law's vagueness. Justices William Rehnquist and Lewis F. Powell, Jr. joined the Supreme Court too late to hear the first round of arguments. Therefore, Chief Justice Warren Burger proposed that the case be reargued; this took place on October 11, 1972. Weddington continued to represent Roe, and Texas Assistant Attorney General Robert C. Flowers stepped in to replace Wade. Justice William O. Douglas 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.

Supreme Court decision

Harry Blackmun wrote the Court’s opinion.

The court issued its decision on January 22, 1973, with a 7 to 2 majority vote in favor of McCorvey. Burger and Douglas' concurring opinion and White's dissenting opinion were issued separately, in the companion case of Doe v. Bolton.

Brief summary

The Roe Court deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny.

The opinion of the Roe Court, written by Justice Harry Blackmun, declined to adopt the district court's Ninth Amendment rationale, and instead asserted that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Stewart in his concurring opinion from the companion case Doe v. Bolton, 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 due process clause.

Thorough summary

The majority opinion is organized into twelve sections preceded by a brief preface:

In the Preface, Justice Blackmun begins by describing the nature of the case: two separate "constitutional challenges to state criminal abortion legislation". He notes that that the Texas statutes are "typical of those that have been in effect in many States for approximately a century," whereas "[t]he Georgia statutes [from the companion case of Doe v. Bolton] in contrast, have a modern cast".

Next, he notes that the judges recognize the "sensitive and emotional" nature of the controversy; acknowledges that the difficulty is further complicated by "population growth, pollution, poverty, and racial overtones"; and describes how the court will approach a problem of this character: "by constitutional measurement, free of emotion and of predilection", but also (because "[w]e seek earnestly to do this") by "medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries." He concludes by noting Justice Holmes' famous Lochner dissent:

[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

Section I briefly outlines the challenged Texas abortion statutes.

Section II characterizes the factual and procedural backgrounds of Jane Roe's and Mary Doe's litigation, including the District Court's rulings regarding the procedural questions (here, justiciability, standing, and abstention) and the merits (here, the requests for declaratory judgment and injunctive relief).

Section III is a single paragraph resolving that under the law of Federal Court procedure, the opinions in Mitchell v. Donovan and Gunn v. University Committee do not foreclose review a case of this kind when it is properly here on appeal under § 1253.

Section IV issues the court's decision on the procedural questions described in Section II.

Section V is a single paragraph introducing the discussion of the merits, led by the following:

The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras ... or among those rights reserved to the people by the Ninth Amendment ...

Section VI surveys the history of abortion regulations, in eight subparts:

1. Ancient attitudes (including those of the Persian Empire, Greek times, the Roman era).
2. The Hippocratic oath.
3. The common law.
4. The English statutory law.
5. The American law.
6. The position of the American Medical Association.
7. The position of the American Public Health Association.
8. The position of the American Bar Association.

According to the Roe Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." Prior to 1821, when Connecticut passed the first state statute criminalizing abortion, abortion in the United States was sometimes considered a common law crime. Every state had abortion legislation by 1900. However, the court concluded that it could not find a sufficient historical basis to justify the Texas statute.

In Section VII, the court describes the interests that could be cited to justify criminalizing abortion:

1. an interest in discouraging women from engaging in "illicit sexual conduct", which interest would be undermined by making abortion widely available;
2. an interest in reducing access to a risky medical procedure—which abortion could still be in the late stages of pregnancy, despite modern medical techniques such as antibiotics; and
3. an interest in protecting prenatal life.

Blackmun rejected the first interest out-of-hand, writing that "no court or commentator has taken the argument seriously" and that in any event it could not be cited in support of this statute, which failed to "distinguish between married and unwed mothers". Accordingly, the only valid state interests are reducing medical risk and protecting prenatal life. (In Section X the Court reiterated, "[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman [and] still another important and legitimate interest in protecting the potentiality of human life.") Thus, "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".

In Section VIII, the Court also identified a countervailing right that would have to be weighed against these state interests: namely, a Constitutional right to privacy: "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." The innovation of the Roe court was to locate this "right of privacy" in the due process clause of the Constitution. Although the Constitution does not explicitly mention any right of privacy, the Court had previously found support for various privacy rights—directly (in several provisions of the Bill of Rights and the Fourteenth Amendment) as well as indirectly (in the "penumbra" of the Bill of Rights) -- most recently in Griswold v. Connecticut.

In Section IX, the Court adds that there was no legal grounds for factoring into this balancing test any right to life of the unborn fetus. The fetus would have such a right if it were defined as a legal person for purposes of the Fourteenth Amendment, but the original intent of the Constitution (up to the enactment of the Fourteenth Amendment in 1868) did not include protection of the unborn. The Court emphasized that its determination of whether a fetus can enjoy constitutional protection neither meant to reference, nor intervene in, the question of when life begins:

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, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

In Section X, the Court explained that the trimester of pregnancy is highly relevant to the weight of the factors in this balancing test. Thus, during the first trimester, the state cannot restrict a woman's right to an abortion in any way; during the second trimester, the state may only regulate the abortion procedure "in ways that are reasonably related to maternal health"; during the third trimester, the state can choose to restrict or proscribe abortion as it sees fit 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").

Section XI succinctly summarizes the Court's legal conclusions, explaining that a Texas-style criminal statute was unconstitutional, and recapitulating the permissible extent of state regulation in each of the three Constitutionally relevant time periods of pregnancy (i.e. divided by "approximately the end of the first trimester" and "the stage subsequent to viability").

Section XII resolves the present dispute: it struck down the Texas statute and characterized the relief that should be accorded to Roe.

Justiciability

An aspect of the decision that attracted comparatively little attention was the Court's disposition of the issues of standing and mootness. Under the traditional interpretation of these rules, Jane Roe's appeal was "moot" because she had already given birth to her child and thus would not be affected by the ruling; she also lacked "standing" to assert the rights of other pregnant women. As she did not present an "actual case or controversy" (a grievance and a demand for relief), any opinion issued by the Supreme Court would constitute an advisory opinion, a practice in which the Court traditionally did not engage.

The Court concluded that the case came within an established exception to the rule; one that allowed consideration of an issue that was "capable of repetition, yet evading review." This phrase had been coined in 1911 by Justice Joseph McKenna. 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."

Dissents

Byron White was the senior dissenting justice.

Associate Justices Byron R. White and William H. Rehnquist wrote emphatic dissenting opinions in this case. Justice White wrote:

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant 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.

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:

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.

From this historical record, Rehnquist concluded 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 pro-life supporters suggest – contrary to the holding in this case – that life begins at fertilization (also referred to as conception), and should therefore be protected by the Constitution; the dissenting justices in Roe instead wrote that decisions about abortion "should be left with the people and to the political processes the people have devised to govern their affairs." Other pro-life supporters argue that, in the absence of consensus of when life begins, it is best to avoid the risk of doing harm. Every year on the anniversary of the decision, pro-life supporters march up Constitution Avenue to the Supreme Court Building in Washington, D.C. in the March for Life.

Protestors at the 2009 March for Life rally against Roe v. Wade

Advocates of Roe describe it as vital to preservation of women's rights, personal freedom, and privacy. Denying the abortion right has been equated to compulsory motherhood, and some scholars (not including any member of the Supreme Court) have argued that abortion bans therefore violate the Thirteenth Amendment:

When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the Thirteenth Amendment….[E]ven if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant.

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 democratic process, rather than through an all-encompassing ruling from the Supreme Court. Some opponents do not feel that there is a violation of the 13th Amendment in cases where sex was consensual, as sex involves the risk of pregnancy. Voluntary sex includes assuming the risk of pregnancy, discrediting the notion of "involuntary servitude". To assume the risk of pregnancy and then end the life of the fetus without allowing the fetus the right to defend itself can be considered a violation of the Constitution.

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.

At a rally for Roe v. Wade, on the anniversary of the decision. Albert Wynn and Planned Parenthood president Gloria Feldt, in front of the Supreme Court steps

In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent for minors to obtain abortions, parental notification laws, spousal mutual consent laws, spousal notification laws, laws requiring abortions to be performed in hospitals but 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 abortion, or laws mandating women read certain types of literature and watch a fetal ultrasound prior to undergoing an abortion. Congress in 1976 passed the Hyde Amendment, barring federal funding of abortions (except in the case of rape, incest, or life of the mother) for poor women through the Medicaid program. 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 Harris v. McRae (1980).

The most prominent organized groups that mobilized in response to Roe are the National Abortion Rights Action League on the pro-choice side, and the National Right to Life Committee on the pro-life side. The late Harry Blackmun, author of the Roe opinion, was a determined advocate for the decision. Others have joined him in support of Roe, including Judith Jarvis Thomson, who before the decision had offered an influential defense of abortion. Perhaps the most notable opposition to Roe comes from Roe herself. In 1995, Norma L. McCorvey revealed that she considers herself pro-life and is now a vocal opponent to abortion.

Roe remains controversial. Polls show continued division about its landmark rulings, and about the decision as a whole.

Internal memoranda

Internal Supreme Court memoranda surfaced in the Library of Congress 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." Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to the state legislatures, though he joined Blackmun's decision.

The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the Court's decision. The "viability" criterion, which Blackmun acknowledged was arbitrary, is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.

Liberal critiques

Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One reaction has been to argue that Justice Blackmun reached the correct result but went about it the wrong way. Another reaction has been to argue that the ends achieved by Roe do not justify the means.

Justice John Paul Stevens, in a 2007 interview, averred that Roe "create[d] a new doctrine that really didn’t make sense," and lamented that if Justice Blackmun "could have written a better opinion[, that] ... might have avoided some of the criticism." His colleague Justice Ruth Bader Ginsburg had, before joining the Court, criticized the decision for terminating a nascent democratic movement to liberalize abortion law. Watergate prosecutor Archibald Cox wrote: "[Roe’s] failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations.... Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."

In a 1973 article in the Yale Law Journal, Professor John Hart Ely criticized Roe as a decision which "is not constitutional law and gives almost no sense of an obligation to try to be." Ely added: "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure." Professor Laurence Tribe had similar thoughts: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Liberal law professors Alan Dershowitz, Cass Sunstein, and Kermit Roosevelt have also expressed disappointment with Roe.

Jeffrey Rosen and Michael Kinsley echo Ginsburg, arguing that a democratic movement would have been the correct way to build a more durable consensus in support of abortion rights. William Saletan wrote that "Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference." Benjamin Wittes has written that Roe "disenfranchised millions of conservatives on an issue about which they care deeply". And Edward Lazarus, a former Blackmun clerk who "loved Roe’s author like a grandfather" wrote: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible....Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms."

Public opinion

See also: Abortion in the United States: Public opinion

A Gallup poll conducted in May 2009 indicates that a minority of Americans, 37%, believe that abortion should be legal in any or most circumstances, compared to 41% in May 2008. Similarly, an April 2009 Pew Research Center poll showed a softening of support for legal abortion compared to the previous years of polling. People who said they support abortion in all or most cases dropped from 54% in 2008 to 46% in 2009.

In contrast, an October 2007 Harris poll on Roe v. Wade asked the following question:

In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?

In reply, 56 percent of respondents indicated favor while 40 percent indicated opposition. The Harris organization concluded from this poll that "56 percent now favors the U.S. Supreme Court decision." Pro-life activists have disputed whether the Harris poll question is a valid measure of public opinion about Roe's overall decision, because the question focuses only on the first three months of pregnancy. The Harris poll has tracked public opinion about Roe since 1973:

Regarding the Roe decision as a whole, more Americans support it than support overturning it. When pollsters describe various regulations that Roe prevents legislatures from enacting, support for Roe drops.

Role in subsequent decisions and politics

Opposition to Roe on the bench grew when President Reagan—who supported legislative restrictions on abortion—began making federal judicial appointments in 1981. Reagan denied that there was any litmus test: "I have never given a litmus test to anyone that I have appointed to the bench…. I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We've had too many examples in recent years of courts and judges legislating."

In addition to White and Rehnquist, Reagan appointee Sandra Day O'Connor began dissenting from the Court's abortion cases, arguing in 1983 that the trimester-based analysis devised by the Roe Court was "unworkable." Shortly before his retirement from the bench, Chief Justice Warren Burger suggested in 1986 that Roe be "reexamined"; the associate justice who filled Burger's place on the Court—Justice Antonin Scalia—vigorously opposed Roe. Concern about overturning Roe played a major role in the defeat of Robert Bork's nomination to the Court in 1987; the man eventually appointed to replace Roe-supporter Lewis Powell was Anthony M. Kennedy.

The Supreme Court of Canada used the rulings in both Roe and Doe v. Bolton as grounds to find Canada's federal law restricting access to abortions unconstitutional. That Canadian case, R. v. Morgentaler, was decided in 1988.

Webster v. Reproductive Health Services

Main article: Webster v. Reproductive Health Services

In a 5-4 decision in 1989's Webster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution," In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.

In concurring opinions, O'Connor refused to reconsider Roe, and Justice Antonin Scalia criticized the Court and O'Connor for not overruling Roe. Blackmun– author of the Roe opinion– stated in his dissent that White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their plurality opinion "foments disregard for the law." White had recently opined that the majority reasoning in Roe v. Wade was "warped."

Planned Parenthood v. Casey

Main article: Planned Parenthood v. Casey

With the retirement of Roe supporters William J. Brennan in 1990 and Thurgood Marshall in 1991, and their replacement by David Souter and Clarence Thomas, pro-choice advocates viewed Roe for the first time as being in danger. During the confirmation hearings of David Souter, NOW president Molly Yard declared that confirming Souter would mean "ending freedom for women in this country."

According to NPR, in deliberations for Planned Parenthood v. Casey (1992), an initial majority of five Justices that would have overturned Roe foundered when Justice Kennedy switched sides. 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." Justices Rehnquist, Scalia, White and Thomas signed would have overturned Roe. Only Justice Blackmun would have retained Roe entirely and struck down all aspects of the statute at issue in .Casey.

Scalia's dissent acknowledged that abortion rights are of "great importance to many women", but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed. Scalia concluded: "[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish."

Stenberg v. Carhart

Main article: Stenberg v. Carhart

During the 1990s, Nebraska attempted to ban a certain second-trimester abortion procedure known as intact dilation and extraction (sometimes called partial birth abortion). The Nebraska ban allowed other second-trimester abortion procedures called dilation and evacuation abortions. Ginsburg (who replaced White) stated, "this law does not save any fetus from destruction, for it targets only 'a method of performing abortion'." The Supreme Court struck down the Nebraska ban by a 5-4 vote in Stenberg v. Carhart (2000), citing a right to use the safest method of second trimester abortion.

Kennedy, who had co-authored the 5-4 Casey decision upholding Roe, was among the dissenters in Stenberg, writing that Nebraska had done nothing unconstitutional. 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 sometimes called "partial birth abortion."

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

Main article: Gonzales v. Carhart

In 2003, Congress passed the Partial-Birth Abortion Ban Act, which led to a lawsuit in the case of Gonzales v. Carhart. The Court had previously ruled in Stenberg v. Carhart that a state's ban on "partial birth abortion" was unconstitutional because such a ban would not allow for the health of the mother. The membership of the Court changed after Stenberg, with John Roberts and Samuel Alito replacing Rehnquist and O'Connor, respectively. Further, the ban at issue in Gonzales v. Carhart was a clear federal statute, rather than a relatively vague state statute as in the Stenberg case.

On April 18, 2007, the Supreme Court handed down a 5 to 4 decision upholding the constitutionality of the Partial-Birth Abortion Ban Act. Kennedy wrote 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 John Roberts, 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 Commerce Clause.

Activities of Norma McCorvey

Norma McCorvey became a member of the pro-life movement in 1995; she now supports making abortion illegal. In 1998, she testified to Congress:

It was my pseudonym, Jane Roe, which had been used to create the "right" to like abortion out of legal thin air. But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15, 20 years later and say, "Thank you for allowing me to have my five or six abortions. Without you, it wouldn't have been possible." Sarah never mentioned women using abortions as a form of birth control. We talked about truly desperate and needy women, not women already wearing maternity clothes.

As a party to the original litigation, she sought to reopen the case in U.S. District Court in Texas to have Roe v. Wade overturned. However, the Fifth Circuit decided that her case was moot, in McCorvey v. Hill. In a concurring opinion, Judge Edith Jones agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development, but Jones said she was compelled to agree that the case was moot. On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, and McCorvey's appeal ended.

Presidential positions

File:Roe v. Wade Headline 1973.jpg

The New York Times cover page from January 23, 1973. President Lyndon B. Johnson died the same day as the Roe decision.

President Richard Nixon did not publicly comment about the decision. In private conversation later revealed as part of the Nixon tapes, Nixon said "There are times when an abortion is necessary, I know that. When you have a black and a white" (a reference to interracial pregnancies) "or a rape."; Nixon was also concerned that greater access to abortions would foster "permissiveness," and said that "it breaks the family."

The Roe decision was opposed by Presidents Gerald Ford, Ronald Reagan, and George W. Bush. President George H.W. Bush also opposed Roe, though he had supported abortion rights earlier in his career. In addition, as governor of California, Ronald Reagan had signed legislation allowing abortion in certain situations.

Jimmy Carter supported legal abortion from an early point in his political career, in order to prevent birth defects and in other extreme cases; he encouraged the outcome in Roe and generally supported abortion rights. Roe was also supported by President Bill Clinton. President Barack Obama has taken the position that, "Abortions should be legally available in accordance with Roe v. Wade."

State laws regarding Roe

Several states have enacted so-called trigger laws which "would take effect if Roe v. Wade is overturned." Those states include Illinois, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota. Additionally, many states did not repeal pre-1973 statutes that criminalized abortion, and some of those statutes could automatically spring back to life in the event of a reversal of Roe.

Other states have passed laws to maintain the legality of abortion if Roe v. Wade is overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington.

See also

• List of United States Supreme Court cases, volume 410
• Pro-Choice
• Pro-Life
• Roe effect
• Dubay v. Wells - this is considered, by the National Coalition for Men, to be the Roe v. Wade for men

References

• Critchlow, Donald T. (1996). The Politics of Abortion and Birth Control in Historical Perspective. University Park, PA: Pennsylvania State University Press. ISBN 0271015705.
• Critchlow, Donald T. (1999). Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America. New York: Oxford University Press. ISBN 0195046579. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help)
• Garrow, David J. (1994). Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. New York: Macmillan. ISBN 0025427555. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help)
• Hull, N.E.H. (2004). The Abortion Rights Controversy in America: A Legal Reader. Chapel Hill: University of North Carolina Press. ISBN 0807828734. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help)
• Hull, N.E.H. (2001). Roe v. Wade: The Abortion Rights Controversy in American History. Lawrence, KS: University Press of Kansas. ISBN 0700611436. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
• Mohr, James C. (1979). Abortion in America: The Origins and Evolution of National Policy, 1800–1900. Oxford: Oxford University Press. ISBN 0195026160.
• Rubin, Eva R. [ed.] (1994). The Abortion Controversy: A Documentary History. Westport, CT: Greenwood. ISBN 0313284768. {{cite book}}: |first= has generic name (help)
• Staggenborg, Suzanne (1994). The Pro-Choice Movement: Organization and Activism in the Abortion Conflict. New York: Oxford University Press. ISBN 0195065964.

External links

• Full text of opinion with links to cited material
  • Justia
• Audio of oral argument at www.oyez.org