Roe v. Wade
Roe v. Wade (Jan. 22, 1973) was the epitome of liberal judicial supremacy, in which the U.S. Supreme Court created a new right in the Constitution for a woman to have an abortion at any time during pregnancy. It weakened the legitimacy of the Court, and resulted in a political reaction against it that continued for decades. The decision caused the death of more than 50 million unborn children.
The Roe decision was issued the same day as Doe v. Bolton, a companion case, which held that states could not prohibit a physician from performing an abortion after the fetus has become "viable" if the physician determines that the abortion is necessary for the "health" of the mother, which could include "physical, emotional, psychological, familial, and the woman's age," all of which the Court determined were "relevant to the wellbeing of the patient."
The women represented by "Roe" and "Doe" have both since come forward to oppose these decisions, and "Doe" has even described the deceit of the lawsuit brought in her name.
In addition to creating a new constitutional right, Roe v. Wade also created an exception to the usual rule that one must face a threat of imminent prosecution in order to have standing. In Roe, the Court held that there was standing because the alleged injury was said to be "capable of repetition yet evading review."
This decision is, therefore, one of the most famous examples of law by judicial fiat, that is, judges writing the laws. It created a dangerous precedent that is still followed today by supporters of a "living constitution."
Majority and concurrences
The opinion, written by Justice Harry Blackmun, declares that abortion is a "fundamental right" under the U.S. Constitution and substantive due process under the Fourteenth Amendment. Writing for the 7-2 Court, Justice Blackmun held that abortion is a fundamental right because it falls under the "penumbra" of the right to privacy. Roe provided the underpinning for cases such as Griswold v. Connecticut and Lawrence v. Texas, all of which set up spheres of personal activity which states cannot regulate without "good cause."
Specifically, Blackmun found that the right to terminate a pregnancy is in the penumbra of privacy rights protected by substantive due process, since pregnancy can occasion life-changing events for women, changes not to be taken lightly. However, he noted that the woman's interest in her own privacy is counterbalanced, obviously, by the fetus' interest in life, and the state's interest in protecting life. The question, then, is when each interest trumps the other, and what that means at law. Blackmun set up this framework specifically:
- ”(a) 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.
- (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
- (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. “
The "health of the mother" was defined to include the physical, psychological, and emotional health of the mother. There can be no requirement that the abortion reason be reported to anyone. The upshot is that any pregnant woman could get an abortion for any reason throughout the entire nine months as a constitutional right, provided that she could find an abortionist to do it.
Associate Justice Potter Stewart concurred with the Court's majority opinion on the basis that liberty extends to a women's right to "choose" to end her pregnancy through abortion. Stewart cited the Fourteenth Amendment to further argue that the woman's interests should be protected by the Due Process Clause of the Fourteenth Amendment. However, Stewart had only interpreted the Fourteenth Amendment in a very biased manner to support his personal opinion, as the phrase "no person should be deprived of life, liberty, or property without due process of law" would, by definition, apply to unborn children and not just the mother.
Associate Justice William O. Douglas noted in his concurrence that legalizing abortion is part of "protecting privacy" and that sometimes these decisions need to be made by the mother, as he listed pregnancy discomforts, supposed higher mortality rates, mental and physical health burdens, and even lifelong stigma as possible reasons for allowing abortion. Rather than give much rational nor logical explanation, Douglas exaggerated the notion of constitutional rights and offered examples of possible incidents to support his personal opinion that was part of his judicial activism.
William Rehnquist cited his dissent in Roe v. Wade on the argument that Roe's complaint does not justify nor give the court power to outlaw abortion restrictions in every state. He also listed 36 states with abortion restrictions to further argue his point in the general sense that powers not given to the federal government should be left to the states (also known as the Tenth Amendment).
Byron White's dissent in Roe v. Wade was owed to his findings that nowhere in the Constitution supports the majority of the Court's opinion. He is known to have said: "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." White also concluded that the Court's majority opinion values convenience over potential life and that its ruling in prohibiting the protection of that potential life was unacceptable to him.
The Roe holding was subsequently modified by Planned Parenthood v. Casey, a plurality decision which did away with the trimester framework, as well as lessening the degree of scrutiny of regulation from "fundamental rights" analysis to "undue burden analysis."
Recently the federal Partial Birth Abortion Act (upheld in Gonzales v. Carhart) approved a ban on a particular kind of late-term abortion procedure. This was the first complete ban on a particular abortion procedure found to be constitutional since Roe v. Wade.
Several cases, up for decision at the Supreme Court in the 2007 term, may whittle away at the holding of the case. Specifically, a South Dakota law banning nearly all abortions is seen as a deliberate attempt to force a test case, where "pro-life" activists will have a chance to ask the Supreme Court to reconsider Roe. However, while Roe may be highly distinguished in these cases, the fact that the central holding of Roe v. Wade is so important to modern civil rights jurisprudence suggests that the whole case is unlikely to be overturned in its entirety, based on the United States concept of stare decisis, or respect for legal precedent. Under this outlook, losing Roe's holding would be fatal to an entire constitutional structure, which the Court disfavors.
Some commentators suggest that limitations of Roe may actually be good for the "pro-choice" movement, as it would allow "pro-life" activists to vent their animosity against judicial activism, while forcing the public to create a more moderate legislative solution to the problem. These commentators perceive the American public as more moderate than either the "pro-life" or "pro-choice" movements.
Roe and subsequent decisions following it have incited intense public controversy over whether abortion is such a "fundamental right" that it overrides the right of a child to live, the right of a father to prevent the abortion of his child, and the right of states to legislate the issue in accord with the will of the people. Pro-abortion activists generally argue that it does, while pro-life activists generally argue that it does not.
- See generally Griswold v. Connecticut, 381 U.S. 479
- See, e.g., Lawrence v. Texas, 539 U.S. 558
- Roe v. Wade, 410 U.S. 113, 165 (U.S. 1973)
- Roe v. Wade/Concurrence Stewart
- Thurgood Marshall’s Pro-Abortion Record Good Indicator of Elena’s Kagan’s
- Roe v. Wade—Dissenting Opinion
- The Economist, https://www.economist.com/agenda/displaystory.cfm?story_id=E1_VVJRJTN
- See Lawrence v. Texas, supra (relying strongly on Roe v. Wade)
- The Economist, https://www.economist.com/world/na/displaystory.cfm?story_id=E1_VNSRJQV