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{{caselaw|Roe v. Wade|410 U.S. 113|1973}}

{{caselaw|Roe v. Wade|410 U.S. 113|1973}}

''Roe'' was a landmark Supreme Court ruling legalizing [[abortion]] in many circumstances in 1973.  Its companion case issued on the same day, ''[[Doe v. Bolton]]'', gave any physician the authority to perform an abortion without limitation simply by claiming that the women had a health reason, which could include even an alleged psychological or economic reason.

'''''Roe v. Wade''''' was a landmark 1973 [[U.S. Supreme Court]] decision which held that it was [[constitutionality|unconstitutional]] for the Federal government or states to prohibit or "unreasonably limit" access to [[abortion]], prior to a fetus' [[viability]].  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."

==Opinion==

==Opinion==

The opinion written by Justice [[Harry Blackmun]].  Notable for its definition of [[fundamental rights]], the opinion is an expansion of the Supreme Court's jurisprudence under the [[Fourteenth Amendment]], which, along with [[Griswold v. Connecticut]], sets up spheres of personal activity which the state cannot regulate without good cause.<ref>See generally Griswold v. Connecticut, 381 U.S. 479</ref>  Specifically, the Court held that the [[Fourteenth Amendment]] protects implicit rights enumerated in its [[penumbra]], if not the text itself, which includes the [[right to privacy]].<ref>See Roe v. Wade, 410 U.S. 113</ref> The holding of the Court has become a foundation of fundamental rights jurisprudence, and has been heavily relied upon since it was decided, and underpins many other famous cases, such as [[Lawrence v. Texas]].<ref>See, e.g., Lawrence v. Texas, 539 U.S. 558</ref>

The opinion, written by Justice [[Harry Blackmun]], centers around the holding that abortion is a "fundamental right" under the [[U.S. Constitution]] and [[substantive due process]] under the [[Fourteenth Amendment]].  Essentially, he argued, 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]]<ref>See generally Griswold v. Connecticut, 381 U.S. 479</ref> and [[Lawrence v. Texas]].<ref>See, e.g., Lawrence v. Texas, 539 U.S. 558</ref>, all of which set up spheres of personal activity which states cannot regulate without "good cause."

Specifically, Blackmun argued 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:

Specifically, Blackmun argued 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:

::(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. “<ref> Roe v. Wade, 410 U.S. 113, 165 (U.S. 1973)</ref>

::(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. “<ref> Roe v. Wade, 410 U.S. 113, 165 (U.S. 1973)</ref>

This framework allowed the woman's interests to trump the interests of the fetus in all cases. All state-level total bans of late-term abortions, and late-term abortion procedures, have since been found unconstitutional. 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.

 

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''.<ref>The Economist, http://www.economist.com/agenda/displaystory.cfm?story_id=E1_VVJRJTN</ref>  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.<ref>See Lawrence v. Texas, supra (relying strongly on Roe v. Wade)</ref>

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''.<ref>The Economist, http://www.economist.com/agenda/displaystory.cfm?story_id=E1_VVJRJTN</ref>  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.<ref>See Lawrence v. Texas, supra (relying strongly on Roe v. Wade)</ref>

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.<ref>The Economist, http://www.economist.com/world/na/displaystory.cfm?story_id=E1_VNSRJQV</ref>

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.<ref>The Economist, http://www.economist.com/world/na/displaystory.cfm?story_id=E1_VNSRJQV</ref>

For more information, see [[Constitutional Arguments on Choice]].

''Main article: [[Constitutional Arguments on Choice]]''

''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-choice]] activists generally argue that it does, while [[pro-life]] activists generally argue that it does not.

==References==

==References==