Difference between revisions of "Roe v. Wade"

Revision as of 16:18, May 14, 2007

Roe was a landmark Supreme Court ruling legalizing abortion in limited circumstances in 1973.

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.^[1] 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.^[2] 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.^[3]

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:

”(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. “^[4]

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.

Controversy

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.^[5] 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.^[6]

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.^[7]

For more information, see Constitutional Arguments on Choice.

References

1. ↑ See generally Griswold v. Connecticut, 381 U.S. 479
2. ↑ See Roe v. Wade, 410 U.S. 113
3. ↑ See, e.g., Lawrence v. Texas, 539 U.S. 558
4. ↑ Roe v. Wade, 410 U.S. 113, 165 (U.S. 1973)
5. ↑ The Economist, http://www.economist.com/agenda/displaystory.cfm?story_id=E1_VVJRJTN
6. ↑ See Lawrence v. Texas, supra (relying strongly on Roe v. Wade)
7. ↑ The Economist, http://www.economist.com/world/na/displaystory.cfm?story_id=E1_VNSRJQV