Federal Government
Roe v. Wade
1973 - Continuing Controversy

The name Norma McCorvey is just another name to most Americans and indeed, the world.

But if the name "Jane Roe"¹ is mentioned, a vast majority of people would immediately recognize "her" as a major player on the brightly lit judicial stage, with its central theme of fetal "right to life" weighed against a woman's "right to privacy."

The very thought of Roe v. Wade instantly creates a verbal, sometimes physical, battleground, as if the "line in the sand" scenario was being relived and replayed 170 years after the dust had settled in the bloody arena of the Alamo.

No other decision made by the United States Supreme Court has exerted such far-reaching ramifications, and generated so much controversy, as Roe.

Background

"The times, they are a-changin'." America was entrenched in a war it apparently could not win. The "Hippie Generation" was in full swing. Women across the country were demanding equal rights with men. They also demanded respect.

Regarding Roe, it could have been any woman burdened by an unwanted pregnancy. McCorvey was just available to an aggressive young female² attorney from Austin, Texas, to use as a test case challenging Texas law forbidding abortion.

It also could have been almost any attorney in any state that held abortion to be a crime.

In Griswold v. Connecticut (1965), Sarah Weddington, the Texas attorney, saw the case as a possible precursor to the Roe case, if it got all the way to the Supreme Court, which she anticipated.

In Griswold, the court held that a "right of privacy" was an integral part of the Bill of Rights and the 14th Amendment's due process clause.

As a part of Griswold, constitutional protection was given to the "right of privacy," as applied to the possession of birth control pharmaceuticals.

The case before the Supreme Court

The first time Roe was heard before the court, in December 1971, the justices were not impressed by the oral arguments, although Justice Harry Blackmun (appointed by Richard M. Nixon, and the Junior Associate of the court) wrote an opinion that would strike down the Texas law as "unconstitutionally vague."

This also was at a time of flux in the court's makeup: Justices Hugo Black (a holdover from the Franklin D. Roosevelt administration) and John Harlan (Dwight D. Eisenhower) had resigned from the court in September, and President Nixon was about to appoint two new justices.

Those appointments could alter the final vote on Roe, so Chief Justice Warren Burger (Nixon appointee) urged that the case be held over for re-argument, to a time that the court would be at full strength. It would be October 1972 before the re-arguments took place.

The decision

The court issued its decision in January 1973: By a majority vote of 7-2, the court voted to strike down the Texas law. Justices Byron White (John F. Kennedy) and William Rehnquist (one of Nixon's new appointees) dissented.

A similar law in Georgia, the lesser-known Doe v. Bolton, was struck down by the same majority on the same day.

The defining opinion. Justice Blackmun again wrote the majority opinion: That state laws outlawing abortion were struck down, allowing abortions in the first trimester, or three months, of pregnancy. After that period of time, abortions were allowed to safeguard the woman's health.

The court held that the word "Person" in the Constitution "does not include the unborn." Further, after the first trimester, the state still has an interest in protecting the health of the mother.

As to the "right of privacy" issue, the court found that although the Constitution "does not explicitly mention any right of privacy," the court ruled that there was a "constitutional right of privacy in the 1st, 4th, 227:5th], 9th, and 14th amendments." The right to privacy was broad enough to "encompass a woman's decision whether or not to terminate her pregnancy."

It also was determined that the knotty question of "whether a fetus can enjoy Constitutional protection is separate from the notion of when life begins," would not be resolved by the court.

It should be noted that by the time the court considered the matter, McCorvey had given birth, which under "normal rules of the court," would have rendered the lawsuit moot.

The court saw otherwise, treating this case as an exception, in that they knew the decision and subsequent opinion they were about to make would cover similar suits in the future. They recognized that "pregnancy litigation seldom will survive much beyond the trial stage," thus denying due process to the plaintiff.

Dissenting justices White and Rehnquist voiced their disgust, calling the court's decision an "exercise of raw judicial power . . .(with no Contitutional support) The court simply fashions and announces a new constitutional right for pregnant mothers . . .."

Ramifications. The Roe decision immediately triggered protests across America, polarizing the nation into two camps: the Pro-Life and the Pro-Choice factions. Conservatives were pulled further to the right, liberals to the left, the middle ground vacated.

Letter-writing campaigns to the Supreme Court, the creation of the Pro-Life Movement, picket lines attempting to stop women from entering abortion clinics, targeting abortion doctors with harassment — even murder — all were the direct results of the decision.

Those of the more liberal camp, such as Justice Blackmun, continued to make their voices heard, praising Roe as "essential to women's equality and reproductive freedom."

In response to Roe, many states chose to limit certain rights to an abortion. Some of the laws that spun off the case dealt with requiring parental consent to obtain an abortion for minors, spousal consent laws, laws barring state funding for abortions, mandated waiting periods, requirements that certain informational pamphlets be read before going on with the abortion, and many more.

Legislation at the national level occurred in September 1976, when the "Hyde Amendment," essentially banning federal funding for abortions, was enacted. Gone, too, were abortions in overseas military hospitals, and international family-planning clinics can no longer receive federal aid.

In his opinion in the 2000 case Stenberg v. Carhart, Justice Stephen Breyer (Bill Clinton) comments,

"Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering."

The pendulum, however, was beginning to swing back to the right.

President Ronald Reagan, who favored legislative restrictions on abortions, created his infamous "litmus test" for federal judicial appointments. Justice Sandra Day O'Connor (Reagan) began to dissent on the court's abortion cases, claiming that the "trimester" stance was "unworkable." Burger, shortly before his retirement, advanced the notion that Roe should be "re-examined."

New associate justice Antonin Scalia (Reagan), who replaced Burger on the court, was known to be anti-Roe, but Robert Bork's nomination was scuttled by the liberal wing when it was feared that Roe might be overturned. Anthony Kennedy (another Reagan appointee) also was seen as a potential vote to overturn it.

And so it went.

Challenges to Roe v. Wade

Squabbling among the justices was beginning to polarize even that venerable body.

In a key 1989 decision, Chief Justice Rehnquist sided with the 5-4 majority in Webster v. Reproductive Health Services. Although he opposed overruling Roe, Rehnquist modified the trimester clause and upheld several abortion restrictions. Justice O'Connor concurred in refusing to overturn Roe. Justice Scalia refused to join in the plurality decision because it refused to overturn Roe. Justice Blackmun was furious because the plurality opinion "signaled doom for the right to an abortion."

When Roe supporters Justice William Brennan (Eisenhower) and Justice Thurgood Marshall (Lyndon B. Johnson) retired, their replacements, named by George H.W. Bush (Justices David Souter and Clarence Thomas), were thought to be conservative enough to help overturn Roe.

The court as a whole, did, in fact, reexamine Roe in the 1992 case Planned Parenthood v. Casey, and upheld its validity, 5-4. State-level attempts to ban "partial birth abortions" (a procedure performed during the fifth month of gestation or later) were also struck down by the high court along the same voting lines.

Ongoing Controversy

There have been further attempts in Congress to legislate the banning of third trimester abortions. Even George W. Bush has entered the arena by proposing an amendment to the Constitution banning third trimester abortions. The case, at present essentialy a class action suit, has now involved all three branches of the federal government.

In a strange twist of fate, McCorvey, after giving birth, and after her conversion to Christianity, now comes down on the side of the Pro-Life movement.

¹ "Jane Roe" is the accepted form of alias when a female wishes to remain anonymous in much the same way as an unidentied male is known as "John Doe."


² The term "female" is not used here as a sexist, degrading adjective. Quite the contrary. Sarah Wedington, the attorney, could easily empathize with McCorvey as no male ever could, and therefore could present the case with a passion and an insight that a male could only imagine.


³ Italics added for emphasis.

Off-site search results for "Roe v. Wade"...

Roe v. Wade
Title:Roe v. Wade US Citation:410 U.S. 113 (1973) Docket:70-18 Events:Decided - January 22, 1973Reargued - October 11, 1972Argued - December 13, 1971 Subjects: Privacy: Abortion, Including Contraceptives Facts:Roe, a Texas resident, soRoe v. Wade US Citation:410 U.S. 113 (1973) Docket:70-18 Events:Decided - January 22, 1973Reargued - October 11, 1972Argued - December 13, 1971 Subjects: Privacy: Abortion, Including Contraceptives Facts:Roe, a Texas resident, sought to ...
^{http://www.oyez.org/oyez/resource/case/334/print}

Roe v. Wade
Title: Roe v. Wade Author: U.S. Government Year Published: 1973 ROE v. WADE Decided January 22, 1973 MR. JUSTICE BLACKMUN delivered the opinion of the csourt. MR. JUSTICE REHNQUIST, dissenting. MR. JUSTICE STEWART, concurring.   A pRoe v. Wade Author: U.S. Government Year Published: 1973 ROE v. WADE Decided January 22, 1973 MR. JUSTICE BLACKMUN delivered the opinion of the csourt. MR. JUSTICE REHNQUIST, dissenting. MR. JUSTICE STEWART, concurring.   A pROE v. WADE Decided January 22, 1973 MR. JUSTICE BLACKMUN delivered the opinion of the csourt. MR. JUSTICE REHNQUIST, dissenting. MR. JUSTICE STEWART, concurring.   A pregnant ...
^{http://www.civics-online.org/library/formatted/texts/roe_wade.html}

ROE v. WADE
ROE v. WADE Decided January 22, 1973 MR. JUSTICE BLACKMUN delivered the opinion of the Court. MR. JUSTICE REHNQUIST, dissenting. MR. JUSTICE STEWART, concurring. A pregnant single woman (Roe) brought a class action challengROE v. WADE Decided January 22, 1973 MR. JUSTICE BLACKMUN delivered the opinion of the Court. MR. JUSTICE REHNQUIST, dissenting. MR. JUSTICE STEWART, concurring. A pregnant single woman (Roe) brought a class action challenging the ...
^{http://www.tourolaw.edu/patch/Roe/}

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