Roe v. Wade

Legal decision

By: U.S. Supreme Court

Date: January 22, 1973

Source: Roe v. Wade 410 U.S. 113 (1973). Available at: ?http://supreme.justia.com/us/410/113/case.html? (accessed April 12, 2006).

About the Author: At the time of the Roe v. Wade decision, the U.S. Supreme Court was composed of Justices Warren Burger (Chief), William Douglas, William Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis F. Powell, and William Rehnquist.

INTRODUCTION

Roe v. Wade 410 U.S. 113 (1973) was a landmark case in the debate over a woman's right to terminate an unwanted pregnancy. Brought forward by attorney Sarah Weddington in 1970, on behalf of Norma McCorvey, a young woman from Texas whose identity was protected by the pseudonym "Jane Roe," the case was argued before the U.S. Supreme Court in 1971, again in 1972, and finally decided on January 22, 1973. District Attorney Henry Wade of Dallas County, Texas, was the defendant in the case. In a seven-to-two decision in favor of the plaintiff, the U.S. Supreme Court agreed that most existing state laws regulating abortion violated a woman's constitutional right to privacy. As a result of this ruling, Texas's abortion laws and all legislation outlawing or restricting abortion in the United States was overturned.

The following excerpt from the text of the court's decision discusses the point at which it is appropriate for the state to regulate and intervene in the decision to abort a human fetus.

PRIMARY SOURCE

X

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."

With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester…. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like….

XI

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, and that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(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.

SIGNIFICANCE

At the time of Roe v. Wade, Texas law stated that the abortion of a human fetus was a crime, except when medically advised for the purpose of saving the life of the mother. Norma McCorvey, who claimed to be pregnant as the result of a rape, challenged the law that prevented her from obtaining an abortion by arguing that it was vague and violated the rights guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution. The case was eventually expanded to include two other plaintiffs: James Hubert Hallford, a doctor who had been charged with violations of Texas abortion laws and John and Mary Doe, aliases for a married couple whose doctor had advised them against pregnancy.

The district court that first heard the case in Dallas County, Texas ruled in favor of "Jane Roe," but refused to grant an injunction allowing McCorvey to have an abortion in violation of Texas law. Both Roe and Wade appealed the district court decision and the case was heard by the Supreme Court in December 1971. Justice Harry Blackmun wrote a decision striking down the Texas abortion law, but Chief Justice Warren Burger proposed that the case be held over for rehearing, allowing two newly appointed justices, William Rehnquist and Lewis F. Powell, Jr., to participate in the decision.

The Supreme Court rendered its final decision on December 22, 1973, voting seven to two to strike down the Texas law prohibiting abortion. In that decision, the court defined the limits of state power and individual freedom with respect to each of the trimesters of pregnancy. As stated above, abortion during the first trimester of pregnancy must be left to the sole discretion of the woman and her medical counsel, effectively ending state power to intervene in first trimester abortions. Following the end of the first trimester, the state may regulate abortion in ways that reasonably relate to the "preservation and protection of maternal health." During the final stage of pregnancy in which a fetus is a viable life that can survive outside of the womb (third trimester), the state reserves the right, if it chooses, to regulate or even prohibit abortion, unless it is necessary to protect the health and life of the mother.

In its decision, the court addressed three historical justifications for the criminalization of abortion. First, it considered the notion that the availability of abortion would make women more likely to be sexually promiscuous. The court criticized the lack of evidence to support this notion and noted that this idea failed to differentiate between married and unmarried mothers. According to the court, this justification for denying access to abortion appears to be nothing more than an ill-informed attempt to regulate women's sexuality. Second, the court addressed the idea that the abortion procedure was a risky one prior to the development of antibiotics and remains risky in the later stages of pregnancy. Third, the court considered the interest that the state has in protecting life. The court held that the latter two points are valid concerns and justify the possibility of state regulation and limitation of abortion for health reasons in the second and third trimesters, given current knowledge about the progression of pregnancy.

Roe v. Wade was also an important case for its discussion of standing and mootness, although these issues received very little attention in the public debate. Generally in legal proceedings, the resolution of the issue at stake renders the case moot—no longer having bearing or reason to proceed in the court. The U.S. Supreme Court does not render decisions of law in hypothetical cases to guide policy. In this case, the legal challenge to Texas abortion law took longer to resolve than the term of Roe's pregnancy. Given that the issue—her desire for an abortion, contrary to Texas law—had been resolved by the birth of her baby, the court could have deemed the case moot and dismissed the proceedings, since the ruling would not be applicable to Roe herself. However, the U.S. Supreme Court found that the appeal should be allowed to proceed for two reasons. First, because Roe could potentially become pregnant again, necessitating a ruling on the matter, and second, because any legal discussion having bearing on pregnancy was likely to outlast the duration of the specific pregnancy in question. The court reasoned that to rule the case moot at the con-clusion of the pregnancy would effectively stymie any potential litigation on such issues and would be contrary to the constitutional rights of women.

The Roe v. Wade decision was highly controversial in the United States and was opposed by vocal pro-life and religious organizations. In response to Roe v. Wade, and within its scope, many states enacted new abortion legislation. In some cases, these laws limit access to abortions in varying degrees, including requiring parental consent for the procedure to be performed on a minor, and prohibiting most late-term abortions that use intact dilation and extraction—socalled partial-birth abortions. In November 2003, President George W. Bush signed a federal law banning the practice of partial-birth abortion in the United States. However, the Partial Birth Abortion Ban Act did not take immediate effect, as it awaited the outcome of appeals and challenges filed by prochoice advocates. Then, on January 31, 2006, the law was declared unconstitutional by two separate appeals courts—one in New York and the other in California. The legislation was found to be unconstitutional because, contrary to Roe v. Wade decision, the law did not allow exceptions in the interest of the mother's health. In February 2006, the legislation was reintroduced before the U.S. Supreme Court and a decision on the case is pending. Roe v. Wade continues to impact judicial decision and abortion policy in the United States to the present day.

FURTHER RESOURCES

Books

Critchlow, Donald T. Intended Consequences: Birth Control, Abortion and the Federal Government in Modern America. New York: Oxford University Press, 2001.

Garrow, David J. Liberty and Sexuality: The Making of Roe v. Wade. Berkeley: University of California Press, 1998.

Hull, N. E. H. Roe v. Wade: The Abortion Right Controversy in American History. Lawrence, Kans.: University Press of Kansas, 2000.

Periodicals

Devins, Neal. "Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade." Michigan Law Review 93 (1995): 1433-1459.

Farr, Kathryn Ann. "Shaping Policy Through Litigation: Abortion Law in the United States." Crime and Delinquency 39 (1993): 167-183.

Garrow, David J. "Abortion Before and After Roe v. Wade: An Historical Perspective." Albany Law Review 62 (1999): 833.

Web sites

Cornell Law School. Supreme Court Collection. "410 U.S. 113, Roe v. Wade: Appeal from the United States District Court for the Northern District of Texas." ?http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZS.html? (accessed February 22, 2006).