American History - Roe v Wade

ROE v. WADE in AMERICAN LEGAL HISTORY

In 1969, Norma McCorvey became pregnant and sought to terminate the pregnancy through surgical abortion but was unable to because in her home state of Texas, abortion was illegal except in extreme cases of medical necessity. At that time, only three states in the entire nation permitted elective abortion and the option to travel to obtain a legal procedure was cost prohibitive for a poor single woman in McCorvey's position. McCorvey retained attorneys Linda Coffee and Sarah Weddington and filed suit or her behalf (as "Jane Roe") challenging the Texas law prohibiting abortion in the landmark case Roe v. Wade, 410 U.S. 113 (1973).

The case eventually was appealed all the way to the United States Supreme Court, resulting in a controversial decision invalidating state laws prohibiting elective abortion until the third trimester. Technically, the decision was based on judicial interpretations of privacy principles first introduced in two earlier Supreme Court decisions, Griswold v. Connecticut 381 U.S. 479 (1965) and Eisenstadt v. Baird, 405 U.S. 438 (1972) that arose in connection with laws prohibiting the use of contraceptives. The much broader social impact was that the decision restored equality to poor women unable to travel out of state at will for a legal abortion. At that time, approximately 10,000 women obtained abortions in the U.S. annually, either by having the procedure performed in one of the three states where it was not prohibited by law or by securing authorization from a physician certifying the medical necessity of the procedure, which, in most cases, was not factually accurate but a courtesy available to women of comparative wealth and social connections. Background and History of Abortion Laws in the United States:

In the 1960s and 1970s, the nation underwent substantial social changes in connection with the counterculture revolution, also commonly referred to as the Hippie movement. In addition to questioning authority through political activism, the counterculture emphasized the reevaluation of traditional social mores and moral issues, such as in the realm of sexual conduct and the recreational use of psychedelic drugs, in particular. The popular theme of "free love" and "make love not war" (in relation to the unpopular Vietnam War) in turn gave rise to increased awareness and concern over so- called "reproductive rights" and legislation that unfairly regulated private matters such as the decision to terminate pregnancy through surgical intervention.

Since 1900, Texas and almost every other state in the nation had enacted legislation prohibiting elective abortion, which accounted for considerable additional impoverishment of poor single women and families throughout the nation who had little alternative but to raise every child conceived, even by accident. The factual circumstances actually impacted poor women much more than women of means, because the latter could typically travel out of state for the purposes of terminating a pregnancy legally. In many cases, they were also able to do so without leaving their home states because wealthier and socially connected individuals often secured medical authorization taking advantage of specific exemptions in state laws in cases of medical necessity. The only alternative available to many women involved risking their lives (as well as criminal prosecution) in so-called back-alley abortions performed by practitioners who lacked formal medical training of licenses. The Procedural Road from State Courts to the Supreme Court Appeal:

Norma McCorvey (as "Jane Roe") filed suit at the district level in Texas challenging the constitutionality of Texas state laws prohibiting abortions in the state in 1970. The Dallas County attorney general, Henry Wade, was the named defendant in the case. The district court actually ruled in favor of McCorvey, but ultimately failed to resolve the matter in a practical sense by refusing to issue an injunction to prevent the existing legislation from being enforced. On appeal to the Supreme Court, the case was granted certiorari despite the fact that it required suspending the traditional rule that the Supreme Court does not issue advisory opinions on hypothetical situations or on moot situations that resolved themselves factually before litigation. By the time the case reached the Supreme Court, McCorvey had already given birth, but the Court entertained the case anyway, reasoning that if the traditional standards of mootness and the exclusion of advisory opinions were upheld, no pregnant plaintiff could ever successfully litigate a similar claim before being precluded by mootness. In a 7-2 decision, the Supreme Court ruled in favor of McCorvey, instantly invalidating all state laws prohibiting elective medical abortions. More specifically, the Court ruled that: (1) within the first trimester, the right to an abortion could not be restricted by state law; (2) during the second trimester, states could impose reasonable restrictions based on legitimate medical concerns for the mother, and (3) during the third trimester, states could regulate or prohibit abortions.

The Significance of the 9th and 14th Amendments to the Constitution:

At the district court level, the panel of judges in Texas relied primarily on the Ninth and Fourteenth Constitutional Amendments. The Ninth Amendment reads as follows: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," which the Texas district court construed to mean that absence of a specific right to privacy from the Constitution did not preclude any such right at all because it was reserved to the People.

The Supreme Court reached the same conclusion, but instead of relying on the Ninth Amendment rationale articulated by the district court, the Supreme Court applied the Due Process Clause of the Fourteenth Amendment which reads, in relevant part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Supreme Court determined that the right to obtain an abortion was a fundamental right, which like voting, marriage, and the right to travel freely, entitled it to the highest level of judicial scrutiny applied to state laws pertaining to abortion. That level of strict scrutiny requires that state laws in the realm of abortions had to meet a three-pronged test according to which the state would have to establish: (1) that legislation served a compelling governmental interest; (2) that it was narrowly tailored to achieve its specific objectives without being either over-inclusive or under-inclusive; and (3) that the government objective could not be achieved through any less restrictive means.

Social Impact:

The Roe decision was monumental in many respects, but none more important than in its recognition in the fundamental right to determine private matters of personal health and belief without governmental interference. It had a ripple effect in society and instantly became a sensitive and controversial topic, primarily because the underlying basis for the objection to it were religious in origin. Christians (and Catholics in particular) specifically believe that human life begins at conception; it follows, therefore, that any abortion, regardless of what stage of pregnancy, is tantamount to "murder."

In fact, those beliefs fueled such fanatical opposition to the decision that so-called "Pro-Life" activists began protesting outside of abortion clinics almost immediately and actually burning and bombing abortion clinics staring in Oregon in March 1976 and February 1978, respectively. In the first decade and a half since Roe, the National Abortion Federation reported 82 bombings and arsons on clinics throughout the United States. Meanwhile, proponents of the "Pro-Choice" position supporting the decision strongly object to any imposition of religious-based beliefs or definitions on secular laws as a fundamental violation of the concept of separation of church and state upon which this nation was originally founded.

In retrospect, the Roe decision greatly improved the predicament of women in the U.S. although it did not necessarily solve the problem completely. The prospect of being subjected to intimidation and deliberate public shaming, especially in their own communities, still presented a significant obstacle to the poorer individuals who would have to rely much more on public abortion facilities than their wealthier counterparts who could afford more discrete options that provided more privacy and protection from Pro-

Life demonstrators.

Analysis:

While the Roe decision was necessary and beneficial to American society, it was actually predicated upon dubious reasoning from the technical legal perspective and medical principals. In its reasoning, the Supreme Court distinguished the third trimester from the first and second primarily because of the belief that the beginning of the third trimester coincided with the viability of the fetus, defined by the Court as the ability of the fetus to survive outside the womb. That rationale has since proven itself to be completely arbitrary, especially since modern medical technology has pushed the concept of fetal viability well into the second trimester. In fact, the "new" standard of fetal viability is substantially similar to the much older standard discussed a century earlier in relation to what was then referred…