ROE v. WADE

Roe, et al. v. Wade 410 U.S. 113 (1973)

FACTS & ISSUES

In 1973 a pregnant women identified as 'Roe' brought a class action before the U.S. Supreme Court on the constitutionality of the criminal abortion laws in Texas which banned seeking or attempting an abortion except for in the case of medical advice which stated an abortion was necessary in order to save the life of the mother. A licensed physician who had two prosecutions pending against him in the state of Texas for two abortions intervened by permit. A couple who had no children identified as the Does, and the wife not being pregnant made a separate attack on the laws and alleged injury based on the "future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health." (Roe, et al. v. Wade 410 U.S. 113 (1973) the actions were consolidated by a three-judge District Court and held that "Roe and Hallford, and members of their classes had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing on those plaintiff's Ninth and Fourteenth Amendment rights. The Doe's compliant was ruled not justiciable and the appeal was filed directly to the Court on the injunctive rulings with cross-appeals from the District Court's grant to declaratory relief to Roe and Hallford being filed by the appellee.

II. DECISION by the U.S. SUPREME COURT

CONCURRING OPINIONS

JUSTICE BLACKMON

The opinion of the court stated by Mr. Justice Blackmun states that the Texas federal appeal along with the companion case in Georgia Doe v. Bolton, post p.179 "...present constitutional challenges to state criminal abortion legislation. The Texas status under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes in contrast, have a modern case and are a legislative product that, to an extent at least, obviously reflect the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue." Roe, et al. v. Wade 410 U.S. 113 (1973) Justice Blackmun states that the task of the Supreme Court is to bring the issue to resolution by "constitutional measurement, free of emotion and predilection." Roe, et al. v. Wade 410 U.S. 113 (1973) Blackmun states that in this case the Supreme Court had to "bear in mind...Mr. Justice Holmes admonition in his dissent in Lochner v. New York, 198 U.S. 45, 76 (1905) that "The Constitution is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States." Roe, et al. v. Wade 410 U.S. 113 (1973) in summary, Justice Blackmun's opinion relates: (1) a state criminal abortion statute of the current Texas type, 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 volatile 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. - for the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [p165] 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; and (2) the State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined." Roe, et al. v. Wade 410 U.S. 113 (1973) Blackmun states that the court's decision is one that "consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day." Roe, et al. v. Wade 410 U.S. 113 (1973)

JUSTICE STEWART

Justice Stewart concurred with the opinion of the Supreme Court in this matter stating that in 1963 the Court in Ferguson v. Skupa, 372 U.S. 726, purported to sound the death knell for the doctrine of substantive due process, a doctrine under which many state laws had in the past been held to violet the Fourteenth Amendment." Roe, et al. v. Wade 410 U.S. 113 (1973) it is related by Justice Stewart that only two years following Ferguson and Skupa that Griswold v. Connecticut, 381 U.S. 479 it was held by the court in Connecticut that law relating to birth control was unconstitutional and that it is clear that the decision in Griswold "can be rationally understood only as a holding that the Connecticut statute substantially invaded the 'liberty' that is protected by the Due Process Clause of the Fourteenth Amendment." Roe, et al. v. Wade 410 U.S. 113 (1973) the meaning of liberty within the framework of the Constitution of a free people must be, according to Justice Stewart be interpreted in a broad manner and while there is no particular mention in the Constitution of personal choice rights relating to marriage and family that the 'liberty' protected under the Due Process Clause of the Fourteenth Amendment "covers more than those freedoms explicitly named in the Bill of Rights." Roe, et al. v. Wade 410 U.S. 113 (1973) Justice Stewart concludes by stating the evidence of infringement of Due Process Clause of the Fourteenth Amendment rights by the Texas abortion statute.

CHIEF JUSTICE BURGER

Chief Justice Burger, stated an agreement with the U.S. Supreme Court that within the framework of protection of the Fourteenth Amendment to the U.S. Constitution that "the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using [410 U.S. 208] the term health in its broadest medical context." Roe, et al. v. Wade 410 U.S. 113 (1973)

JUSTICE DOUGLAS

Justice Douglas, in a concurring opinion relates that the questions presented in Rowe v Wade "go far beyond the issues of vagueness...They involve the right of privacy,..." Justice Douglas states: "The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the Constitution. Many of them, in my view, come [410 U.S. 211] within the meaning of the term "liberty" as used in the Fourteenth Amendment." Roe, et al. v. Wade 410 U.S. 113 (1973 Justice Douglas states that first "is the autonomous control over the development and expression of one's intellect, interests, tastes, and personality and the second is "freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception and the education and upbringing of children." Roe, et al. v. Wade 410 U.S. 113 (1973) Stated third is "the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf." Roe, et al. v. Wade 410 U.S. 113 (1973) All of these rights are stated to be fundamental and likewise to be "subject of regulation on showing of 'compelling state interest'. Roe, et al. v. Wade 410 U.S. 113 (1973) Justice Douglas holds that the statute of Georgia "is at war with the clear message of these cases - that a woman is free to make the basic decision whether to bear an unwanted child." Roe, et al. v. Wade 410 U.S. 113 (1973) Justice Douglas further states: "There is no doubt that the State may require abortions to be performed by qualified medical personnel. The legitimate objective of preserving the mother's health clearly supports such laws. Their impact upon the woman's privacy is minimal. But the Georgia statute outlaws virtually all such operations -- even in the earliest stages of pregnancy." Roe, et al. v. Wade 410 U.S. 113 (1973) Justice Douglas concludes by stating: "There is no doubt that the State may require abortions to be performed by qualified medical personnel. The legitimate objective of preserving the mother's health clearly supports such laws. Their impact…