On January 22, 1973, ABC Evening News anchor Howard K. Smith announces the United States Supreme Court's landmark decision in the Roe v. Wade case, which ruled unconstitutional a Texas state law that prohibited abortion.
Roe v. Wade
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Roe v. Wade, legal case in which the U.S. Supreme Court on January 22, 1973, ruled (7–2) that unduly restrictive state regulation of abortion is unconstitutional. In a majority opinion written by Justice Harry A. Blackmun, the Court held that a set of Texas statutes criminalizing abortion in most instances violated a woman’s constitutional right of privacy, which it found to be implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment (“…nor shall any state deprive any person of life, liberty, or property, without due process of law”).
The case began in 1970 when “Jane Roe”—a fictional name used to protect the identity of the plaintiff, Norma McCorvey—instituted federal action against Henry Wade, the district attorney of Dallas county, Texas, where Roe resided. The Supreme Court disagreed with Roe’s assertion of an absolute right to terminate pregnancy in any way and at any time and attempted to balance a woman’s right of privacy with a state’s interest in regulating abortion. In his opinion, Blackmun noted that only a “compelling state interest” justifies regulations limiting “fundamental rights” such as privacy and that legislators must therefore draw statutes narrowly “to express only the legitimate state interests at stake.” The Court then attempted to balance the state’s distinct compelling interests in the health of pregnant women and in the potential life of fetuses. It placed the point after which a state’s compelling interest in the pregnant woman’s health would allow it to regulate abortion “at approximately the end of the first trimester” of pregnancy. With regard to the fetus, the Court located that point at “capability of meaningful life outside the mother’s womb,” or viability.
Repeated challenges since 1973 narrowed the scope of Roe v. Wade but did not overturn it. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Supreme Court established that restrictions on abortion are unconstitutional if they place an “undue burden” on a woman seeking an abortion before the fetus is viable. In Gonzales v. Carhart (2007), the Court upheld the federal Partial-Birth Abortion Ban Act (2003), which prohibited a rarely used abortion procedure known as intact dilation and evacuation. In Whole Woman’s Health v. Hellerstedt (2016), the Court invoked its decision in Casey to strike down two provisions of a Texas law requiring abortion clinics to meet the standards of ambulatory surgical centres and abortion doctors to have admitting privileges at a nearby hospital. Four years later, in June Medical Services L.L.C. v. Russo (2020), the Court invoked Whole Woman’s Health to declare unconstitutional a Louisiana statute that was, as the majority noted, nearly identical to Texas’s admitting-privileges law.
In 1998, having undergone two religious conversions, McCorvey publicly declared her opposition to abortion. In the documentary AKA Jane Roe (2020), however, a dying McCorvey claimed that she had been paid by antiabortion groups to support their cause.
Ten Legal Reasons to Reject Roe
Decisions of the U.S. Supreme Court rarely attract much public interest. One news cycle and a few days' discussion in the op-ed section is probably the norm for even the most important and sweeping decisions. The average person probably has to cast back to a high school history course to recall the names of even a few landmark cases other than Miranda v. Arizona (known mainly from the scripts of popular police shows).
But one Supreme Court decision eclipses all others in the past century. Far from being forgotten, in the thirty years since Roe v. Wade announced that the "constitutional" right to privacy encompasses a woman's decision to abort her child, its fame (or infamy) just keeps growing.
How Roe is Perceived
For many Americans, Roe is a symptom of and catalyst for a continuing decline in American culture and institutions. It represents a tragic failure of the government, an abdication of its duty to defend the vulnerable and innocent. The judicially-created regime permitting abortion on request throughout pregnancy has eroded principles on which this nation was founded – the sanctity of life, the equal dignity of all, and impartial justice. Even the fundamental principle of self-government is shaken when seven unelected judges can overturn the will of the people expressed in the laws of 50 states. And how does one begin to assess the meaning and impact of destroying over 40 million children?
Many other Americans, less attuned to public policy matters, hold a very different view of Roe v. Wade. They see Roe as being immutable, permanent, "settled law." "Abortion is a constitutional right." End of discussion. In thirty years, the Roe abortion license has been elevated by some to the stature of "freedom of speech," "trial by jury" and other bedrock American principles.
It is not surprising that many people share this distorted view of Roe v. Wade. For thirty years, the abortion industry has refined and perfected this message. Advocates like Planned Parenthood's president, Gloria Feldt, proclaim (with no apparent irony): "It's been 30 years since women were guaranteed the basic human right to make their own childbearing choices – a right as intrinsic as the right to breathe and to walk, to work and to think, to speak our truths, to thrive, to learn, and to love."
Roe has also become a lodestar for abortion advocates and the politicians who support their agenda. Any event or policy affecting a child before or near birth is minutely scrutinized for its potential to "undermine Roe v. Wade." Anything (and anyone) that threatens the shaky "constitutionality" of Roe must be stopped. For example, state laws which punish violent attacks on unborn children and their mothers are denounced as schemes "designed to chip away at the constitutional rights of women." Even expanding eligibility under the State Children's Health Insurance Program to provide prenatal care to children from conception onward is attacked as "a guerilla attack on abortion rights." 2
Allegiance to Roe has become the sine qua non for presidential aspirants of one political party and a litmus test used by many politicians in evaluating judicial nominees. Senate filibusters are being used to block confirmation votes on nominees. Individuals who have received the American Bar Association's highest recommendation based on their knowledge of law, their integrity and judicial temperament are blocked chiefly because abortion lobbyists suspect they are not sufficiently deferential to Roe v. Wade.
Already two presidential candidates seeking election in 2004 have announced that, if elected, they would appoint no one to the Supreme Court "if they don't commit to supporting Roe v. Wade and a woman's right to choose." This, too, is an unprecedented admission. They strain to explain why their position does not constitute a single issue "litmus test" for judicial appointees: "The focus is on the constitutional right that Roe established in America," says one. "I want jurists to agree, to swear to uphold the Constitution." Are abortion and the Constitution really synonymous?
Many Americans, including members of Congress, believe or act as if Roe v. Wade and the U.S. Constitution have equal authority. They are wrong, both as to Roe's place in American constitutional law and as to the duty of citizens and judges to follow it unquestioningly. Few decisions in the history of the Supreme Court have cried out so loudly for reversal, on both moral and legal grounds. And rarely has any decision been so fraught with conspicuous errors of law, fact and reasoning as the majority opinion in Roe.
This article is addressed to all who may think that Roe deserves a measure of deference as a landmark of constitutional law (notwithstanding its immoral outcome). Not so! Legally speaking, Roe is an abomination, and an embarrassment to lawyers and public officials who feel compelled to defend it.
Who Says So?
Among the legal scholars who have roundly criticized the Court's ruling in Roe as not being grounded in the U.S. Constitution are the following:
- Six justices of the U.S. Supreme Court, unfortunately not simultaneously seated – White, Rehnquist, Scalia, Thomas, Kennedy 3 and O'Connor 4
Ten Legal Reasons to Condemn Roe
1. The Court's decision in Roe v. Wade exceeded its constitutional authority.
Under the legal system established by the U.S. Constitution, the power to make laws is vested in Congress and retained by state legislatures. It is not the role of the Supreme Court to substitute the policy preferences of its members for those expressed in laws enacted by the people's elected representatives. The role of the judiciary in constitutional review is to determine if the law being challenged infringes on a constitutionally protected right.
Justice O'Connor reiterates this principle, quoting Chief Justice Warren Burger:
Irrespective of what we may believe is wise or prudent policy in this difficult area, "the Constitution does not constitute us as 'Platonic Guardians' nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, 'wisdom,' or 'common sense.'" 8
In Roe v. Wade and its companion case, Doe v. Bolton, however, the Court struck down criminal laws of Texas and Georgia which outlawed certain abortions by finding that these laws (and those of the other 48 states) violated a "right of privacy" that "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Such a right is nowhere mentioned in the Constitution nor derivable from values embodied therein.
In his dissenting opinion in Doe v. Bolton, Justice Byron White, joined by Justice William Rehnquist, wrote:
I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers . and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 states are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
2. The Court misrepresents the history of abortion practice and attitudes toward abortion.
The apparent purpose of the Roe opinion's long historical excursion is to create the impression that abortion had been widely practiced and unpunished until the appearance of restrictive laws in the prudishly Victorian 19th century. One example is adequate to show how distorted is Justice Harry Blackmun's rendition of history. He must overcome a huge hurdle in the person of Hippocrates, the "Father of Medicine," and his famous Oath which has guided medical ethics for over 2,000 years. The Oath provides in part: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel and in like manner I will not give to a woman a pessary to produce abortion." 9 This enduring standard was followed until the Roe era and is reflected in Declarations of the World Medical Association through 1968: "I will maintain the utmost respect for human life, from the time of conception. . " 10 But Justice Blackmun dismisses this universal, unbroken ethical tradition as nothing more than the manifesto of a fringe Greek sect, the Pythagoreans, to which Hippocrates is alleged to have belonged!
3. The majority opinion in Roe wrongly characterizes the common law of England regarding the status of abortion.
The Court's strained analysis and conclusion – "it now appears doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus" – are rejected by many legal scholars. 11
William Blackstone's Commentaries on the Laws of England (1765-1769), an exhaustive and definitive discussion of English common law as it was adopted by the United States shows that the lives of unborn children were valued and protected, even if their beginning point was still thought to be "quickening" rather than conception:
Until well into the 19th century, it was assumed that a child's life may not begin – and certainly could not be proven to have begun to satisfy criminal evidentiary standards – prior to the time her movements were felt by the mother ("quickening"), at approximately 16-18 weeks' gestation. The Roe Court looks at the distinction in common law concerning abortions attempted before or after "quickening," and wrongly infers that the law allowed women great latitude to abort their children in the early months of pregnancy. This is like saying people had a general right to spread computer viruses before such acts were criminally prosecuted.
4. The Court distorts the purpose and legal weight of state criminal abortion statutes.
In the 19th century, in virtually every state and territory, laws were enacted to define abortion as a crime throughout pregnancy. They contained only narrow exceptions, generally permitting abortion only if necessary to preserve the mother's life. The primary reason for stricter abortion laws, according to their legislative history, was to afford greater protection to unborn children. This reflected a heightened appreciation of prenatal life based on new medical knowledge. It is significant that the medical profession spearheaded efforts to afford greater protection to unborn lives than had been recognized under the common law's archaic "quickening" distinction.
The existence of such laws, and their clear purpose of protecting the unborn, rebuts the Court's claim that abortion has always been considered a liberty enjoyed by women. These laws show broad acceptance of the view that the life of an unborn child is valuable and should be protected unless the mother's life is at risk. In that case, of course, both mother and child were likely to perish, given the primitive care then available for infants born prematurely.
How does the Court get around the impressive body of laws giving clear effect to the state's interest in protecting unborn lives? It attempts to devalue them by ascribing a completely different purpose: the desire to protect the mother's life and health from a risky surgical procedure. Applying the maxim "if the reason for a law has ceased to exist, the law no longer serves any purpose," the Court declares that abortion is now "safer than childbirth." Therefore, laws banning abortion have outlived their purpose.
5. A privacy right to decide to have an abortion has no foundation in the text or history of the Constitution.
Roe v. Wade locates a pregnant woman's "constitutional" right of privacy to decide whether or not to abort her child either "in the Fourteenth Amendment's concept of personal liberty . as we feel it is, or . in the Ninth Amendment's reservation of rights to the people."
The Court does not even make a pretense of examining the intent of the drafters of the Fourteenth Amendment, to determine if it was meant to protect a privacy interest in abortion. Clearly it was not. The Fourteenth Amendment was not intended to create any new rights, but to secure to all persons, notably including freed slaves and their descendants, the rights and liberties already guaranteed by the Constitution.
Several rhetorical devices are used to mask this absence of constitutional grounding. The Court mentions several specifically enumerated rights which concern an aspect of privacy, for example, the Fourth Amendment's "right of the people to be secure in their houses, papers, and effects, against unreasonable searches and seizures." However, the Court fails to connect these to the newly found "right" to abortion, because no logical connection exists.
Justice Blackmun attempts to graft abortion onto the line of decisions recognizing privacy/liberty rights in the following spheres: marriage (Loving v. Virginia, striking down a ban on interracial marriage) childrearing (Meyer v. Nebraska and Pierce v. Society of Sisters, upholding parental decision-making regarding their children's education) procreation (Skinner v. Oklahoma, finding unconstitutional a state law mandating sterilization of inmates found guilty of certain crimes) and contraceptive use by a married couple (Griswold v. Connecticut). Certainly marriage, and building and raising a family are fundamental aspects of human life that predate human laws and nations. They are implicit in the concept of liberty and the pursuit of happiness, though even these rights are subject to state limitation, such as laws against bigamy, incest, and child abuse and neglect.
But abortion does not fit neatly among these spheres of privacy. It negates them. Abortion is not akin to childrearing it's child destruction. A pregnant woman's right to abort nullifies the right to procreate upheld in "Skinner." He no longer has a right to bring children into the world, but only a right to fertilize an ovum, which his mate can then destroy without his knowledge or consent. The fear of government intruding into the marital bedroom by searching for evidence of contraceptive use drove the Griswold Court to find a privacy right for couples to use contraception in the "penumbras, formed by emanations from" various guarantees in the Bill of Rights. But however closely abortion and contraception may be linked in purpose and effect, they are worlds apart in terms of privacy. Abortions do not take place in the sacred precincts of marital bedrooms, preventing them does not require investigation of private sexual behavior, and they involve personnel other than the spouses.
A "privacy right" large enough to encompass abortion could also be applied to virtually any conduct performed outside the public view, including child abuse, possession of pornography or using illicit drugs. The liberty interest to be protected from state regulation is never really defined in Roe. Instead the Court describes at some length the hardships some women face, not from pregnancy, but from raising children:
Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.
By this reasoning, one might argue that Roe's liberty encompasses ridding oneself of unwanted toddlers! Ordinarily, the defense of rights requires us to forgo lethal methods and use means likely to create the least harm to others. We may not, for example, surround our house and yard with a high voltage fence to deter trespassers. This principle is upended in the abortion context. Adoption, for example, would effectively eliminate all the "hardships" of raising "unwanted" children by non-lethal means.
6. Although it reads the 14th Amendment extremely expansively to include a right of privacy to decide whether to abort a child, the Court in Roe adopts a very narrow construction of the meaning of "persons" to exclude unborn children.
Much is made of the fact that "person" as used elsewhere in the Constitution does not refer to unborn children when, for example, discussing qualifications for public office or census-taking. That point proves nothing. The Supreme Court has held that corporations are "persons" within the meaning of the 14th Amendment and they are not counted in the census, nor can a corporation grow up to be president.
The Roe Court also ignored the clear and uncontested biological evidence before them that individual human lives begin at conception: "We need not resolve the difficult question of when life begins." This is question determined by science, not philosophers or theologians or politicians. But while seeming to sidestep the question, the Court in fact resolved the question at birth, by allowing abortion to be legal throughout pregnancy. In the same vein, the Court refers to the unborn child as only a "potential life" (indeed, an actual life) from the moment of his or her conception.
The Roe opinion states that a contrary finding on "personhood" would produce the opposite result (presumably foreclosing the mother's privacy right to an abortion). One does not have to be a "person" in the full constitutional sense, however, for a state to validly protect one's life. Dogs can be protected from killing although they are not "persons." 13 And under the Endangered Species Act (ESA), people are prosecuted, fined and jailed for acts that may harm creatures, such as sea turtles, that are not "persons" in the full constitutional sense. Sea turtles are protected not only after they are hatched, but even while in the egg. In fact, each sea turtle egg removed from its nest constitutes a separate violation under the ESA, regardless of whether the sea turtle egg contained an embryo that was alive or "quick" or "viable" or even already deceased at the time of the taking.
7. The Roe Court assumed the role of a legislature in establishing the trimester framework.
Roe holds that in the first trimester of pregnancy, the mother's "privacy interest" in an abortion trumps state regulation. From the end of the first trimester to the child's "viability" – which the Court presumed to be no earlier than 26 weeks – the state can regulate abortion practice only in ways reasonably related to advancing the mother's health. In the final trimester, the state – in the interest of protecting the "potential life" of the child – can regulate and even proscribe abortion, except where necessary to preserve the mother's "life or health." Health (see point 8 below) is the exception that swallows the rule.
Pre-decision memoranda among members of the Roe Court acknowledged the serious flaw in establishing arbitrary, rigid time frames. Justice Blackmun himself admitted it was arbitrary. 14 A reply memorandum from Justice Potter Stewart stated:
One of my concerns with your opinion as presently written is . in its fixing of the end of the first trimester as the critical point for valid state action. . I wonder about the desirability of the dicta being quite so inflexibly "legislative."
My present inclination would be to allow the States more latitude to make policy judgments. . " 15
Geoffrey R. Stone, a law clerk to Justice Brennan when Roe was decided, was recently quoted as saying: "Everyone in the Supreme Court, all the justices, all the law clerks knew it was 'legislative' or 'arbitrary.'" 16
Justices O'Connor, White and Rehnquist denounced the arbitrary trimester framework in O'Connor's dissenting opinion in Akron:
[There] is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today. . [That] framework is clearly an unworkable means of balancing the fundamental right and the compelling state interests that are indisputably implicated.
The majority opinion of Justice Rehnquist in Webster v. Reproductive Health Services states:
The key elements of the Roe framework – trimesters and viability – are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle. . the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. As Justice White has put it, the trimester framework has left this Court to serve as the country's "ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States."
8. What Roe gives, Doe takes away.
Many Americans believe that abortion is legal only in the first trimester (or first and second trimester). Many pollsters and media outlets continue to characterize Roe v. Wade as the case which "legalized abortions in the first three months after conception." 17 In a recent television appearance, NOW's former president Patricia Ireland falsely claimed that "thirty-six states outlaw abortion in the third trimester."
As noted above, under Roe state laws banning late-term abortions must contain a "health" exception. Health is defined in Roe's companion case, Doe v. Bolton, as including "all factors — physical, emotional, psychological, familial, and the woman's age — relevant to the wellbeing of the patient. All these factors may relate to health." This definition negates the state's interest in protecting the child, and results in abortion on request throughout all nine months of pregnancy. The fact that the Court buries its improbably broad definition of health in the largely unread opinion in Doe v. Bolton makes it no less devastating.
9. The Court describes the right to abortion as "fundamental."
The Supreme Court has found certain rights fundamental. Expressed or implied in the Constitution, they are considered "deeply rooted in the history and traditions" of the American people or "implicit in the concept of ordered liberty," such as the free exercise of religion, the right to marry, the right to a fair trial and equal protection. A state law infringing on a fundamental right is reviewed under a rigorous "strict scrutiny" standard. In effect, there is a presumption against constitutionality. The Roe Court claims abortion is fundamental on the ground that it is lurking in the penumbras and emanations of the Bill of Rights or the 14th Amendment, along with privacy rights like contraceptive use. It's ludicrous to claim abortion is deeply rooted in American history or traditions or that our governmental system of "ordered liberty" implicitly demands the rights to destroy one's child, but it was an effective way to foreclose state regulations of abortion. The strict scrutiny test was later abandoned in Casey.
10. Despite the rigid specificity of the trimester framework, the opinion gives little guidance to states concerning the permissible scope of abortion regulation.
Abortion decisions that followed Roe chronologically have not followed Roe jurisprudentially. Many decisions have five separate opinions filed, often with no more than three justices concurring on most points. Eight separate opinions were filed in Stenberg v. Carhart (which effectively nullified laws in over two dozen states banning partial-birth abortion).
The 1992 decision in Planned Parenthood of Southeastern Pa. v. Casey could have resulted in Roe's reversal. The Casey Joint Opinion (there being no majority opinion) comes close to conceding that Roe was wrongly decided:
We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and, coming as it does after nearly 20 years of litigation in Roe's wake we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding.
Instead they jettisoned Roe's trimester framework and standard of legislative review, but kept Roe alive: Chief Justice Rehnquist's dissent in Casey, in which he is joined in part by Justices White, Scalia and Thomas states:
Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to "strict scrutiny," and could be justified only in the light of "compelling state interests." The joint opinion rejects that view. . Roe analyzed abortion regulation under a rigid trimester framework, a framework that has guided this Court's decision-making for 19 years. The joint opinion rejects that framework. .
Whatever the "central holding" of Roe that is left after the joint opinion finishe[d] . Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.
And later in that dissent:
Roe v. Wade stands as a sort of judicial Potemkin village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the façade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neither stare decisis nor "legitimacy" are truly served by such an effort.
Roe v. Wade must be reversed
Contrary to popular opinion, decisions of the U.S. Supreme Court are "often" reversed. 18 Stare decisis (let the decision stand) does not prevent reversal when the constitutional interpretation of a prior ruling is later understood to be flawed. Justice Rehnquist's dissent in Casey notes that the Court "has overruled in whole or part 34 of its previous constitutional decisions" in the past 21 years. It the Court's duty to reverse wrongly decided rulings. "Justices take an oath to uphold the Constitution — not the glosses of their predecessors." 19
The Casey plurality weighed the "integrity of the Court" (its reputation for being above political considerations) as more important than fidelity to the Constitution and, not incidentally, more important than the continuing destruction of over one million children annually. Roe must be reversed to restore integrity to the Court, meaning to the Constitution, political rights to the people and their elected representatives, and most importantly, the right to life to children in the womb.
Susan E. Wills is associate director of education for the Secretariat for Pro-Life Activities, USCCB.
Enlist lawyers in the parish —
Few people have read Roe v. Wade, and it's safe to assume that the media and pro-abortion groups will continue to distort its meaning. Use "Ten Legal Reasons to Reject Roe" as the basis for a talk by one or more lawyers in the parish. Offer to give the talk to teen and young adult groups and other groups in your parish as well as civics or government classes at Catholic high schools. Knowing the truth about Roe v. Wade equips us all to be better citizens.
Donate copies of "Ten Legal Reasons to Reject Roe" and "Political Responsibility: The Virtue of Rugged Hope" to your local Catholic High School for use in civics and government classes.
Encourage attorneys in your area to write articles for the legal community and general public on Roe v. Wade, as a profoundly flawed and unconstitutional decision.
Sponsor an essay contest for high school students on this or a similar topic: "How does the right to abortion affect the foundations of democracy?"
Roe v. Wade and decisions of the U.S. Supreme Court from 1893 can be found at www.findlaw.com/casecode/supreme.html.
Abortion: the Myths, the Realities, and the Arguments. Germain Grisez. New York: Corpus Books (The World Publ. Co.), 1972.
Abortion and the Constitution: Reversing Roe v. Wade Through the Courts. Dennis J. Horan, Edward R. Grant and Paige C. Cunningham (eds.), Washington, D.C.: Georgetown University Press, 1987.
A Private Choice, Abortion in America in the Seventies. John T. Noonan, Jr., New York: The Free Press, 1979.
Healing the Culture: A Commonsense Philosophy of Happiness, Freedom and the Life Issues. Robert Spitzer, S.J. et al. San Francisco: Ignatius Press, 2000.
A Lawyer Looks at Abortion. Lynn D. Wardle and Mary Anne Q. Wood. Provo, Utah: Brigham Young University Press, 1982 (out-of-print available used on Amazon.com).
Rights Talk: The Impoverishment of Political Discourse. Mary Ann Glendon, New York: The Free Press, 1991.
Natural Rights and the Right to Choose. Hadley Arkes, Cambridge, United Kingdom: Cambridge University Press, 2002.
Roe v. Wade
A Texas case stands at the center of years of national debate about the issue of abortion. That case, Roe v. Wade, was decided by the United States Supreme Court on January 22, 1973. The ruling basically held that women have a right, under the Fourteenth Amendment of the United States Constitution, to decide whether to continue or to terminate a pregnancy. It overturned a Texas law making all abortions (except those performed to save the life of the woman) illegal, and by implication overturned antiabortion statutes in most other states. The roots of the case lie in Austin, Texas, during the late 1960s. A group of local volunteers were telling women about birth control and how to avoid pregnancy. Their action followed a 1965 Supreme Court case, Griswold v. Connecticut, which overturned state laws making criminal the use of contraception. However, some women who approached them were already pregnant and wanted to know where and how to get an abortion. The volunteers originally wanted to know whether they could legally provide that information, including information about illegal abortion providers in Texas and Mexico, or whether doing so would subject them to possible prosecution as accomplices to the crime of abortion. In March 1970 a suit was filed in Dallas in a three-judge federal district court on behalf of a pregnant woman known as Jane Roe (later identified as Norma McCorvey) and all other women "who were or might become pregnant and want to consider all options." The suit was against Henry Wade, the district attorney at Dallas, an official responsible for enforcing criminal laws, including antiabortion statutes. The suit asked that the Texas law be declared unconstitutional and that an injunction be issued telling Wade to stop prosecuting doctors who performed abortions. The three-judge court declared that the "freedom to choose in the matter of abortions has been accorded the status of a `fundamental' right in every case the court had examined, and that the burden is on the defendant to demonstrate to the satisfaction of the court that the infringement [by the Texas abortion laws] is necessary to support a compelling state interest." Although this burden was not met and the court declared the Texas law unconstitutional, the court still refused to issue an injunction against Wade. The following day Wade announced that he would continue to prosecute physicians who provided abortion services. Both sides appealed, and eventually the Supreme Court agreed to hear the case.
The Supreme Court's 1973 decision held that there was a constitutional right of privacy. Seven justices joined the majority opinion written by Justice Harry Blackmun two justices dissented. The opinion written by Justice Blackmun said in part:
The constitution does not explicitly mention any right of privacy. In a line of decisions, however. the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty". are included in this guarantee of personal privacy.
They also make it clear that the right has some extension to activities relating to marriage. procreation. contraception. family relationships. and child rearing and education.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent.
Justices William Rehnquist and Byron White, the two dissenting justices, asserted that there was no right of personal privacy such as that recognized by the majority. The dissent said in part:
The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Even today, as society's views on abortion are changing, the very existence of the debate is evidence that the right to an abortion is not so universally accepted as the appellant would have us believe.
Although the majority decision declared the Texas law to be unconstitutional, it indicated in dictum, or advisory language, that states could pass some restrictions based on a "trimester" approach to pregnancy. Referring to a trimester as about one-third of a pregnancy, the court wrote that in the first trimester the only adequate state interest was in ensuring that only licensed medical personnel perform abortions. In the second trimester, because of the increased danger to the woman posed by abortion, the court suggested that the state's interest would support regulation to protect her health. Regarding the third trimester, the court referred to the increased danger to the woman and the increased potential for life of the fetus, and said that a state could then prohibit abortion except for very limited reasons, such as to save the woman's life.
Instead of ending the legal and public debate about abortion, however, the Roe decision became the focal point for increased turmoil. Opponents of abortion and its legality increased in numbers and organized strength. It became an issue in many political campaigns. The balance of votes on the Supreme Court began to shift as first President Ronald Reagan and then President George Bush, each of whom was elected on an antiabortion platform, had an opportunity to appoint members of that court. In the decade of the 1980s, five cases that in essence asked the court to overturn the Roe decision were presented to the Supreme Court. The court consistently refused, but it became more friendly to state regulation of abortion. A 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, was the culmination of a series of cases involving state laws restricting or regulating access to abortion. In the Casey decision, the court upheld several provisions of the Pennsylvania Abortion Control Act of 1982, including requirements that informed consent by a woman seeking an abortion be given prior to the abortion procedure that physicians observe a twenty-four-hour waiting period before performing an abortion that specified information be given to the woman twenty-four hours before the procedure and that minors obtain consent of one parent or permission from a judge (a judicial bypass) before having an abortion.
In the Roe decision, the court placed the burden of proof on the state to show that it had a compelling reason to regulate abortion. By the 1990s the court had shifted the burden of proof to plaintiffs who challenged state restrictions, requiring each to demonstrate that such restrictions were an "undue burden" on women. Given that burden of proof, far fewer plaintiffs now win suits against state abortion restrictions. By the 1992 presidential campaign, four of the nine Supreme Court justices indicated a willingness to overturn Roe, and five supported the Roe decision. Justice Blackmun, who wrote the 1973 majority opinion, had written, "I cannot last forever," a phrase read to signal his intent to retire. Many observers believed that if President George Bush had been reelected, he would have had an opportunity to add a fifth vote against Roe to the court, making it likely that the case would be overturned when a appropriate case reached the court. Candidate William J. Clinton said he was in favor of Roe. Observers assumed that he would appoint prochoice justices if he had an opportunity to do so. By 1995, after Clinton became president and made two Supreme Court appointments, the vote count on the court was thought to be three justices in favor of overturning Roe and also state restrictions, three justices unwilling to overturn it but willing to weaken it and approve state restrictions, and three favoring the original doctrine. The future of the case depends in part on retirements from and new appointments to the Supreme Court.
Texas, unlike a variety of other states that have passed laws regulating or restricting abortion since 1973, has passed few laws in that regard. Only physicians may legally perform abortions in Texas, and there is some Texas Department of Health oversight of clinics. Third-trimester abortions are illegal unless an abortion is necessary to save the life of the woman or because medical testing has revealed severe or irreversible abnormalities of the fetus. In-state battles between those who support and those who oppose the legality of abortion remain centered around the Texas legislature and continue to be fierce. In the 1995 legislative session, about twenty to twenty-five bills involving abortion surfaced, many related to tightening regulation of abortion clinics, giving legal status to fetuses, parental notification for minors seeking abortion, and other measures. The House of Representatives passed many such bills, but the Senate refused to do so. A Texas case has been at the epicenter of the abortion issue for twenty-three years, and it is clear that the debate will continue for years in public discussions, in politics, and in court cases. See also BIRTH CONTROL MOVEMENT IN TEXAS and WOMEN AND HEALTH.
Supreme Court to Review Mississippi Law Limiting Abortion Rights
WASHINGTON—The Supreme Court said it would consider the legality of a Mississippi abortion law that sought to ban the procedure after 15 weeks of pregnancy, a case that gives the justices an opportunity to revisit precedents protecting abortion rights.
The court’s one-sentence order on Monday, coming after eight months of deliberation, crystallized hopes and fears of partisans who have battled for decades over the abortion issue and the direction of the high court. Republicans have long sought to build a Supreme Court with enough conservative justices to narrow, if not abandon, precedents dating back to the landmark 1973 decision in Roe v. Wade that established a woman’s constitutional right to choose abortion before fetal viability. Democrats have made the preservation of abortion rights a central plank of their opposition to dozens of Republican nominees to the federal judiciary, warning that Roe and its progeny were under threat.
“The fact that the justices decided to take the case indicates a willingness of at least five of them to revisit existing precedent,” said University of Chicago law professor Geoffrey Stone, who has written extensively about the history of the Supreme Court’s abortion rulings. “The only reason to hear the case would be to do that.”
The court will consider the case during its next term, which begins in October.
If Mississippi wins, the Supreme Court would be allowing states more room to regulate abortion than at any time since Roe. The court wouldn’t have to explicitly overturn Roe and other precedents, but any ruling for the state would put significant limits on abortion rights, Mr. Stone said.
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This day in history, January 22: The U.S. Supreme Court, in its Roe v. Wade decision, declares a nationwide constitutional right to abortion
Today is Friday, Jan. 22, the 22nd day of 2021. There are 343 days left in the year.
Today’s Highlight in History:
On Jan. 22, 1973, the U.S. Supreme Court, in its Roe v. Wade decision, declared a nationwide constitutional right to abortion. Former President Lyndon B. Johnson died at his Texas ranch at age 64.
In 1901, Britain’s Queen Victoria died at age 81 after a reign of 63 years she was succeeded by her eldest son, Edward VII.
In 1907, the Richard Strauss opera “Salome” made its American debut at the Metropolitan Opera in New York its racy content sparked outrage and forced cancellation of additional performances.
In 1944, during World War II, Allied forces began landing at Anzio, Italy.
In 1970, the first regularly scheduled commercial flight of the Boeing 747 began in New York and ended in London some 6 1/2 hours later.
In 1973, George Foreman upset reigning heavyweight champion Joe Frazier with a second round TKO in their match in Kingston, Jamaica.
In 1987, Pennsylvania treasurer R. Budd Dwyer, convicted of defrauding the state, proclaimed his innocence at a news conference before pulling out a gun, placing the barrel in his mouth and shooting himself to death in front of horrified onlookers.
In 1995, Rose Fitzgerald Kennedy died at the Kennedy compound at Hyannis Port, Mass., at age 104.
In 1997, the Senate confirmed Madeleine Albright as the nation’s first female secretary of state.
In 1998, Theodore Kaczynski (kah-ZIHN’-skee) pleaded guilty in Sacramento, California, to being the Unabomber responsible for three deaths and 29 injuries in return for a sentence of life in prison without parole.
In 2006, Kobe Bryant scored 81 points, the second-highest in NBA history, in the Los Angeles Lakers’ 122-104 victory over the Toronto Raptors.
In 2007, a double car bombing of a predominantly Shiite commercial area in Baghdad killed 88 people. Iran announced it had barred 38 nuclear inspectors on a United Nations list from entering the country in apparent retaliation for U.N. sanctions imposed the previous month.
In 2009, President Barack Obama signed an executive order to close the Guantanamo Bay prison camp within a year. (The facility remained in operation as lawmakers blocked efforts to transfer terror suspects to the United States President Donald Trump later issued an order to keep the jail open and allow the Pentagon to bring new prisoners there.)
Ten years ago: Drawing inspiration from a revolt in Tunisia, thousands of Yemenis demanded the ouster of President Ali Abdullah Saleh (AH’-lee ahb-DUH’-luh sah-LEH’) in a noisy demonstration that appeared to be the first large-scale public challenge to the strongman. (He stepped down as president in 2012.)
Five years ago: North Korea said it had detained Otto Warmbier, a university student from Ohio, for what the authoritarian nation called a “hostile act.” (Warmbier was later sentenced to 15 years in prison with hard labor he’d said he had tried to steal a propaganda banner as a trophy for an acquaintance. Warmbier died in 2017, shortly after he returned to the U.S. in a coma and showing apparent signs of torture while in custody.) California Gov. Jerry Brown rejected parole for a third time for Bruce Davis, a follower of cult leader Charles Manson.
One year ago: Chinese health authorities urged people in the city of Wuhan to avoid crowds and public gatherings after warning that a new viral illness that had infected hundreds of people and caused at least nine deaths could spread further. Health officials in Washington state said they were actively monitoring 16 people who’d come in close contact with a traveler to China, the first U.S. resident known to be infected with the virus. In opening arguments at President Donald Trump’s impeachment trial, House Democrats appealed to skeptical Republican senators to oust Trump from office to “protect our democracy.” In an NBA debut that had been delayed three months by knee surgery, Zion Williamson, the league’s top draft pick, scored 22 points for the New Orleans Pelicans, but the Pelicans lost 121-117 to the San Antonio Spurs.
Today’s birthdays: Actor Piper Laurie is 89. Celebrity chef Graham Kerr (TV: “The Galloping Gourmet”) is 87. Author Joseph Wambaugh is 84. Singer Steve Perry is 72. Country singer-musician Teddy Gentry (Alabama) is 69. Movie director Jim Jarmusch is 68. Actor John Wesley Shipp is 66. Hockey Hall of Famer Mike Bossy is 64. Actor Linda Blair is 62. Actor Diane Lane is 56. Actor and rap DJ Jazzy Jeff is 56. Celebrity chef Guy Fieri is 53. Actor Olivia d’Abo is 52. Actor Katie Finneran is 50. Actor Gabriel Macht is 49. Actor Balthazar Getty is 46. Actor Christopher Kennedy Masterson is 41. Jazz singer Lizz Wright is 41. Pop singer Willa Ford is 40. Actor Beverley Mitchell is 40. Rock singer-musician Ben Moody is 40. Actor Kevin Sheridan is 39. Actor-singer Phoebe Strole is 38. Rapper Logic is 31. Tennis player Alizé Cornet (uh-LEEZ’ kohr-NAY’) is 31. Actor Sami Gayle is 25.
Supreme Court Agrees to Hear One of the Biggest Abortion Cases Since Roe v. Wade
This week, the U.S. Supreme Court gave the pro-life movement a reason to hope.
The court announced on Monday that it would hear a case involving a Mississippi law to decide whether states can pass laws that protect life from abortion before an unborn baby is viable (when he or she can survive outside the womb)—which is currently considered to be around 22-23 weeks gestation.
Today the Supreme Court agreed to hear a major abortion case. Every human life is valuable. And the majority of Americans support commonsense laws like Mississippi’s, which protects unborn children and their mothers. We’re hopeful the Supreme Court will agree.— Kristen Waggoner (@KWaggonerADF) May 17, 2021
Praise God! This is great news. And it speaks to the strides that the pro-life movement has made since the Supreme Court’s Roe v. Wade decision, which legalized abortion across the country.
Since 1973, when Roe was decided, more than 60 million unborn children have lost their lives to abortion. And countless mothers have suffered through the physical and psychological toll that abortion takes on them. Some have even lost their lives to abortion.
Though abortion activists would have you believe that Mississippi’s policy is extreme, that’s not even close to true…U.S. law is.
In fact, 90 percent of countries worldwide have laws limiting abortion at 15 weeks or earlier like Mississippi’s. We are one of only four nations that permits abortion-on-demand throughout all nine months of pregnancy, along with China and North Korea.
That’s quite the short list. And it’s certainly not something to be proud of.
The reality is that most Americans support commonsense laws like Mississippi’s, which protects unborn children and their mothers.
Mississippi’s Law Protects Unborn Children
At 15 weeks, unborn babies have a heartbeat, can move around and kick, sense movement outside the womb, taste what mom eats, open and close their fingers, and hiccup. They can also likely sense pain—which is undoubtedly what an abortion inflicts when it requires the unborn baby to be crushed and torn apart. That has no place in a civilized society.
Mississippi’s Law Advances Women’s Physical and Emotional Health and Well-Being
The Mississippi law recognizes that women deserve real health care, not dangerous procedures that are unnecessary and devastating. This law ensures women are not put at the greater risk of death, illness, or psychological trauma that later-term abortions cause. For example, in abortions performed after 15 weeks, women face a higher risk of needing a hysterectomy, other reparative surgery, or a blood transfusion. The risk of a woman dying due to an abortion also increases exponentially as her pregnancy progresses.
Every human life is valuable and deserves to be protected. Most Mississippians agree. Most Americans agree. Most countries around the world agree.
In 1995, McCorvey was working at a clinic in Dallas when Operation Rescue moved in next door. She allegedly struck up a friendship over cigarettes with Operation Rescue preacher Philip "Flip" Benham. McCorvey said that Benham talked to her regularly and was kind to her. She became friends with him, attended church, and was baptized. She surprised the world by appearing on national television to say that she now believed abortion was wrong.
McCorvey had been in a lesbian relationship for years, but she eventually denounced lesbianism as well after her conversion to Christianity. Within a few years of her first book, McCorvey wrote a second book, "Won by Love: Norma McCorvey, Jane Roe of Roe v. Wade, Speaks Out for the Unborn as She Shares Her New Conviction for Life."
Supreme Court to Hear Mississippi Abortion Case Challenging Roe v. Wade
The U.S. Supreme Court has agreed to hear a groundbreaking abortion rights case, energizing activists on both sides of the debate to make abortion a major topic of discussion in the 2022 midterm elections.
States where this issue could be a key factor in the 2022 Senate races include Pennsylvania, North Carolina, Georgia and Florida, AP News reports.
This marks the second time in weeks that the majority conservative Court has signaled a willingness to reconsider a historic law this time, Roe v. Wade just weeks ago, guns.
The court announced Monday it would review whether all state laws that ban abortions are unconstitutional. In the 1973 Roe v. Wade decision, the Court stated that a woman has the right to end a pregnancy within the first six months if the fetus would be to be unable to survive once born.
If the Court upholds a Mississippi law banning abortion after 15 weeks of pregnancy, it would mark the first step towards a possible end to Roe v. Wade.
Indeed, since 1973, abortion has become one of the most contested subjects within the political spectrum. Both sides – pro-life and pro-choice – are readier than ever to head to battle.
As reported by NPR , the test case is from Mississippi. A panel of the 5th U.S. Circuit Court of Appeals blocked enforcement of the law – which bans abortions after 15 weeks, as aforementioned. The court found it in conflict with Roe v. Wade.
The Mississippi appeal has been sitting on the court’s agenda since last fall, just before Amy Coney Barrett’s confirmation.
Mississippi is just one of many states that have passed laws banning abortion over the last year.
Bans on pre-viability, abortion bans have been struck down, until now, in a dozen states since 2019, including Alabama, Arkansas, Georgia, Kentucky, Louisiana, Montana, Missouri, Ohio, Oklahoma, South Carolina, Utah and Tennessee.
But, the court now has a 6-3 conservative majority, and all six justices have taken positions against abortions at one time or another. Perhaps the most vocal against abortions is Amy Coney Barrett.
Roe vs. Wade: Abortion's Religious Dimension
When the U. S. Supreme Court handed down the Roe v. Wade decision, on this day, January 22, 1973 , they hoped to end increasing controversy over a practice which was allowed in limited instances in some states but almost never in others. Instead, their decision polarized the American people and American politics. In its ruling, the court struck down a Texas law which prohibited abortion except when necessary to save a mother's life.
As is usual when a ruling defies custom and popular conscience, the decision could only be achieved through deception. The woman known as Jane Roe (Norma McCorvey, now a Christian and a pro-life advocate) has acknowledged that she perjured herself in her testimony. She also says she was lied to by her counsel. Supreme Court memos show that pro-abortion Supreme Court justices (especially William O. Douglas), knowing they had no precedent, plotted to "finesse" the issue." The ruling flew in face of scientific evidence which increasingly shows that a baby in the womb is very human. With modern technology, premature infants have survived at younger and younger ages.
What the court did in its divided opinion was to develop a new judicial theory--that a woman has a constitutionally protected right to privacy. The U.S. Constitution does not mention any such right, but the Court read it into the l4th Amendment which prohibits a state from unreasonably interfering with life, liberty, and property. The court expanded the meaning of the word "liberty" to guarantee a woman's right to privacy in choosing an abortion.
Although the court said that the liberty guaranteed by the fourteenth amendment protects the woman's right to privacy, at the same time the court held that it did not protect the unborn, since the court arbitrarily determined that a fetus is not a person and thus not a concern of the court. Roe v. Wade further permitted abortion to prevent the mother from future mental or physical distress in caring for the child. Thus the Court placed the personal choices of the mother above the life of her unborn.
Numerous jurists--even those who favor abortion--have observed that Roe v. Wade ignored constitutional precedent. In fact, the decision overturned laws regulating abortions in every one of the fifty states.
Many Christians protest the Court's ruling as immoral. They see the decision as an expression of an individualistic and secular society in which people try to live their lives independent of God's laws, principles, and truths. They teach that our bodies are not our own, but on loan to us from God and humans are made in the image of God and therefore to be valued. Roe v. Wade has become a central issue in the conflict over which principles should govern American society.