ROE V WADE

As the sexual revolution became strong in the second half of the twentieth
century, women faced great difficulty getting abortions. At the time, many
states had outlawed abortion except in cases where the mother’s life was in
danger. Illegal abortions were often dangerous because they were performed
in unsanitary conditions. As people’s ideas about sexual freedom changed,
women gained greater access to birth control measures, but public pressure
to change abortion laws also increased. A number of states relaxed their
abortion laws so that women living in states that outlawed abortion could
travel to another state for an abortion.

However, poor women often could not afford to travel outside their state to
receive treatment, raising questions of equality. Laws were often vague, so
that doctors did not know whether they were breaking the law by providing
an abortion. In addition, some people began to question whether the
government should be able to interfere with people’s decisions in sexual
matters. They believed that laws banning birth control and abortion were an
invasion of privacy.

There is no right to privacy specifically guaranteed in the Constitution.

However, the Supreme Court has long admitted some right to privacy, but
usually associated that right with a particular location, like a person’s home.
However, during the 1960s, the Court’s position on privacy changed so that
it was connected with a person, not a location.

Jane Roe, (not her real name), was an unmarried and pregnant Texas
resident in 1970. She wanted to have an abortion, but Texas abortion law
made it a felony to abort a foetus unless “on medical advice for the purpose
of saving the life of the mother.” Roe filed suit against Wade, the district
attorney of Dallas County, Texas to challenge the law outlawing abortion

Roe said that the law violated the Fourteenth Amendment, which provides
equal protection of the laws and a guarantee of personal liberty, and a
woman’s right to privacy implicitly guaranteed in the First, Fourth, Fifth,
Ninth, and Fourteenth Amendments.
The state argued that “the right to life of the unborn child is superior to the
right to privacy of the mother.” The state also argued that in previous
decisions where the Court protected individual or marital privacy, that right
was not absolute. The state argued that this is a policy matter best left to the
legislature to decide. A three-judge federal district court ruled the Texas
abortion law unconstitutional, and the case was then appealed directly to the
U.S. Supreme Court.

Majority Opinion

MR. JUSTICE BLACKMUN delivered the opinion of the Court. Chief

Justice Burger and Justices Douglas, Brennan, Stewart, Marshall and Powell
joined the opinion.

…We ..acknowledge our awareness of the sensitive and emotional nature of

the abortion controversy, of the vigorous opposing views, even among
physicians, and of the deep and seemingly absolute convictions that the
subject inspires. Ones philosophy, ones experiences, ones exposure to the
raw edges of human existence, ones religious training, ones attitudes toward
life and family and their values, and the moral standards one establishes and
seeks to observe, are all likely to influence and to colour ones thinking and
conclusions about abortion.

…The principal thrust of appellant's attack on the Texas statutes is that they
improperly invade a right, said to be possessed by the pregnant woman, to
choose to terminate her pregnancy. Appellant would discover this right in
the concept of personal "liberty" embodied in the Fourteenth Amendment's
Due Process Clause; or in personal, marital, familial, and sexual privacy said
to be protected by the Bill of Rights

…The Constitution does not explicitly mention any right of privacy. …[T]he
Court has recognized that a right of personal privacy, or a guarantee of
certain areas or zones of privacy, does exist under the Constitution. … 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 Bill of Rights, however, reflects the concern of James Madison and
other framers for protecting specific aspects of privacy, such as the privacy
of beliefs (1st Amendment), privacy of the home against demands that it be
used to house soldiers (3rd Amendment), privacy of the person and
possessions as against unreasonable searches (4th Amendment), and the 5th
Amendment's privilege against self-incrimination, which provides
protection for the privacy of personal information. In addition, the Ninth
Amendment states that "…certain rights" in the Bill of Rights "shall not be
construed to …deny or disparage other rights retained by the people." The
meaning of the Ninth Amendment is elusive, but some have interpreted the
Ninth Amendment as justification for broadly reading the Bill of Rights to
protect privacy in ways not specifically provided in the first eight
amendments.

DISSENTING OPINION

Mr. Justice Rehnquist, dissenting.

The Court's opinion brings to the decision of this troubling question both
extensive historical fact and a wealth of legal scholarship. While the opinion
thus commands my respect, I find myself nonetheless in fundamental
disagreement and therefore dissent.

The Court's opinion decides that a State may impose virtually no restriction
on the performance of abortions during the first trimester of pregnancy. I
have difficulty in concluding, as the Court does, that the right of "privacy" is
involved in this case. The Texas statute… forbids the performance of a
medical abortion by a licensed physician. This procedure is not "private" in
the ordinary usage of that word. Nor is the "privacy" that the Court finds
here similar to the freedom from searches and seizures protected by the
Fourth Amendment to the Constitution, which the Court has referred to as
embodying a right to privacy.

…But the Court's(broad) invalidation of any restrictions on abortion during

the first trimester is impossible to justify. This is far more appropriate to a
legislative judgment than to a judicial one.

…To reach its result, the Court necessarily has had to find within the scope
of the Fourteenth Amendment a right that was apparently completely
unknown to the drafters of the Amendment. ….

Opposing Roe v Wade

The Supreme Court's Roe decision cheapened human life. The
unborn child, which is no less human than its mother, has an
inalienable right to life. The sanctity of human life is a moral claim
that cannot be violated or superseded by other claims. For this
reason, abortion cannot be condoned as an individual decision or
as a matter of public policy. Abortion must be prohibited or at least
sharply restricted.

Supporting Roe v Wade

The principles on which the Roe v. Wade decision was based -- an

individual's freedom of choice, as well as freedom from
government intrusion into personal matters -- need to be
reaffirmed. The foetus is not yet a person and its rights do not
outweigh the mother's right to choose. Decisions about such a
personal matter as whether to continue a pregnancy must be left to
the individual who is most directly involved, the pregnant woman.

Neutral/ Compromise Laws regarding abortion must reflect a

concern for two different values. Because we value the human
potential of the unborn, we must try to minimize the number of
abortions performed. At the same time, public measures must be
taken to prevent the tragic dilemma posed by unwanted
pregnancy.. For this reason, and because outlawing abortion would
be impracticable, thus undermining respect for the law, abortion
should be permitted early in pregnancy. After that, it should be
sharply restricted.
AFTER ROE
The 1973 Roe decision did not end the debate over abortion. In
many ways, the decision actually intensified the debate, making it
a national issue rather than a state issue. Abortion is an extremely
controversial issue that involves people’s strongly held beliefs
about religion, morality, life, the role of the government, and the
right to bodily integrity and privacy. Each year, on the anniversary
of the decision (January 22, 1973), pro-life and pro-choice
supporters stage protest rallies in front of the Supreme Court.

Abortion has become an important issue in elections and in judicial

nominations. Depending on who is president and which party
controls Congress, abortion counselling at federally funded clinics
has sometimes been permitted and sometimes been prohibited. In
congressional districts and U.S. Senate elections where the public
is closely divided on this issue, candidates are often reluctant to
take a strong stand either for or against abortion rights for fear of
alienating an important segment of voters. And as long as the
public believes that the U.S. Supreme Court is closely divided over
abortion issues, advocacy groups on both sides will closely
monitor presidential nominations to the Supreme Court and even to
lower federal courts.

In addition to political arenas, confrontations over abortions take

place on a regular basis in many communities outside of clinics
that offer abortion services. Those who are against abortion often
stage protests outside of clinics and those who support abortion
rights volunteer to escort patients who might otherwise be
discouraged from entering the clinics as a result of protests. Some
extreme opponents of abortion feel so strongly that abortion is
wrong that they advocate the killing of doctors who perform
abortions. On the other side, some advocates of abortion rights
argue that abortion opponents who threaten women or their doctors
should be treated like terrorists because they advocate violence and
attempt to intimidate people from exercising their constitutional
rights.

QUESTIONS
1. Why do you believe that abortion is such a controversial issue ?
2. More than 30 years after Roe, some argue that this case should not have
been decided by the Court and that the decision belongs in state legislatures.
List the strengths and weaknesses of this state-by-state legislative approach?
3. No case in recent constitutional history has stirred deeper emotions than
Roe v. Wade. Organizations have been founded with the primary purpose of
either protecting the judicially created right to an abortion or seeking to have
this right overturned. When people feel strongly on both sides of such an
important issue, can a compromise be reached? Are there are ways to lessen
the hostilities between the two sides?

Classifying Arguments

The following is a list of arguments in the Roe v. Wade court case. Read
through each argument and decide whether it supports Roe’s side (R),
against the Texas law restricting abortion; Wade’s side (W), in favour of the
Texas law restricting abortion; both sides (BOTH); or neither side (N).

The Fourteenth Amendment says "No State shall…deny to any person within
its jurisdiction the equal protection of the laws." Having different abortion
laws in various states keeps poor women in states with restrictive laws from
having access to abortions, while wealthier women can travel elsewhere to
have a legal and safe abortion.
The Fourteenth Amendment says "No State shall…deny to any person within
its jurisdiction the equal protection of the laws." If a foetus is a person from
conception, then the Fourteenth Amendment guarantees equal protection of
the laws. The life of the foetus must be considered as having equal weight
with the life of the mother. Thus the state has a compelling interest in
protecting the life of the foetus.

The Fourteenth Amendment says "No State shall…deprive any person of

life, liberty, or property, without due process of law…." This clause has been
interpreted in some cases to guarantee substantive due process. This means
that the government cannot infringe on liberty without proving a compelling
interest and any law that infringes on liberty has to be very narrowly
crafted. Any law that infringes on a protected liberty interest, in this
interpretation of the Fourteenth Amendment, is presumed to be
unconstitutional and the State has to jump a high hurdle to prove otherwise.

The Texas abortion law declaring that a woman cannot have an abortion
unless her life is in danger is too vague. Doctors may not know precisely
when they are breaking the law when performing an abortion.

The First, Fourth, and Fifth Amendments apply to the States. Though these
Amendments do not mention the right of privacy, privacy is fundamental to
the exercise of the rights that are explicitly mentioned. As such, privacy is
protected by the penumbras of the First, Fourth, and Fifth Amendments:
The First Amendment says "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances."
The Fourth Amendment says "The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated…."
The Fifth Amendment says "No person shall…be compelled in any criminal
case to be a witness against himself…."
The Ninth Amendment says "The enumeration in the Constitution of certain
rights, shall not be construed to deny or disparage others retained by the
people." The Framers did not want the Bill of Rights to be an all-inclusive
list of the rights that people in the United States have. The Ninth
Amendment says that people retain other rights that are not explicitly listed
in the Constitution. Among these rights may be the right to privacy, which
would include freedom of choice in the basic decisions of one’s life.

It has long been an acknowledged role of the state to safeguard health and
regulate medical practices.

The U.S. Constitution does not explicitly mention any right of privacy.
For the U.S. Supreme Court to determine when, where, and how an abortion
should occur would be to overstep its authority as a court. It is the job of
state legislatures to determine how abortions should be regulated, not federal
courts.

The use of the word “person” in the U.S. Constitution as it was drafted does
not include a foetus. Thus, the Fourteenth Amendment cannot be construed
to protect the unborn.

As a pregnancy progresses, the interest of the state in protecting the health of

the mother and the life of the foetus becomes more “compelling.”