六. Roe v. Wade
Supreme Court of the United States
Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973
Full case name Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County
Citations 410 U.S. 113 (more)
93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
Prior history Judgment for plaintiffs, injunction denied, 314 F. Supp. 1217 (N.D. Tex. 1970); probable jurisdiction noted, 402 U.S. 941 (1971); set for reargument, 408 U.S. 919 (1972)
Roe v. Wade, 410 U.S. 113 (1973),[1] was a landmark decision by the United States Supreme Court on the issue of abortion. The Court held that the constitutional right to privacy extends to a woman's decision to have an abortion, but that right must be balanced against the state's two legitimate interests for regulating abortions: protecting prenatal life and protecting the mother's health. Noting that these state interests become stronger over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the mother's current trimester of pregnancy:
In the first trimester, the state's two interests in regulating abortions are at their weakest, and so the state cannot restrict a woman's right to an abortion in any way.
In the second trimester, there is an increase in the risks that an abortion poses to maternal health, and so the state may regulate the abortion procedure only "in ways that are reasonably related to maternal health" (defined in the companion case of Doe v. Bolton).
In the third trimester, there is an increase in viability rates and a corresponding greater state interest in prenatal life, and so the state can choose to restrict or proscribe abortion as it sees fit ("except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother").
In disallowing many state and federal restrictions on abortion in the United States,[2] Roe v. Wade prompted a national debate that continues today, about issues including whether and to what extent abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role should be of religious and moral views in the political sphere. Roe v. Wade reshaped national politics, dividing much of the nation into pro-choice and pro-life camps, while activating grassroots movements on both sides. (1)
Section V is a single paragraph introducing the discussion of the merits, led by the following:
“ 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 or its penumbras ... or among those rights reserved to the people by the Ninth Amendment ... ”
Section VI surveys the history of abortion regulations, in eight subparts:
Ancient attitudes (including those of the Persian Empire, Greek times, the Roman era).
The Hippocratic oath.
The common law.
The English statutory law.
The American law.
The p-osition of the American Medical Association.
The p-osition of the American Public Health Association.
The p-osition of the American Bar Association.
According to the Roe Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." Before 1821, when Connecticut passed the first state statute criminalizing abortion, abortion in the United States was sometimes considered a common law crime.[13] Every state had abortion legislation by 1900.[14] However, the court concluded that it could not find a sufficient historical basis to justify the Texas statute.
In Section VII, the Court describes the interests that could be cited to justify criminalizing abortion:
an interest in discouraging women from engaging in "illicit sexual conduct", which interest would be undermined by making abortion widely available;
an interest in reducing access to a risky medical procedure —which abortion could still be in the late stages of pregnancy, despite modern medical techniques such as antibiotics; and
an interest in protecting prenatal life.
Blackmun rejected the first interest out-of-hand, writing that "no court or commentator has taken the argument seriously" and that in any event it could not be cited in support of this statute, which failed to "distinguish between married and unwed mothers".(5)
Other pro-life supporters argue that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm.[19] Every year on the anniversary of the decision, pro-life supporters march up Constitution Avenue to the Supreme Court Building in Washington, D.C. in the March for Life.[20][21][22]
Protestors at the 2009 March for Life rally against Roe v. WadeAdvocates of Roe describe it as vital to preservation of women's rights, personal freedom, and privacy. Denying the abortion right has been equated to compulsory motherhood, and some scholars (not including any member of the Supreme Court) have argued that abortion bans therefore violate the Thirteenth Amendment:
“ When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the Thirteenth Amendment….[E]ven if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant.[23] ”
Opponents of Roe have objected that the decision lacks a valid constitutional foundation. Like the dissenters in Roe, they have maintained that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the democratic process, rather than through an all-encompassing ruling from the Supreme Court.
Supporters of Roe contend that the decision has a valid constitutional foundation, or contend that justification for the result in Roe could be found in the Constitution but not in the articles referenced in the decision.[23][24]
At a rally for Roe v. Wade, on the anniversary of the decision. Albert Wynn and Planned Parenthood president Gloria Feldt, in front of the Supreme Court stepsIn response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent for minors to obtain abortions, parental notification laws, spousal mutual consent laws, spousal notification laws, laws requiring abortions to be performed in hospitals but not clinics, laws barring state funding for abortions, laws banning intact dilation and extraction (also known as partial-birth abortion), laws requiring waiting periods before abortion, or laws mandating women read certain types of literature and watch a fetal ultrasound before undergoing an abortion.[25] Congress in 1976 passed the Hyde Amendment, barring federal funding of abortions (except in the case of rape, incest, or life of the mother) for poor women through the Medicaid program. The Supreme Court struck down several state restrictions on abortions in a long series of cases stretching from the mid-1970s to the late 1980s, but upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).[26] (9)
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