History of Abortion Laws in the US
Info: 7832 words (31 pages) Dissertation
Published: 15th Feb 2022
Tagged: Human RightsLawHuman Rights Law
The Roe v. Wade Case
In the Roe v. Wade case of 1973, the U.S. Supreme Court decided 7-2, that a woman’s constitutional right to privacy extends to a woman’s right to make her own medical decisions and make her own personal decision whether to terminate her pregnancy by means of an abortion, without interference from the state. (https://www.plannedparenthoodaction.org/issues/abortion/roe-v-wade). This landmark decision changed the debate over reproductive rights in the U.S. forever. While it began a new era of reproductive rights for women, it created a political rift between pro-life and pro-choice supporters. The debate includes health considerations, ethics, religion, and politics. In 2017, the debate still rages on. (Kelkar & Segal, 2017)
Abortion before Roe v. Wade
Anti-abortion laws have been enforced in every state since at least 1900 (Abortion in the United States, 2017). For the most part, however, these anti-abortion laws were scarcely enforced until the late 1930s, so before that time, pregnant women with money had no trouble getting an abortion if they wanted (This Day in History, 1973 ). According to Kelkar and Segal (2017), abortion was legal in only six states: Alaska, California, Hawaii, New York, Oregon and Washington. Dr. Daniel Mishell, Jr. said that prior to the Roe v. Wade case, pregnant women used many terrible and dangerous methods to terminate the pregnancies. These included knitting needles, coat hangers, and bicycle pump nozzles “sometimes sending a fatal burst of air to the heart”. The list also included chemicals like drain cleaner, fertilizer, and radiator-flush. Dr. Mishell also said that many healthy young women died from these illegal abortion methods. (Grimes, 2015).
Other activities excited the public surrounding reproductive and abortion rights. In 1964, a photograph of the dead body of Gerri Santoro, who died in the attempt of getting an illegal abortion in Connecticut, became an icon of the pro-choice movement (Gerri Santoro, 2017).
In 1965, there was a major case, Griswold vs Connecticut, that would later have bearing on Roe vs Wade. In a 7–2 decision, the Supreme Court ruled that the state’s ban on the use of contraceptives violated marital privacy rights. Estelle Griswold and Dr. C. Lee Buxton opened a birth counseling clinic in Connecticut. They were arrested for providing illegal contraception and advice on birth control. Connecticut had an 1879 law that stated, “any person who uses any drug, medicinal article or instrument for the purposes of preventing contraception shall be fined not less than $40 or imprisoned not less than 60 days.” The law also stated that, “Any person who assists, abets, councils, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.” Griswold and Buxton were found guilty. They appealed their case in Connecticut, claiming that the law violated the U.S. Constitution. That Connecticut court upheld their conviction, so Griswold and Buxton appealed to the U.S. Supreme Court which looked at the case in 1965. (McBride, 2006, Griswold v. Connecticut).The United States Supreme Court ruled that Connecticut’s birth control law was unconstitutional. They based this on the Fourth and Fifth Amendments protecting a person’s right to privacy, and protecting a person’s life from interference by the government (Griswold v. State of Connecticut, n.d.).
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fifth Amendment says in part, “No person shall… be deprived of life, liberty, or property, without due process of law.” The Court found that citizens should have the freedom to use birth control within the bonds of marriage. They also based their ruling on the Ninth Amendment, which had been rarely used (Griswold v. State of Connecticut, n.d.). The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Justice Arthur Goldberg argued that there were other rights, like the right to privacy, that the people retain, even though they are not specifically mentioned in the first eight amendments. This ruling on privacy rights would play a key part in Roe v. Wade (Griswold v. State of Connecticut, n.d.).
Also, Women’s rights activist groups popped up nationwide. One such group was the Jane Collective (also known as simply “Jane”) based in Chicago, Illinois. At first, they simply referred women to safe, although illegal, abortion clinics. Women were told to call a certain phone number and ask for “Jane”. Later, some of the group started performing abortions themselves privately. Pregnant women went to these types of organizations because they had nowhere else to go (Greenhouse & Siegel, 2012).
In the 1960s, public opinions about reproductive rights began to change. By 1969, polls showed that 40% of the public was in favor of allowing abortions in the first trimester. In 1969, Dr. Hugh Savage made a presentation to the Texas Medical Association. According to Blackstone (n.d.), Dr. Savage proposed that Texas change its reproductive laws to allow abortions for “mental or physical health reasons, fetal deformity, or in cases involving rape or incest, in addition to the already existing exception when the mother’s life was at risk” (Blackstone, n.d.).
The Beginning of Roe v. Wade
Sarah Weddington was a lawyer in Austin, Texas that was providing free legal counsel to a group of women graduate students, who were counseling other women on birth control. The group wanted to provide information to U.S. citizens about reputable abortion clinics in Mexico. They wanted Weddington to investigate to see if they might be prosecuted for doing this. The group also wondered if a federal lawsuit could strike down the Texas abortion laws. Weddington began research into this, and called her fellow law school graduate, Linda Coffee, for help. Coffee was already researching the issue. She already knew of a married couple, Marsha and David King, that would be willing to join in a potential lawsuit. Weddington and Coffee could not bring the case on their own, because they would have no standing. So, Weddington and Coffee began to look for a woman who was pregnant and wanted an abortion, to become their plaintiff. That’s when they found Norma McCorvey (Blackstone, n.d.).
In 1969, a single mother of two discovered that she was pregnant with her third child. She was a 21-year-old Texas resident named Norma L McCorvey. Originally, she decided to falsely claim that she had been raped, in order to obtain a legal abortion. She understood that abortion in Texas was allowed in cases of rape and incest. According to Wikipedia, because she had no documentation of the so-called rape, she could not get a legal abortion. So then she decided to get an illegal abortion, but the authorities had shut down the unauthorized clinic that she had intended to visit (Roe v. Wade, 2017).
This is not accurate according to Blackstone (n.d.). They say that when McCorvey met Weddington and Coffee in February 1970, at one point McCorvey thought that the meeting was not going well. This was after she had told the two attorneys that she was lesbian and had abused alcohol and drugs. So she lied and said that she was raped, and that’s how she became pregnant. Weddington told McCorvey that there was no exception for rape under Texas law (Blackstone, n.d.). Whichever story is accurate, it would not make a difference in the lawsuit, and they did not include rape information in the case.
Eventually, in 1970, Weddington and Coffee filed a lawsuit against the state of Texas, in the United States District Court for the Northern District of Texas, on behalf of McCorvey, who used the alias “Jane Roe”. Coffee added the case of Marsha and David King, who took on the legal aliases of “Mary and John Doe”. Weddington and Coffee wanted to strengthen their case by adding a doctor who had performed abortions. They found Dr. James Hallford, who “had been indicted for performing an abortion on a woman who had contracted Rubella”. Pregnant women with Rubella (German measles), were considered “at risk”, and therefore allowed to have an abortion in Texas. The consolidated case became known as Roe v. Wade (Blackstone, n.d).
Jane Roe’s lawsuit claimed that the statutes that criminalized most abortions in Texas violated her constitutional rights. The defendant was the state of Texas, represented by Dallas County District Attorney Henry Wade. Wade became famous for his prosecution in 1964 of Jack Ruby, the man who killed Lee Harvey Oswald (Blackstone, n.d ). The consolidated case of Roe v. Wade was assigned to the Fifth Circuit Federal District Court. It was heard by a three-judge panel (Blackstone, n.d ). Roe argued that the Texas law violated her constitutional rights, because since her life was not in danger, under the current law, she could not get an abortion in Texas. In addition, she could not afford to go out of state for an abortion. So, Roe argued that she should have the right to get an abortion in a safe medical environment in Texas. The court ruled that the abortion law was in violation of the Constitution. The court found that it violated the right to privacy and cited the case of Griswold V Connecticut (Roe v. Wade, 2017).
Wade appealed to the U.S. Supreme Court. And ironically, even though the Court ruled in her favor, Roe appealed to the Supreme Court, as well. Roe appealed because the Fifth Circuit Federal District Court refused to grant the injunction that would allow her to get her abortion (Roe v. Wade, 2005).
Roe v. Wade in the U.S. Supreme Court
Roe v. Wade reached the Supreme Court in 1970. The Supreme Court decided it would consolidate it with a similar Georgia case, Doe v. Bolton. The Court also delayed the case until they had decided two other cases, Younger v. Harris and United States v. Vuitch. In the Vuitch case, the Court considered the constitutionality of a Washington, D.C. statute that outlawed abortion except for situations in which a pregnant woman’s life or health was in danger. The Court upheld the statute, although it meant treating abortion as a medical procedure, and they stated that doctors should be able to decide what constitutes a danger to a patient’s mental or physical health (Roe v. Wade, 2017).
The day after the Vuitch decision, the Court voted to hear both the Roe and Doe cases. Arguments were scheduled to be heard by the full Court for December 13, 1971. Before that date for oral arguments, Justices Hugo Black and John Marshall Harlan retired (Roe v. Wade, 2017). So, the oral arguments were made in front of only seven Supreme Court Justices (Blackstone, n.d.). Weddington and Coffee continued to represent Roe, although Coffee took a secondary role to Weddington (Prager, 2017). For the defense, representing the State of Texas, Henry Wade was replaced by Jay Floyd (Blackstone, n.d.). After this first round of arguments, all seven Justices tentatively agreed in favor of Roe. Chief Justice Burger appointed Justice Blackmun to write the Court’s opinion in Roe, as well as Doe. In Blackmun’s preliminary draft, he wrote about the Texas law being vague. But Blackmun felt that his opinion was not representing the opinion of all the Justices, especially the liberal ones. So, in May 1972, he proposed that the case be reargued. This meant it would be reargued before a full court of nine Justices, because William Rehnquist and Lewis F. Powell, Jr. had now joined the Court (Roe v. Wade, 2017). In June 1972, the second round of oral arguments was ordered by Chief Justice Burger. Some people think that this was an attempt by Burger to move the decision to his more conservative position, because Justices Rehnquist and Powell were generally more conservative than the existing seven Justices. On October 11, 1972, the second round of arguments for Roe v. Wade and Doe v. Bolton began (Blackstone, n.d ). Weddington would continue to represent Roe. Coffee seemed to slip into obscurity. It is unclear if she was still co-counsel (Prager, 2017). Texas Assistant Attorney General Robert Flowers would take over the defense, in place of Jay Floyd (Roe v. Wade, 2017).
The Plaintiff’s Argument
Weddington’s argument was very similar to the original hearing in Texas. She argued that the Texas law outlawing most abortions violated Roe’s constitutional rights, and she had a right to have an abortion in a safe medical environment in Texas (Roe v. Wade, 2017).
She argued that the First, Third, Fourth, and Ninth Amendments established a “zone of privacy”, and that the right to continue or end a pregnancy was simply a continuation of the right to prevent a pregnancy by using artificial contraceptives (Blackstone, n.d.). According to Supreme Court Cases: Roe v. Wade (1973), Weddington argued that it is against the Bill of Rights for a state to deny an individual the “personal, marital, familial, and sexual” right to privacy, as stated in the 4th Amendment (Supreme Court Cases: Roe v. Wade, 1973). The National Museum of Crime and Punishment says that various Supreme Court Justices have acknowledged that the right to privacy is in the Constitution’s “penumbras”, (Roe v. Wade. Retrieved from http://www.crimemuseum.org), implied rights provided by the Constitution (Penumbra Law and Legal Definition, n.d.). The Court had previously recognized that right to privacy in several other abortion cases, including Griswold v. Connecticut, Stanley v. Georgia (1969), and Eisenstadt v. Baird (1972).
Weddington’s central argument was that a fetus was not a person under the United States Constitution, and therefore had no rights. (Oehlke, n.d.). Weddington also pointed out that “in no case in its history” has the Supreme Court ever claimed that a fetus is a person (Supreme Court Cases: Roe v. Wade, 1973). At one point, the court asked that if the fetus was found to be a constitutional person, would there be a case? Weddington said no. Weddington felt that it was the Court’s duty to decide whether or not the fetus was constitutionally a person. If not, then Roe could terminate her pregnancy by way of her right to privacy (Oehlke, n.d.).
This led to another argument for the plaintiff, that the Texas law was not supported by a compelling state interest. In other words, fetuses have no rights under the law in Texas. Therefore, the state has no interest in protecting fetal life (Arguments in Roe v Wade, n.d.).
Another argument for the plaintiff was that the Texas law violated the fundamental right of doctors to give medical care (Arguments in Roe v Wade, n.d.). Remember, that the court found in the United States v. Vuitch that abortion is to be treated as a medical procedure, and doctors should be able to decide what constitutes a danger to a patient’s mental or physical health.
Yet another argument for Roe was that just because Jane Roe is no longer pregnant, that does not make the case moot. This case fits within the exception for cases “capable of repetition, yet evading review” (Arguments in Roe v Wade, n.d.). In other words, it would always take longer for a case of a pregnant woman to reach the Supreme Court than to have her baby. This would make it impossible for any pregnant person to bring the case all the way to the Supreme Court and be heard. So, the defense cannot ask the Court to find the case moot, just because the woman is no longer pregnant.
Of course there were several other arguments for Roe, as well.
The Defendant’s Argument
Arguing for the State of Texas, Flowers, of course, had to defend every charge that Weddington made against the Texas statute.
Flowers argued that while Griswold v. Connecticut may have protected marital privacy, it did not protect the right for women to have an abortion. Abortions are performed in public places like clinics and hospitals, and by doctors and nurses who are total strangers to the woman, so this case does not concern privacy, as the Griswold case did (Arguments in Roe v Wade, n.d.).
The major argument for the defence was that the fetus became a person at conception (Blackstone, n.d.). Therefore, the fetus is a human being (Arguments in Roe v Wade, n.d.) , and that under the 14th Amendment, “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.” If the fetus was considered a person at conception, Flowers argued that it would be unconstitutional to allow any abortions because it would deprive that person of its right to life, without due process of law, and would deprive that person of equal protection under the law.
Another argument was that even if the right of privacy is considered to exist, the state still has a compelling interest in protecting pre-natal life, because a new human life is present from the moment of conception (Roe et al. v. Wade, District Attorney of Dallas County, n.d.).
The defence argued that the Texas law is not unconstitutionally vague, that this statute is clearer than most. They also argued that statutes that allow abortions for the “health and well-being” of the mother are more vague, not less vague (Arguments in Roe v Wade, n.d.), because there are no standards for what constitutes “health and well-being”.
The defence argued that because Jane Roe is no longer pregnant, she has no standing, and her challenge is moot (Arguments in Roe v Wade, n.d.). (I love using the word “moot”.)
Another argument for the defence was that the Constitution said nothing about the right to abortion, but the Constitution does mention the right to life. Plus, there is nothing to suggest that the authors of the 14th Amendment intended it to protect a right to abortion (Arguments in Roe v Wade, n.d.).
The Court’s Opinion
On January 22, 1973, the United States Supreme Court handed down a 7-2 decision in favor of Roe, found the Texas abortion law to be unconstitutional, and found that abortion is a fundamental right protected by the United States Constitution. Justices Harry Blackmun, Warren Burger, William Douglas, William Brennan, Potter Stewart, Thurgood Marshall and Lewis Powell voted in favor of Roe. Justices William Rehnquist and Byron White dissented. Justice Blackman was chosen, once again, to write the opinion of the Court.
The Court found that Roe did have standing, because it fits within the exception for cases “capable of repetition, yet evading review”. This means that any pregnant plaintiff would probably not be pregnant any longer, by the time her case got to the Supreme Court. The Doe v. Bolton case from Georgia was also found to have standing, was heard, and the Court found 7-2 in favor of Doe on the same day as Roe v. Wade. This overturned the existing abortion laws in Georgia. However, the Court found that the Texas cases of Doe and Hallford, which had joined Roe, did not have standing (Blackstone, n.d.).
In the Court’s opinion, Blackmun stated that the Constitution’s 1st, 4th, 9th, and 14th Amendments protect an individual’s “zone of privacy” against state laws. The Court cited past cases, including Griswold v. Connecticut, stating that private matters such as procreation, contraceptives, marriage, raising children, and education are protected by this “zone of privacy.” The Court then argued that the “zone of privacy” was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (McBride, 2006, Roe v. Wade).
The Court also ruled that because abortion is protected by the right of privacy, the decision to have an abortion, and actually having an abortion are fundamental rights protected by the United States Constitution from regulation by the states, with little exception. So, state laws that attempt to regulate or limit a person’s right to an abortion must be for a very specific and special reason, or ”sufficiently important” in order to create an exception, where the state may limit one’s rights. The Court looked at the history of abortion from ancient times to the present and found only three justifications for banning abortions. The first two were thrown out because they were outdated. The third justification was protecting prenatal life. Under the Constitution and America’s criminal and civil laws, prenatal life did not usually come under the definition of “persons” (McBride, 2006, Roe v. Wade).
While some people think that fetuses are people that deserve all rights, not everybody agrees with that. Texas made the argument that the fetus becomes a person at conception, and therefore has the right to life under the 14th Amendment. The Court said there are many opinions on when a fetus becomes a person, therefore, Texas was taking one “view of many”. They also said that Texas was basing their law on their one view, and that Texas was attempting to ban all abortions and protect all fetuses under this one arguable “view”. The Court said that this was not “sufficiently important” to justify banning almost all abortions in Texas. In other words, their reason for making an exception to limit one’s right to abortion was not sufficient because they were basing it on their one view that was not an accepted view by everyone (McBride, 2006, Roe v. Wade). Justice Blackmun applied a “strict scrutiny analysis” on abortion regulations (Roe v. Wade, 2017). Strict scrutiny is the highest level of study or analysis used by the courts to decide how much weight to give a right or principle versus the government’s interest in the principle (Strict Scrutiny, n.d.).
Blackmun did say, however, that the fetus was not a “person” under the 14th amendment. The Court found that the word “person” in the Constitution was not meant to include the unborn, and that the “unborn have never been recognized in the law as persons in the whole sense” (Blackstone, n.d.). The Court purposefully, refused to decide when life begins. Justice Blackmun wrote,
“We need not resolve the difficult question of when life begins, when those trained in the respective fields of medicine, philosophy and theology are unable to arrive at any consensus. The judiciary at this point in the development of man’s knowledge is not in a position to speculate as to the answer.” (Roe v. Wade, 410 U.S. 113, 1973)
The Court decided they had to balance the state’s interest in protecting the woman’s health and the state’s interest in protecting potential life (Roe v. Wade, In Depth, n.d.). The Court held that as the pregnancy progresses, the state’s interests in protecting the “potentiality of human life” (the fetus) grows inversely to the woman’s right to terminate the pregnancy (Konkoly, 2006).
The Court’s decision was to make different rules for the three trimesters of pregnancy.
During the first trimester, the state may not regulate abortion in the state has no interest in regulating abortion. The decision to have an abortion during this time is between the woman and her physician, and the final decision is actually up to the physician (Roe v. Wade, In Depth, n.d.).
In the second trimester, the pregnancy has progressed, and an abortion is now more complicated. Therefore, the state begins to have an interest in regulating “the abortion procedure in ways that are reasonably related to maternal health”. In the second trimester, the woman, together with her physician, may decide to have an abortion at any time. However, the states may make laws such as requiring certain qualifications of the people performing the abortions and where abortions can be performed (Roe v. Wade, 2005).
In the third trimester, the state’s interest in the “potentiality of human life” makes it possible for the state to not only regulate, but also even prohibit abortion, unless the mother’s life or health is in danger. By that time the fetus is determined to be capable of living outside the womb (Roe v. Wade, 2005).
Justice Rehnquist wrote his own dissent and concurred in the dissent written by Justice White. They both wrote harsh, very strong worded dissents.
Justice Rehnquist argued that in order for the Court to rule that states could not regulate abortion during the first trimester, the plaintiff had to be a woman in her first trimester. There was no proof that Roe was ever in her first trimester during the time that her case was being heard. Therefore, Roe had no standing to bring the case (Justice William Rehnquist: Dissent in Roe v. Wade, n.d.).
He also argued that since Roe had no standing, the case had become hypothetical rather than factual and was, therefore, not something the Court could rule on.
Rehnquist also argued that even if there were a plaintiff with standing, “I would reach a conclusion opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of ‘privacy’ is involved in this case.” He also argued that the actual operation of an abortion was not private at all. “A transaction resulting in an operation such as this is not ‘private’ in the ordinary usage of that word” (Roe v. Wade, Mr. Justice Rehnquist, n.d.).
In a rather insulting way, Rehnquist said that the right to privacy that the Court finds under the 4th Amendment is not “even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment” (Roe v. Wade, Mr. Justice Rehnquist, n.d.). In other words, while the 4th Amendment provides the right to privacy for citizens’, “persons, houses, papers, and effects, against unreasonable searches and seizures”, it’s big, big stretch to say that it provides a right to privacy, which in turn provides a right to an abortion…”it’s not even a distant relative” of the privacy that Rehnquist finds in the 4th Amendment.
He also argued that the Texas law should not have been subject to “strict scrutiny” but to the “rational relations” test. This was the test that was normally applied in due process cases, and the Texas law passed the rational relations test (Justice William Rehnquist: Dissent in Roe v. Wade, n.d.). Rehnquist then felt that striking down all restrictions on abortion during the first trimester “is impossible to justify under that standard” (the “rational relations” standard) and said that here, the Court’s opinion was “far more appropriate to a legislative judgment then to a judicial one.” Rehnquist is saying that the Court’s opinion is writing new law, and that is not their job. It is the Court’s job to interpret the intent of the 14th Amendment, not to write new legislation.
He also argued that, “The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment” (Roe v. Wade, Mr. Justice Rehnquist, n.d.). Again, he is saying that he believes that the Court is getting into writing new law (“judicial legislation”), which it is not supposed to do, rather than rule about the case and the 14th Amendment.
He also stated that the fact that they are still debating abortion rights, shows “that the right to an abortion is not so universally accepted as the appellant would have us believe” (Roe v. Wade, Mr. Justice Rehnquist, n.d.).
In a rather sarcastic way, Rehnquist wrote, “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” (Roe v. Wade, Mr. Justice Rehnquist, n.d.). Rehnquist said that by the time the 14th Amendment was adopted in 1868, there were at least 36 state laws limiting abortion, and “21 of the laws on the books in 1868 remain in effect today” (Roe v. Wade, Mr. Justice Rehnquist, n.d.). The authors of the 14th Amendment did not intend it to provide the right to an abortion. Otherwise, all 36 of those state laws would have been ruled unconstitutional immediately, back in 1868. So, what Rehnquist is saying is, how can the Court find the right to an abortion in the 14th Amendment, when the authors of that Amendment did not?
Justice Byron White also wrote a pretty harsh dissent. He said, “I find nothing in the language or history of the Constitution to support the Court’s judgement. 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” (Rehnquist, J., Dissenting Opinion, n.d.). In other words, White strongly disagrees with the Court and says he finds “nothing” in the Constitution to support the Court’s decision (Rehnquist, J., Dissenting Opinion, n.d.).
He feels that the Court is just making up a new constitutional right for pregnant women, with no real reason for making that law, and in doing so, that law is going to be a big law that will strike down most existing state abortion laws (Rehnquist, J., Dissenting Opinion, n.d.).
Even though Justice White says they’re making up this law, he also says that the plus side is that the people and the state governments don’t have to worry about making abortion laws and weighing the rights of the fetus against the rights of the mother, because the Court’s opinion has already done that for them (Rehnquist, J., Dissenting Opinion, n.d.).
Like Rehnquist, White also felt that while the Court might have the authority to make this ruling, he felt it was “an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court” (Rehnquist, J., Dissenting Opinion, n.d.). In other words, this opinion really stretches the limits of the powers that the Constitution gives to the Supreme Court.
White also said, “The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries” (Rehnquist, J., Dissenting Opinion, n.d.).
His main dissent was, “Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States.” In other words, whether or not he agrees with the Court valuing the convenience of the mother more than the rights of the fetus, he cannot join in the Court’s opinion because he does not find anything in the Constitution to support the Court’s judgment. White feels it should be left to the states (Rehnquist, J., Dissenting Opinion, n.d.).
Justice White also said that in such a sensitive area where people disagree strongly about abortion, he could not agree with the Court’s decision to strike down the state laws that protect human life, while giving mothers and doctors a “constitutionally protected right to exterminate it” (Rehnquist, J., Dissenting Opinion, n.d.).
The Roe decision gave women the constitutional right to control their bodies for reproductive purposes. It immediately struck down all state laws banning abortions. It also immediately gave women the right to have an abortion during all three trimesters of pregnancy, with some restrictions set up by the trimester framework.
Roe v. Wade caused great controversy nationwide. However, it was obviously by no means the final word on the subject of abortion. Politicians opposing Roe turned abortion into a national, political issue. There have also been attempts to overturn Roe v. Wade by court cases, constitutional amendment, and packing the Supreme Court. All these attempts so far have failed (Abortion – Roe v. Wade and Its Aftermath, n.d.).
Norma L. McCorvey never had an abortion (The Story of Norma McCorvey, n.d.). Instead, she went through with her third pregnancy and gave birth to her third child. McCorvey kept the alias “Roe” for over a decade, until she put it aside in the 1980s (Norma McCorvey, 2017), and she became an abortion activist. According to The Story of Norma McCorvey ( n.d.), around 1992, she started working at abortion clinics, but eventually, around 1995, after befriending many pro-life supporters, her views on abortion began to change. Around that time, she began to doubt the morality of abortion. Particularly, her friendship with a 7-year-old girl named Emily Mackey, the daughter of a pro-life supporter, inspired McCorvey to attend church and reject her pro-abortion views. She went back to the U.S. Supreme Court three separate times (in 1998, in 2003, and in 2005) attempting to overturn the Roe decision, but, of course, the overturn was denied all three times On February 18, 2017, she died of heart failure at age 69 (The Story of Norma McCorvey, n.d.).
For more than 40 years, Roe v. Wade has greatly impacted abortion in the U.S. and influenced both supporting and opposing arguments on abortion. Even today, nationwide groups, such as the Roman Catholic Church and the Evangelical Protestant Church, oppose abortion because it is considered a way of murdering the unborn. Tom Head (2017), on the other hand, says that pro-choice supporters believe that pregnant women have “unlimited autonomy with respect to their own reproductive systems”, and that at a point in which a fetus cannot live outside its mother’s womb, the government has no right to deny the mother’s choice to terminate her pregnancy.
The two graphs below from Abortion (n.d.). show the exact percentages of opinions that Americans have had on abortion since Roe v. Wade.
And so, the battle for abortion rights rages on!
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