ROE V WADE
On January 22, 1973, the U.S. Supreme Court handed down its historic and controversial Roe v. Wade decision which made abortion legal in this country. Prior to the decision, abortion was illegal in most states or, if it was legal, it was permitted only for extreme situations (e.g., if the pregnancy was a result of rape or incest). The Court voted 7-2 in favor of the decision, with Justices Blackmun, Burger, Powell, Douglas, Brennan, Stewart, Marshall in favor and Justices White and Rehnquist against.
The decision, which later was criticized by some as an example of “judicial activism,” was written by Justice Harry Blackmun and, instead of just affirming or not affirming the decision of the lower court, the court introduced a new set of rules for abortion that depended on the length of the pregnancy:
In the first three months (“trimester”), the state could treat abortion only as a medical decision which would be left to the woman and her physician;
In the second trimester, the state’s interest was seen as legitimate when it came to protecting the health of the mother so the state at that point could enact some restrictions;
In the third trimester, when the fetus became viable (i.e., the fetus to be able to survive outside and separate from the uterus), the potential of human life could be considered as a legitimate state interest so the state could “regulate or even proscribe abortion” as long as there were exceptions for when the health or life of the mother was endangered. Over the years, pro-life organizations argued that the term “health” was very vague and could be a justification for many abortions in the third trimester.
BASIS OF DECISION
The Court ruled that a “right to privacy” under the Due Process clause of the Fourteenth Amendment to the U.S. Constitution extended to a woman’s decision whether or not to have an abortion, but that right had to be balanced against the state’s interest in protecting prenatal life and protecting the woman’s health. Saying that these state interests became stronger over the course of the pregnancy, the Court tried to resolve this balancing test by tying the state’s regulation of abortion to the woman’s current trimester of pregnancy. A criminal statute that did not take into account the stage of pregnancy or other interests than the life of the mother was deemed a violation of Due Process.
In his dissent, Justice White asserted that the Court “values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries.” Despite White suggesting he “might agree” with the Court’s values and priorities, he wrote that he saw “no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States.” White then criticized the Court for involving itself in this issue by creating “a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it.” He would have left this issue, for the most part, “with the people and to the political processes the people have devised to govern their affairs.”
HISTORY OF ROE
In June 1969, Norma L. McCorvey learned that she was pregnant with her third child. Her friends advised her to assert falsely that she had been raped so she could obtain a legal abortion in the state of Texas. However, the plan failed because there no police report d ocumenting the alleged rape. Eventually, she met with two attorneys, Linda Coffee and Sarah Weddington, who agreed to challenge the restrictive Texas abortion law. McCorvey gave birth before her case was decided.
In 1970, McCorvey filed suit in a U.S. District Court in Texas under the alias of “Jane Roe.” The defendant in the case was Dallas County District Attorney Henry Wade, who represented the State of Texas (Mr. Wade happened to be the escort for Lee Harvey Oswald, the alleged assassin of President John F. Kennedy, when Oswald was killed on live television by Mr. Jack Ruby). In her suit, Ms. McCorvey no longer claimed that her pregnancy was the result of rape. Instead, she challenged the law arguing that it violated her constitutional rights and the rights of other women. The District Court ruled in McCorvey’s favor but declined to grant an injunction against the enforcement of the law. The District Court’s decision was based upon the Ninth Amendment and on a concurring opinion by Justice Arthur Goldberg in the 1965 Supreme Court case of Griswold v. Connecticut which argued that there was a “right to privacy” implicit in the Constitution.
Ultimately, the case made its way to the U.S. Supreme Court. Interestingly, the decision by the Court was not the front page news that day as it was the same day that President Lyndon B. Johnson died. Interestingly, although the decision made abortion legal in this country, many in the pro-choice movement were disappointed because the decision allowed for some restrictions on the abortion process.
Despite intense opposition to the Court’s decision, it was ten years later when the U.S. Senate voted on the “Hatch-Eagleton Amendment” (S. J. Res 3) that in essence would have reversed the Roe decision. Because it was an amendment to the Constitution, the measure needed 67 votes but the proposal did not even get a majority vote, losing 49 – 50, falling short by 18 votes.
Then, years later, Ms McCorvey wrote a book entitled “I Am Roe,” announcing that she was the “Roe” in Roe v Wade. During a signing of the book, she became friends with Flip Benham with the anti-abortion group, Operation Rescue. On August 8, 1995, she was baptized by Benham in a, backyard swimming pool and the conversion made national news. Two days later, she declared that she would become a pro-life advocate. She later explained her conversion:
“I was sitting in O.R.’s offices when I noticed a fetal development poster. The progression was so obvious, the eyes were so sweet. It hurt my heart, just looking at them. I ran outside and finally, it dawned on me. ‘Norma’, I said to myself, ‘They’re right’. I had worked with pregnant women for years. I had been through three pregnancies and deliveries myself. I should have known. Yet something in that poster made me lose my breath. I kept seeing the picture of that tiny, 10-week-old embryo and I said to myself, that’s a baby! It’s as if blinders just fell off my eyes and I suddenly understood the truth — that’s a baby! I felt crushed under the truth of this realization. I had to face up to the awful reality. Abortion wasn’t about ‘products of conception’. It wasn’t about ‘missed periods’. It was about children being killed in their mother’s wombs. All those years I was wrong. Signing that affidavit, I was wrong. Working in an abortion clinic, I was wrong. No more of this first trimester, second trimester, third trimester stuff. Abortion — at any point — was wrong. It was so clear. Painfully clear.”