In 1973 the United States Supreme Court decided the case of Roe V. Wade. Jane Roe was a single mother trying to raise one child on a limited income. She was living in Dallas Texas when she became pregnant with another child. There were no medical issues that would have prevented her from carrying this child to full term. The lack of income and already having a child was her deciding factor.
In March of 1970 Jane Roe filed suit against the state of Texas. She declared that the Texas Criminal Abortion Statues were unconstitutional. Jane Roe claimed that the Texas statue was vague and took away her right of personal privacy. These rights were protected by the first, fourth, fifth, ninth and fourteenth amendments as far as Jane Roe was concerned. Roe claimed that she was not suing for herself alone but for all women.
Many cases went before Roe V. Wade but none as famous. To understand Roe V. Wade we first have to look back. Poe V. Ullman (1961), Griswold V. Connecticut (1965), United States V. Vuitch (1971) and Eisenstadt V. Baird (1972). All these cases were about our rights. What right God gave us and what rights are in the Constitution and Bill of Rights. The first cases were about ending laws that kept contraceptives out of individual hands. In Griswold V. Connecticut the (8-1) decision was a land breaking mark. It gave the substantive Due Process new life and enhanced our rights to privacy.
Since the beginning of time abortion has been controversial. To some it is a taboo to others it is a right that only a woman can decide for herself. In the thirteenth century the termination of a fetus, no matter what stage of pregnancy was considered a homicide. Later in society abortion was looked at less harshly. By the 1970s abortion was illegal in almost every state. If you had an abortion or performed one you would be prosecuted. The decision whether or not abortion was legal was left up to individual states.
The statues that made abortion a crime in Texas are articles 1191-1194 and 1196 of Texas’s penal code. Under these codes the only way a woman can have an abortion is if her life is in danger and she will die if one is not performed. Texas has had anti abortion laws since 1854. The first ever written abortion statue was in England in 1803 it made abortion of a ‘quick fetus’ a capital crime punishable by death. Lesser punishments for an abortion done before quickening were enacted. ‘Quickening’ is defined as the fetus’s first sign of movement in the womb. This act by Lord Ellenborough was the bases for abortion laws in the United States.
Connecticut was the first state to pass abortion legislation. Although women would not receive the death penalty it would be illegal and not without consequences to terminate a pregnancy for a women ‘quick with child’. New York followed Connecticut’s lead and also enacted anti abortion laws in 1828. New York made all abortions illegal no matter what part of pregnancy the women were in. New York made it a misdemeanor to terminate a pregnancy in the first stages; in the latter stages it would be considered manslaughter. Most States adopted this way of dealing with abortion statues.
A committee on criminal abortions was put in place in May of 1857. This committee would watch over the large population at hand and decide why people have abortions and why people should not have abortions. A change came about in the 1950’s that dissipated the difference between the different stages of pregnancy. All abortions were illegal and penalties would be enforced for both women and the doctors who preformed the abortion.
Norma McCorvey known as Jane Roe too most, and her lawyer Sara Weddington challenged the statutes of all states not just Texas. Twice The United States Supreme Court heard the Roe V. Wade case. With the retirement of two Supreme Court Justices, Black and Harlem, the court would have to appoint two new justices. Powel and Rehnquist were added to the court and Douglas would take over as Chief Justice of the Roe Court. Blackmun worked night and day on the Roe case and it would be Blackmun who would write the ruling for the court. The Supreme Court of the United States held that abortion was a constitutional right to all women.
A fetus was not looked at as a human being. To look at abortion as murder the court decided that a fertilized egg should have the same traits as a full term baby. The court looked at the principal of privacy and the fourteenth amendment and did not extend the rights to an unborn fetus. The court in Roe V. Wade turned to medical evidence this evidence led them to a three-tiered approach. In this approach they separated a pregnancy into three trimesters. The first trimester is when most abortions occur. In fact, in the first trimester is when ninety percent of the abortions occur. The court deemed that a woman’s rights in the first trimester to have an abortion could not be infringed upon. In the second trimester greater restrictions were put into place. These restrictions in the second trimester would be left up to individual states. These restrictions would be for the health and safety of the woman pregnant only. In the third trimester when a fetus is capable of surviving outside a woman’s body abortions are illegal, only the government can interfere. This sparked great controversy out side the courts and inside the courts.
The seven to two decisions was delivered by Blackmum with the concurring opinion of Burger, Douglas, Brennan, Stewart, Marshell, and Powell. White, and Rehnquist gave the dissenting opinions. Rehnquist and White the two dissenting opinions contested this ruling for many years. They believed the ruling to be inadequate and disapprove of their fellow justices decision
"Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, 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. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of 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. Katz v. United States, 389 U. S. 347 (1967),” Quoted by Justice William Rehnquist.
"With all due respect, I dissent. 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. . . . 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.” Quoted by Justice Bryon R. White.
The courts action as far as Rehnquist and White are concerned goes past the courts jurisdiction. The Supreme Court in Roe V. Wade was interpreting the constitution our Four Fathers wrote, not protecting it. Rehnquist and White were worried about the fact that the fourteenth amendment had nothing mentioning abortion in it.
The majority of the Court found these rights that Roe was asking for. They found the rights in the Constitution and The Bill of Rights. The Court decided that a woman’s body is her own and that women have the right to choose. The majority of the Court lead by Blackmun took the decision out of the states hands and put it back into the woman’s. The Court could not recognize a potential child as an actual child. The right to privacy was upheld in the majority decision. The majority decided that the quality of life will increase and there would be less unwanted children. The Court deemed freedom to our own bodies above a fetus life.
With more than 1.5 million abortions carried out in the United States each year you can see that Roe V. Wade has not been over turned. The cases that have come after Roe V. Wade such as Doe V. Bolton (1973) have left their mark. In Doe V. Bolton a seven to two decision concluded that a woman could have an abortion from six months to the birth of a child if a physician thinks it necessary.
In a Webster V. Reproductive Health Services (1989) a five to four decision changed the basic standard of Roe V. Wade. A Missouri statue made restrictions on abortions. A twenty weeks test was enforced. Missouri thought of human life as starting at conception. Missouri made testing for late term pregnancy a must. Missouri also stated that it had a great interest in preserving all life. Roe V. Wade was not completely over turned but was changed to a stricter set of circumstances. Planed Parenthood V. Casey (1992) the five to four decision made a mandatory twenty-four hour waiting period for those individuals who wanted to have an abortion. This waiting period would give individuals a time to think about their actions and decide if an abortion was really what they wanted.
With the right that the Roe Court bestowed upon Americans to have freedom over their own bodies and to make their own decisions the statue will be hard to over turn. Although there have been greater restrictions put on abortion laws we still have a right to an abortion. Whether or not the Constitution states it directly or the justices implied our rights to an abortion it is a part of our society. As Americans we value our rights and want less governmental control.
1Constitutional Law and Abortion, Internet source at http://members.aol.com/_ht_a/abtrbng/conlaw.htm
2 Roe v Wade in a Nutshell, Internet source at
3 Roe v. Wade, 410 U.S. 113(1973)
4 Overview of Roe v. Wade, Internet Source
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