Roe vs. Wade is a landmark case that established the right of a woman to have an abortion. Before this case only a very few number of states had legalized abortion, and even those generally had strict guidelines based on length of time a woman had been pregnant, unless abortion was necessary for the woman’s safety. Women in states where abortion was outlawed were forced to go to unlicensed doctors to receive dangerous abortion operations with questionable methods. Roe vs. Wade arose around the late 1960’s when views were becoming more liberal and there was a national movement to get abortion legalized. They only needed a case they could take to the Supreme Court.

Norma McCorvey was an unmarried woman who had fallen out with her family and traveled with a carnival for work. One night she was allegedly raped while walking with her friends after the carnival had closed for the night. The carnival left without her that night, and she was left unemployed. Soon she found out that she was pregnant. At the time she was in Texas, and it was illegal for her to get an abortion as she wished to do. McCorvey could not afford to travel to a state with legal abortion, and did not wish to put herself at risk by having a back alley abortion. Lawyers Linda Coffee and Sarah Weddington met with McCorvey and decided she would be the vessel by which abortion would be taken to the Supreme Court. McCorvey agreed to stay with them for the long run, even if it meant taking her child to term, and so the case was born.

The suit was filed against Henry Wade, who was the District Attorney of Dallas County. The two lawyers chose to take the case to the three-judge Fifth circuit Federal Court in New Orleans because it offered a direct appeals route to the Supreme Court, and because Federal Courts are more geared to hear cases that challenge state laws. Wishing to protect Norma McCorvey’s identity, and because they did not want the defense learning about her sketchy past, her lawyers issued her then name Jane Roe and the case gained the title “Roe vs. Wade.”

Coffee and Weddington based their case on the Fourteenth Amendment, which guarantees everybody equal protection under the law. They used Griwold vs. Connecticut as a template, because that case determined that birth control could not be regulated because it was a private matter, and therefore protected under the constitution. The lawyers also argued that bans on abortion violated the First Amendment right to associate with whomever one pleases, in this case, abortion doctors, and the Fourth Amendment’s protection against unreasonable searches and seizures. They also used the Fifth Amendment stating that it’s protection from self-incrimination applied, and that the Eighth Amendment was also valid because being forced to bear an unwanted child could be considered cruel and unusual punishment.

John Tolle, the defense attorney for Dallas County went in cocky and unprepared. All that he arranged for the defense was the fact that most medical literature considered the fetus a separate entity from the woman. He said that the case should be thrown out because Texas laws only punished those who performed abortions, not those who sought them, and that Jane Roe may or may not be a real person (she never showed up in court.) The three judges: William Taylor, Sarah Hughes, and Irving Goldberg, had to decide between two rights-the fetus’ right to survive, or the right of the woman to privacy.

On June 17th, 1970 the Fifth Circuit Court in New Orleans ruled that abortion laws were unconstitutional because the laws failed to clarify when a physician could legally perform an abortion, and that the Ninth Amendment protected the right of a woman to choose. The court did not however, issue an injunction to prevent Texas or any other state from enforcing their anti-abortion laws, so the ruling became powerless. Coffee and Weddington chose to take the case to the Supreme Court to try and win the battle once and for all. A similar defeated case from the Georgia district, Doe vs. Bolton, was brought under the Roe vs. Wade umbrella to go to the Supreme Court.

Physician James Halliford was incorporated into the case as well, as he had been charged for performing an illegal abortion. Roy Lucas, an attorney for the James Madison Law Institue offered legal resources and funding. Assistance was also offered from the New York Chapter of the Association for the Study of Abortion. Sarah Weddington would present the case.

Presiding over the case was Justice Warren Burger, and almost from the start, Halliford was tossed from the case, because he was still being tried in a criminal court in Texas. Also, the court decided to dismiss Doe vs. Bolton, because the couple was not expecting a child, and so the case did not really apply to them. Finally the case proceeded.

Weddington’s case depended on a few key factors. She stated that the Ninth and Fourteenth Amendments supported women’s rights to receive an abortion, and that the state could not prove that the fetus did not die before the abortion occurred. Since there can be no presumption of life without proof, she argued that there should be no presumption of death either. Her final argument revolved around the fact that fetuses have no legal rights to trusts, wills, or estates before birth, that they do not have any legal rights at all, whereas the pregnant woman did have legal rights.

The defense insisted that Roe vs. Wade be declared moot, because Roe had already given birth to her child (the case had dragged on so long she had no choice) and as she was no longer pregnant, the law did not apply to her anyways. They argued that the case should be returned to a state court because Dr. Halliford was a member of the appellate and was still involved with criminal prosecution within the state. Thirdly he argued that since the Fifth Circuit Court had failed to grant injunctive relief, it should not have granted declaratory relief. Finally he argued, that the state made no distinction between the stages of growth of a fetus, and instead claimed that it was alive at the moment of impregnation.

Justice Burger himself was in favor of upholding the Texas law banning abortion, although he did believe the laws were unconstitutional because of their vagueness. Judge White firmly believed the laws should be upheld, while Justices Marshall, Douglas, and Brennan thought the law should be overturned completely. Stewart and Blackmun favored overturning some of the laws. Burger kept delaying the vote, and managed to get the case argued again, because he wanted to avoid an absolute decision while Richard Nixon was in the Oval Office, because Nixon was completely pro-life, and Burger did not want to embarrass him. Soon though, Nixon gained reelection, and appointed new Justices Powell and Rehnquist who were both supposedly very right wing. Burger continued to hold out until another one of the judges threatened to break an unwritten rule, and go public about the Court’s disagreements.

Burger finally gave in, and on Monday January 22, 1971 the Supreme Court decided to strike down the Texas anti-abortion laws, because their unclear language was considered unconstitutinal. They ruled that abortion was totally legal in the first trimester (three months) of a pregnancy, in the second trimester the state could only intervene against abortion if the woman’s health depended on it, and states could put any restriction on abortion during the third trimester. The consequences of that fateful decision have echoed down to our time, and will continue to reverberate well into the future.

The debate on abortion has continued to rage, and the pro-life faction (who received their name after the case) has been struggling to get the ruling overturned, although it does not appear they will achieve victory any time soon. At times violence has erupted and continues to break out from time to time. The Roe vs. Wade ruling has even had an impact on the field of genetics, where the perception of embryos as not full, living human beings has helped pass legislation allowing valuable research to be conducted in the field that may one day help many people.

Recently though, McCorvey has come out and claimed to have made a grave mistake by supporting abortion, and has since become a staunch pro-life activist. She admitted to making up the story of her rape, and said that she had never even wanted to support the case to begin with, although the validity of the latter statement is debatable. Apparently, Jane Doe from Doe vs. Bolton has also switched allegiances to the pro-life issue, although right now it looks like their support could not turn the tide against the decision anyways.


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The importance of Roe v. Wade to American politics and culture is something almost intuitive to modern, politically-aware Americans, but which perhaps might not be as familiar to foreigners or future generations. Hotly debated and highly polarizing, Roe is unquestionably the most controversial Supreme Court ruling of the modern day, arguably the most since Dred Scott v. Sandford, and possibly the most since the inception of the court. Opposition to and qualms with Roe comes along many lines and from many (sometimes opposing) sources, and some of the most important are noted below.

First, and most obvious, are complaints from those who oppose abortion itself. In general, these begin with the assertion that the fetus is morally equivalent to a born human, from which would naturally follow that abortion is morally equivalent to murder, concluding that the two should be treated as legally equivalent. At its most emotional, opposition to the Roe decision along these lines asserts that as it allows "murder", it is wrong. At its more abstract, it holds that the natural rights of life and self-determination central to American political thought can, and in fact to avoid contradiction must, be applied to the unborn, and that a failure to protect them from abortion amounts to a failure to maintain the "equal protection of the law" promised in the Fourteenth Amendment. It is these complaints, especially the more emotional varieties, that tend to get the most attention, at least in the popular press. If not the pivot around which opposition to Roe turns, they are at least the fulcrum underneath the issue's political center of gravity.

Next is the more technical argument that Roe is simply bad law, a position held by many abortion opponents, but also by those who believe that abortion should not be addressed at the national level and even some legal scholars who count themselves as ardent supporters of legal abortion. Roe v. Wade, while not actually creating the concept of a "right to privacy" implicit in the Constitution (that was mostly established in 1965 with Griswold v. Connecticut, and its intellectual roots are often traced back to a Harvard Law Review article published in 1890 by Samuel Warren and future Supreme Court Justice Louis Brandeis) has done more than anything to cement its place in the legal and popular culture.

Strict constructionists, of course, object to this on the grounds that it is at best an overly broad reading by the Court, which should properly stick to a literal reading of the document, leaving all issues of "flexibility" and unaddressed or unforeseen issues to be dealt with through the provided process of amendment. (Here limited-government advocates note that while with the right to privacy, restrictions on the government are being read into the text, given an environment where such interpretations are accepted, it could as easily go the other way, with the commerce and elastic clauses as precedent.) At the worst, these opponents argue, the decision represents a ham-handed attempt to justify, after the fact, a policy decision, properly the sphere of the legislative branch.

With the justification of rights at issue set aside, Roe opponents taking this legal tack point out that it would certainly be possible to address abortion at the state level, and in fact the Tenth Amendment marks states as the appropriate forum for these policy issues. Prior to the Roe decision, abortion was de jure legal in a handful of states and de facto legal in many areas, and several promising attempts were underway to challenge state bans, either by repeal through legislation or overturning in lower courts, and these "federalists" cite this as evidence that abortion can be handled in a measured, less polarizing, and small-d democratic manner at the state level.

Finally among the major strains of dissent with regards to Roe are those who support its ultimate effect, but question the wisdom of its selection as a means to that end or the strategic position which victory in Roe has left their movement. With the Roe decision, all the above-mentioned state-by-state attempts to legalize abortion naturally ceased. With victory came a loss of momentum, and as any halfway-decent revolutionary or demagogue can tell you, political movements eat, drink, and breathe momentum. Donations, volunteering, and enthusiasm fell sharply, and with good reason - the battle won (for the time), it was difficult to articulate exactly what was being striven for. Many organizations shuttered their doors, while the survivors consolidated and focused on adapting to a post-legalization world.

This did not, of course, mean that everyone was happy with the status quo. The state-by-state efforts at legalization had meant that opposition to abortion had never risen as a coherent, organized national force, but it would. There are ways to pacify political opposition and get opponents used to living in your world, but an imposition of your will by judicial fiat is not a particularly good way. When the legalized abortion movement lost a rallying cry, the anti-abortion movement gained one, and its constant repetition in fundraising letters, speeches, and denunciations delivered as messages from God swelled the ranks and the coffers of the usually Christian-aligned abortion foes like Operation Rescue, Jerry Falwell's Moral Majority, and the Christian Coalition, often broad-based, "religious right" groups that contributed significantly to the rise of the Republican Party in the 1980s and 1990s, following the eventual collapse of the Democrats' long-lived New Deal coalition.

While these opponents often attempted to strike at Roe directly, they by no means felt compelled to use the legalization movement's tactics exclusively, and were active at the local and state level, contributing to the passage of laws that fell within the acceptable boundaries of regulation that the justices had left to the states, limiting the conditions under which abortions could be performed or making them more difficult to obtain, especially for women of limited means. In a new generation of court cases culminating in Planned Parenthood v. Casey, these laws were often upheld as constitutional. While these chinks in the invincible armor of Roe helped somewhat to renew enthusiasm and support for abortion rights groups like NARAL, it did not pacify abortion opponents, and still left abortion supporters on the defensive, attempting to rebuild institutional momentum from scratch while unable to articulate much of a proactive agenda.

While the Supreme Court does tend to hold to the precedent-upholding principle of stare decisis, this is by no means the secular equivalent of papal infallibility, and courts have reversed positions on "settled" issues before, perhaps most famously in Brown v. Board of Education, which ran directly counter to Plessy v. Ferguson. Of course, victory in Roe forestalled any movement to have a right to privacy or abortion explicitly amended into the Constitution. The development of a right-wing "superstructure", with groups like The Federalist Society serving to encourage and assist conservatives (many of whom might be itching to get at Roe) and libertarians (who at the least might like to kick the issue back to the states) climbing the ladder of judicial power could feasibly bear fruit in the overturning or re-envisioning of Roe in the next few decades. Given such a situation, the abortion rights movement might feasibly be able to rebound and eventually take the day - polls have recorded widespread, if not especially enthusiastic, support for legal abortion - but, as these opponents point out, it may well have been easier to just do it right the first time around.

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