Rowe vs Wade
Roe vs. Wade: "The Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment. It is evident that the Texas abortion statute infringes that right directly.
Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas. The question then becomes whether the state interests advanced to justify this abridgment can survive the 'particularly careful scrutiny' that the Fourteenth Amendment here requires.The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. But such legislation is not before us, and I think the Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment of personal liberty worked by the existing Texas law. Accordingly, I join the Court's opinion holding that that law is invalid under the Due Process Clause of the Fourteenth Amendment" (Craig and O'Brien 17).On January 22nd, 1973 Justice Harry Blackmun gave the decision of the Supreme Court in regards to the Roe vs. Wade case.
A single pregnant woman, "Jane Roe," had filed a class action lawsuit challenging the constitutionality of the Texas criminal laws regarding abortion, which stated having or attempting an abortion except on medical advice for the reason of saving the mother's life. Norma McCorvey, the plaintiff's legal name, was young and recently divorced at the time, searching for a way to resolve her unplanned pregnancy. "No legitimate doctor in Texas would touch me," stated McCorvey. There I was - pregnant, unmarried, unemployed, alone and stuck" (Craig and O'Brien 5). The plaintiff's argument was that prohibiting abortion at any time before the actual birth of the child violated a woman's constitutional right to privacy. The Supreme Court eventually agreed with Mrs. McCorvey, finding it justifiable that abortion under the fourteenth amendment was legal.
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A person's right to privacy had to now extend to the extent of choosing to have an abortion. Although the Court did not discuss the issue of when life actually begins, abortion became legal under this landmark Supreme Court decision.The debate over whether abortion should be legal had taken place in America for several decades, and the final decision rendered by Roe vs. Wade resonated through all of America, influencing society even to this date. Until inside the last half of the nineteenth century, when it was criminalized on a state by state basis across America, abortion was legal before approximately the fourth month of pregnancy. In early colonial medical guides there were recipes for instigating abortions with plants and herbs that could be grown in one's garden or easily procured in the woods.By the middle of the eighteenth century, commercial items were widely available that served the same purpose.
Unfortunately, these drugs happened to be often fatal. The first statutes regulating acquiring an abortion, passed in the 1820s and 1830s, were actually laws for poison control: selling of commercial abortion agents was outlawed, but abortion itself was not. Despite these newly appointed laws, the business of abortion was booming by the 1840's, this included the sale of illegal drugs, which were advertised very widely in the popular press.However, this trend would change. Following the 1840's, abortion was under attack, and a string of anti-abortion laws would be put in place until the twentieth century. The pushing force behind this criminalization of abortion was doctors and the American Medical Association. The AMA was founded in 1847, and the elimination of abortion was one of its top priorities.
To the growing movement, "abortion was both an immoral act and a medically dangerous one, given the incompetence of many of the practitioners then" (Joffe 28). However, the opposition went beyond these factors.To many people during the later years of the nineteenth century, abortion represented a threat to the traditional role of a woman in society and the authority of males. Abortion was a symbol of unrestrained female sexuality, expressing self-centered and self-indulgent qualities. The AMA's Committee on Criminal Abortion portrayed this view blatantly in 1871. "She yields to the pleasures - but shrinks from the pains and responsibilities of maternity; and, destitute of all delicacy and refinement, resigns herself, body and soul, into the hands of unscrupulous and wicked men" (Joffe 9). As the twentieth century arrived, over forty states had completely outlawed abortion unless the mother's life was in direct danger, and many others had put strict regulations in place.
However in spite of these emerging laws, people still acquired abortions illegally for decades until the Roe vs. Wade decision. Frederick Taussig performed a study in 1936 which showed an estimated half million illegal abortions. In 1953, ninety percent of all premarital pregnancies ended in illegal abortions, and twenty percent of married couples had abortions performed.Illegal abortions climbed in numbers to over a million a year until Roe vs. Wade. Although the law dictated the morality of having an abortion, it was still a considerable part of society.
The Roe vs. Wade decision was first argued in December 1971, after being before the Supreme Court for over a year. Although this decision would be later analyzed and debated over, little attention was brought up in regard to the case at the time. Chief Justice Burger opened the Court's oral arguments, and each was given only thirty minutes to present their case and answer questions.Sarah Weddington, who was the main lawyer defending Norma McCorvey argued that abortion needed to be legalized farther than the case in which a woman's life is in danger. The physiological and psychological factors could also warrant an abortion. However, seeing as how the Supreme Court has no jurisdiction over public policies, Weddington decided to argue that current abortion laws were in violation of the fourteenth amendment.
The fourteenth amendment guarantees the right to liberty without due process of law, and the decision made this right extend to a woman's right to choose to be pregnant.During her closing argument, Weddington stated if "liberty is meaningful... that liberty to these women would mean liberty from being forced to continue the unwanted pregnancy" (Craig and O'Brien 17). Jay Floyd, the assistant attorney general of Texas, then presented his case arguing against the legalization of abortion. Weddington had argued that many women had no other choice but to have an abortion because of their social and economic status.
However, Floyd contended that despite external factors, every person has free autonomy. Now I think she makes her choice prior to the time she becomes pregnant. That is the time of her choice. It's like, more or less, the first three or four years of our life we don't remember anything. But once a child is born, a woman no longer has a choice, and I think pregnancy then determines that choice" (Craig and O'Brien 17). Thus, Floyd argued, the fourteenth amendment had not been violated since pregnancy was a result of free will, and liberty was not denied. If pregnancy was a conscious choice on the woman's part, then abortion was not warranted.
Another crucial chapter of the Roe vs. Wade trial was the debate of when a fetus is given constitutional rights. In response to Texas' harsh abortion restrictions, Floyd explained that Texas "recognized the humanness of the embryo, or the fetus" and had"a compelling interest because of the protection of fetal life" (Craig and O'Brien 17). However, there were many flaws with this statement in the court. First, the topic at hand was not the constitutional rights of embryos, but whether abortion was in violation of a person's right to liberty.Second, there had been no state law or court decision which had equated abortion with murder. Thus, Floyd's argument amounted to nothing more than personal opinion, with no relativity to the case.
The Court needed to ensure the constitutional rights of the woman before protecting the "rights" of the unborn fetus. The fourteenth amendment as it is stated applies only "to all persons born or naturalized in the United States," and if the Court granted the fourteenth amendment to unborn children, it would be an extreme case of judicial activism (Craig and O'Brien 20).After two years of listening to both sides, the Supreme Court finally came to a decision. The right to privacy and liberty was broad enough to include a woman's choice for abortion. The fourteenth amendment granted personal liberty, which includes a woman's body and unborn fetus. Although the Court determined the legality of abortion, they left the responsibility of how to implement it to the states themselves. Like Brown vs.
The Board of Education of Topeka, a general decision on constitutionality needed to be left to local governments to be implemented. Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest,' and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake" (Craig and O'Brien 27). Although the court did not provide any precise methods of how to implement, it did set vague guidelines regarding the developmental stage of the fetus.A mother had the choice to abort the pregnancy in the first trimester, but limitations were put in place on abortion where it is allowed in the second and third trimesters if the right to liberty and privacy of the mother was still preserved. The immediate reactions to the Roe vs. Wade decision were heated and extreme, as abortion is still an extremely controversial topic. The president of Planned Parenthood hailed the decision as "a wise and courageous stroke for the right of privacy, and for the protection of a woman's physical and emotional health" (Craig and O'Brien 32).
However, there were just as many people in agreement with the decision as its opposition. Cardinal Terence Cooke came after the Justices, claiming that "whatever their legal rationale, seven men have made a tragic utilitarian judgment regarding who shall live and who shall die" (Craig and O'Brien 32). Roe vs. Wade launched the abortion issue to the national level, making it a source of political and social arguments in the years to follow. On the tenth anniversary of the decision, The Washington Post discussed its effects on society. "[Roe vs.Wade] has drastically changed the Court's image, fostered wholesale attack on 'judicial activism' and mobilized thousands of supporters and opponents of legalized abortion in a debate that has reshaped the political terrain in many states and, at times, has virtually halted the work of Congress.
Few court decisions have had a more immediate impact on such a personal aspect of American life" (Craig and O'Brien 35). The Roe vs. Wade decision has affected all parts of society, from the role of the Supreme Court to the level of humanness of an unborn fetus.Many scholars regard this case as the "Dred Scott" of the twentieth century. The decision ignited a national debate on judicial activism, and the part the Supreme Court plays on public policy. No other case similar to Roe vs. Wade has had such an extreme impact on public law.
Furthermore, the case has drawn an imaginary line, diving the whole country into the pro-life or pro-choice category. Almost immediately following the decision, a great deal of pro-life and pro-choice groups were created, and abortion has remained a prominent political, social, and moral issue.No other subject has resonated importance in American politics. Finally, the Roe vs. Wade outcome is considered a symbol of the changing society during the 1970's. In the past, abortion was highly restricted and frowned upon, mimicking the conservative society. However, as the 1970's marked a rise in liberalism and the need for individual freedoms, the Roe vs.
Wade decision to make abortion legal mirrored this willingness to embrace a person's autonomy. Roe vs. Wade marked an unforgettable change in government, politics, and society.Works Cited Craig, Barbara Hinkson and David M. O'Brien. Abortion and American Politics. Chatham, New Jersey: Chatham House Publishers, 1993.
Hickok, Eugene W. Justice vs. Law: Courts and Politics in American Society. New York: Free Press/Macmillan, 1993. Joffe, Carole. Doctors of Conscience: The Struggle to Provide Abortion Before and After Roe v. Wade.
Boston: Beacon Press, 1995. Olasky, Marvin. Abortion Rites: A Social History of Abortion in America. Washington DC: Regnery Publishing, 1992. Rubin, Eva R. Abortion, Politics, and the Courts: Roe v. Wade and its Aftermath.
New York: Greenwood Press, 1987.
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