Roe v. Wade is a landmark Supreme Court Case dealing with the legality of abortion. In 1973, the Court ruled that under a right to privacy under the due process clause in the Fourteenth Amendment, a woman is allowed to have an abortion (Roe v. Wade and Beyond). The legality of the abortion was first defined by trimester and then by viability. Even today, the ruling is hotly contested by both pro-lifers and pro-choicers.
Where life begins is the essential component to the case - does life begin at conception, or does life begin outside of the womb? Somewhere in between? Disagreement on this is the underlying issue, since it creates the distinction between
"murder" and women's health. The basis of legality derives from the earlier Griswold v. Connecticut, affirming the implied right to privacy in the Constitution (Ginsburg). Under this decision, the plaintiffs argued, a woman has a right to decided whether or not to abort her child (Roe v. Wade).
In 1821, Connecticut passed a law criminalizing abortion; by 1900, all fifty states had similar laws on the books. Roe v. Wade first arose when Norma McCorvey became pre
gnant with her third child and tried to get an abortion in Texas. She filed with the District Court under the alias Jane Roe. The Court found in her favor but declined to file an injunction against the standing abortion law. Roe reached the Supreme Court on appeals in 1970 (Mears and Franken).
The Court declined to rule until they decided two related cases, Younger v. Harris, which dealt with semantical jurisdicitonal issues, and the more relevant United States v. Vuitch, which d
ealt with the legality of abortion in cases where the mother's health is endangered. After ruling on these two, Roe v. Wade was then grouped with Doe v. Bolton, which considered the con
stitutionality of abortion specifically in Georgia. After Vuitch was decided, the judges heard Roe and Doe the following day (Franz).
Roe was argued before Burger's activist, liberal-leaning court (Ostling). Following a first round of arguments, seven Justices (Blackmun, Burger, Douglas, Brennan,Stewart, Marshall and Power) tentatively agreed that abortion should be legalized. However, they had differing reasons, opening the way to the concurrences to follow. Blackmun said Texas' law was overly vague and could potentially devolve into rounds of semantics. He later supplied in reargument, at the behest of his colleague Powell, that the law should be struck down on grounds of privacy (Rosen).
The Court eventually was decided in favor of Roe in a 7-to-2 decision, with White and Rehnquist as dissenters (Boonin-Vail). The majority opinion focused on the right to privacy and emphasized the mother's right-to-life over the fetus' potentiality-of-life. In his conucurring opinion, Douglas supplemented that while he agreed with his colleagues, the Ninth Amendment couldn't put forth federally enforceable rights (Greenhouse). Additionally, he emphasized the meaning of liberty and autonomy over one's body and actions (Greenhouse). His premise was based upon the fundemental right to make a choice over one's health and body, in addition to the ruled-upon right to privacy. The Court deemed abortion a fundamental right under Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny (Katsenis).
The minority opinion, composed of White and Rehnquist, was based upon what the justices considered the lack of constitutional warrant for the decision and violation of the principle of intent (Roosevelt). In Rehnquist's opinion, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter" (Rehnquist's Legacy).
Judicial implementation was more difficult and less harmonious than the decision itself (State Policies in Brief, An Overview of Abortion Laws). Many arguments were made on whether or not legislation should be based upon the premise of trimester or the mother's health. At first, it was decided to be trimester, when it was reargued, the basis was determined to be on viability (State Policies in Brief, An Overview of Abortion Laws). The ruling was then sent to the state legislatures in order for them to revise their own laws (Rosen). By 1975, after its last reargument, abortion was legalized with attached conditions in all U.S. states and territories (Roe v. Wade and Beyond).
In my opinion, the decision is valid. The premise, while not as defined as a concrete right to privacy, extended off precedent set in an earlier case, coincidentally also dealing with women's health (Ginsburg). Women have a right to their bodies, just as men do, and if it takes defining privacy under the Ninth and incorporation under the Fourteenth, then that's what it takes. In some cases, the fetus is a product of rape or incest. Some cases (like that of Santorum's wife) endanger the mother's health and life to carry the child to full term (Marcotte). And many other cases, the woman does not have the resources to afford a child (Cohen). It's cases like this that warrant the Supreme Court to step in and intervene where the legislature will not.
Recently, the ruling has come over more scrutiny than ever - it's turned into a case of Roe v. World. Transvaginal probes, ultrasound laws and waiting periods have been passed in many states and stop short of infringing on the ruling. Many argue against abortion on religious or moral grounds, asserting repeatedly disproven and non-credible scientific studies. Alaskan Representative Alan Dick recently said, "I thought you needed a man's signature to get an abortion" (Aarons-Mele). Since women who get abortions (or even take birth control) have been considered on the right as sluts and whores, it seems paramount, however obvious, to explain that women do not see abortion as a salon appointment or a movie out (Sorrentino). It is a decision that carries weight and much consideration. The decision to have an abortion is by no means frivolous. But it should remain an option, for those with nowhere to turn - those who have been raped, in danger of dying, or cannot keep the baby - abortion should be an option.
Infringements and ignorance have been a source of backlash, with counterproposals and rallies. After the transvaginal probe law was on the floor in Virginia, Democrat Janet Howell proposed a law that would subject those who seek Viagra to an anal probe, an unnecessary but invasive procedure to parallel the transvaginal probe (Vestal). The subject of abortion serves to make us a nation further divided. It is a subject many feel impassioned about, and such partisan camps have been set up as to leave relatively little gray area. Women, first and foremost, have a right to their bodies. Life should be valued over the potential to have life, and a women's right to choose should carry the same gravitas as as anyone's. Abortion must retain its legality for society to progress.
Sources:
Aarons-Mele, Morra. "It's Not Abortion Politics, It's Breadwinning Politics." The Huffington Post. TheHuffingtonPost.com, 04 June 2012. Web. 08 Apr. 2012. .
Boonin-Vail, David. "A Defense of "A Defense of Abortion": On the Responsibility Objection to Thomson's Argument." Ethics 107.2 (1997): 286. Print.
Cohen, Richard. "Support Choice, Not Roe." Washington Post. The Washington Post, 20 Oct. 2005. Web. 07 Apr. 2012. .
Franz, Wanda. "The Continuing Confusion about Roe v. Wade." National Right to Life. 1 June 2007. Web. 07 Apr. 2012. .
Ginsburg, Ruth B. "Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade." North Carolina Law Review 63.2 (1985): 375-86. Print.
Greenhouse, Linda. Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey. New York: Times, 2005. Print.
Katsenis, Katherine. "A Defense of Abortion." Women's Studies 33.2 (2004): 242-43. Print.
Marcotte, Amanda. "The XX Factor." Karen Santorum's Impure Youth. Slate Magazine, 17 Jan. 2012. Web. 08 Apr. 2012. .
Mears, William, and Bob Franken. "30 Years after Ruling, Ambiguity, Anxiety Surround Abortion Debate." CNN. Turner Broadcasting System, Inc., 21 Jan. 2003. Web. 07 Apr. 2012. .
Ostling, Richard N. "A Second Religious Conversion for 'Jane Roe' of Roe vs. Wade." Meta Redirect Code. 19 Oct. 1998. Web. 07 Apr. 2012. .
"Rehnquist's Legacy." The Economist. The Economist Newspaper, 30 June 2005. Web. 07 Apr. 2012. .
"Roe v. Wade and Beyond." Frontline. PBS, 19 Jan. 2006. Web. 07 Apr. 2012. .
"Roe v. Wade." FindLaw. Web. 07 Apr. 2012. .
Roosevelt, Kermit. "Shaky Basis for a Constitutional 'Right'" The Washington Post. 22 Jan. 2003. Web. 8 Apr. 2012. .
Rosen, Jeffery. "The Dissenter, Justice John Paul Stevens." New York Times. 23 Sept. 2007. Web. 7 Apr. 2012. .
Rosen, Jeffery. "Why We'd Be Better Without Roe: The Worst Choice." The New Republic. 19 Feb. 2003. Web. 7 Apr. 2012. .
Sorrentino, Mary A. "Abortion: Real Women, Tough Choices, Personal Freedom." Open Salon. Salon, 17 Mar. 2012. Web. 8 Apr. 2012. .
"State Policies in Brief, An Overview of Abortion Laws." Guttmacher Institute. 1 Jan. 2007. Web. 7 Apr. 2012. .
Vestal, Christine. "States Probe Limits of Abortion Policy." Stateline. 22 June 2006. Web. 08 Apr. 2012. .
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