Wednesday, September 4, 2013

Roe v Wade: The Most Popular Supreme Court Case?

Perhaps one of the most controversial Supreme Court cases ever, if not outright the most controversial, is Roe v. Wade, 410 U.S. 113 (1973). It is certainly the most popular Supreme Court case of all time. It all started when Jane Roe, a.k.a. Norma McCorvey, a single mother of two in Dallas, Texas, got pregnant for a third time. Feeling that she could not financially support a third child, twenty-one-year old Jane Roe filed a lawsuit. At that time the Texas law on abortion was severely restrictive, basically stating that a woman could only get a “legal” abortion if the mother’s life was threatened by the continuation of her pregnancy. The defendant in the case was Dallas County District Attorney, Henry Wade, who represented the State of Texas.

The Burger Court ruled 7 to 2 in favor of Roe, using the Fourteenth Amendment’s Due Process Clause (particularly the word “liberty” therein) to strike down the Texas law. Justice Harry Blackburn wrote for the court, explaining that the Due Process Clause protects a woman’s “liberty” from state interference, and the word “liberty” includes a woman’s personal, qualified right to have an abortion. The key to the ruling, according to the court, was that the woman did not have an unfettered right to have an abortion. Justice Blackburn divided pregnancy into three trimesters. In the first, a woman has an unqualified right to an abortion; in the second, the state can regulate abortions in “ways that are reasonable related to maternal health;” and in the third, the state can regulate and even prohibit abortions.

Justices Byron R. White and William Rehnquist both wrote emphatic dissents, primarily stating that they found no “language” or “history” of the Constitution to support the Court’s decision. The true controversy of this case is the fact that incorporates many different facets, and that it is not just a matter of words in the Constitution. Dissenters of the ruling generally point to two things: no Constitutional text to support the decision and that life begins at fertilization, or conception (pro-lifers), and should therefore be protected under the Constitution. The second point is usually the one that is the most debated between the pro-choicers and pro-lifers. Pro-choicers also point to gender discrimination, and the fact that this is primarily a woman’s issue but has pretty much been decided by men. Under the Fourteenth Amendment’s Equal Protection Clause, the case could also be won, as this protects against gender discrimination. In fact, the Roe decision was also an attempt by the Burger Court to respond to an important emerging constituency: the Organized Women’s Movement.

Roe v. Wade not only established a fundamental constitutional right to abortion, but it also sparked a continuing controversy over the role of the court in deciding the issue. Planned Parenthood of Southern PA v. Casey, 505 U.S. 833 (1992), is another example of the court’s longstanding issue with abortion. Casey was a Pennsylvania law that required women to wait twenty-four hours for an abortion; the twenty-four hour period began after consulting with a doctor. The law also required that minors have the consent of at least one parent. Other requirements also applied, as well as another law aimed at restricting abortion called the Pennsylvania Abortion Control Act. With then President George H. W. Bush and other Republicans calling for Roe to be overturned, the Court surprised many observers with the Planned Parenthood decision. By a vote of 5 to 4, the Court upheld many aspects of Pennsylvania law dealing with abortion; however, they not only did not overturn the Roe decision, they invalidated a provision in the Casey law stating that required a woman to tell her husband before getting an abortion. The majority held that the decision in Roe had “established a rule of law and a component of liberty that they could not renounce.”

Majority voters, Justices Sandra Day O’Connor and David Souter, both were on the fence according to whether or not to overturn the Roe decision or not. Both had been appointed to the bench by President Ronald Regan in hopes that they would overturn Roe, but they both conceded that overturning Roe would politicize the court and lead to questioning of the court’s legitimacy. Bonnie Scott, lawyer for the Center for Reproductive Rights, said in regard to the Planned Parenthood decision of that the Supreme Court is “no longer striking down laws just because they’re sort of discrimination against abortion; you have to show that these laws impose an undue burden on women.”

Since the Roe decision, the Court made several rulings in other cases on abortion that many would think would ultimately lead to them eventually overturning Roe. In Maher v. Roe (1977), the Court ruled that the states were not required to fund abortions for indigent women; in Harris v. McRae (1980), the Court ruled that Congress did not violate the Constitution when it prohibited the use of non-therapeutic abortions; and a variety of other cases (i.e. *Akron v. Akron Center for Reproduction, 1983; *Thornburgh v. American College of Obstetricians & Gynecologists, 1986) also added a variety of regulations that made it more difficult to have an abortion. So, the powers enumerated in the U.S. Constitution have shifted and vacillated on this issue several times throughout the years, even before Roe. This debate will certainly continue as Republicans continue to try and take the White House. Many Republicans, namely those running for the GOP Presidential nomination (during debates), have publically stated if given the opportunity they will seek to overturn Roe v. Wade.

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