Table of Contents
- 1 Summary of Roe v. Wade
- 2 Maureen’s Legal Bottom Line of the Roe v. Wade Case
- 3 Some more information on the Roe v. Wade case
With the recent challenge to the Texas law on abortion, I thought I would do a summary of Roe v. Wade case. This iconic, and controversial case, deals with the Fourteenth Amendment, the right of privacy. This right of privacy goes up against the State’s interest in protecting unborn children. This case from 1973, so it’s not really a trending legal issue. But, you know, it IS still trending probably because of the recent Dobbs v. Jackson Women’s Health Organization case.
Summary of Roe v. Wade
At the time that the Supreme Court took Roe v. Wade, Texas illegalized abortion unless it was done to save the mother’s life. Basically, it was a crime to either get an abortion or to perform an abortion.
Isn’t this quaint. It’s a Texas déjà vu all over again.
For a more in-depth look at abortion after Roe v. Wade, I found a book called Abortion and the Law in America (affiliate link). I’m not recommending it because I haven’t read it yet, but I thought it would be an interesting read.
Before we begin, Jane Roe (the plaintiff) is a fictitious name. Like, Jane Doe except Jane Roe. The irony of roe being a fish’s egg is not lost on me. At any rate, Jane Roe sued Henry Wade, the district attorney of Dallas County, Texas, because abortion was illegal in Texas “except on medical advice for the purpose of saving the mother’s life.” (There were some other plaintiffs, but they aren’t that important as the Supreme Court dismissed those cases.)
Roe won in the U.S. District Court for the Northern District of Texas. Wade appealed directly to the Supreme Court.
On January 22, 1973, the Supreme Court issued a 7–2 decision of Roe, holding that women had a fundamental right to choose whether to have an abortion without excessive government restriction. The majority opinion was written by Justice Harry Blackmun. The Supreme Court struck down Texas’s abortion ban as unconstitutional.
The (Old) Texas Statute On Abortion
The Texas laws in question were Articles 1191, 1192, 1193, 1194, and 1196.
Article 1191. Abortion
If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By ‘abortion’ is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused.
Article 1192. Furnishing the means
Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.
Article 1193. Attempt at abortion
If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.
Article 1194. Murder in producing abortion
If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.
Article 1196. By medical advice
Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.
Article 1195 was not challenged, but it read:
Article 1195. Destroying unborn child
Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.
Basically, this law said that a doctor couldn’t perform an abortion, a mother couldn’t get an abortion, and someone else couldn’t help the mother get an abortion, unless the abortion was by the medical advice to save the mother’s life. Further, if the mother died because of the abortion, it was murder. If the child could have been born alive (e.g. after a certain number of months), a person could get 4 years to life for “destroying” the baby.
Who Was Jane Roe?
Jane Roe’s real name is Norma McCorvey. She was unmarried and pregnant. The beginning of the written opinion determined whether the Supreme Court could hear a case directly appealed from the District Court (it could because it was a “specific denial of injunctive relief”) and whether Jane Doe had standing in this case (she did). Standing simply means whether she is affected by the challenged laws at the time that the case was decided in the Supreme Court (not just when the case was initiated).
Standing in this case is interesting, because by the time this case was in the Supreme Court, Roe was not pregnant. However, SCOTUS wrote that “the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete.” That means that a pregnant person would never have standing because she would give birth before SCOTUS could decide the case. So, they decided she had standing because she was pregnant when she initiated the lawsuit.
By the way, Roe v. Wade had two other companion cases, but the Supreme Court dismissed theirs for lack of standing.
History Of Abortion
SCOTUS then wrote, at length, about the history of abortion. Not much is interesting here, unless you really wanted to know the history of abortion all the way back to the Roman times.
The Justification To Criminalize Abortion
The Supreme Court advanced three reasons that American laws criminalized abortion.
- Discourage illicit sexual conduct. Texas did not advance this reason.
- Hazardous to women. Until more modern procedures, particular antiseptic in nature, abortions placed the mother’s life in serious jeopardy. The Supreme Court acknowledged that the States had a legitimate interest in protecting women through the safety of medical procedures performed within the State. However, the hazard of abortion procedures had largely disappeared.
- Protection to the prenatal life. “Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception.” For this reason, only when the mother’s life is at stake should an abortion be done.
The Constitutional Right Of Privacy
The Constitution does not explicitly mention any right of privacy. The Supreme Court did, however, point out that the Court has granted this right in many different cases. The Court wrote:
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
The Court recognized that having an unwanted child would “force upon the woman a distressful life and future.”
** Of course, many proponents of pro-life have adamantly stated that if a woman does not want a child, she shouldn’t have sex. This sentiment is outdated, as well as gender-biased. It isn’t up to the State to determine whether a woman has sex. That basically writes a law to punish a woman for doing something that a man (or a homosexual couple, or a woman unable to bring a child to term) could do unfettered. Laws are required to be (although they are not) written for everyone, not a specific segment of the population.
The Court stated the polar opposite of the State’s interest—that women should be able to have an abortion whenever they chose—was also unpersuasive. They emphasized that the State had a legitimate interest in “safeguarding health, in maintaining medical standards, and in protecting potential life.” At some point in the pregnancy, the State’s interests outweighed a woman’s personal interest in her bodily privacy. The Court cited several cases that other states (other than Texas) ruled.**
** The Supreme Court often takes cases where the States disagree on a subject.
Is The Fetus A Person?
Texas argued that the fetus was a person within the definition of the Constitution. The Fourteenth Amendment defines a person as a Citizen, or someone born or naturalized in the United States. A person, of course, can also be born or be a citizen of another country. What this means is that our Constitution (and the Amendments) only apply to our citizens.
The Court then stated that the Constitution indicated that a person “with any assurance” was prenatal.
Does Life Begin At Conception?
The highest Court declined to answer this question, stating that if “those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at a consensus,” then they won’t.
SCOTUS then went through various state laws in mainly the tort-area (such as if a fetus dies in a car accident, could the parents sue the driver of the other vehicle). The Court recognized “viability,” or the ability of the fetus to live outside the mother’s womb even with artificial aid. That time was seven months (28 weeks), “but may occur earlier, even at 24 weeks.”
Maureen’s Legal Bottom Line of the Roe v. Wade Case
In Roe v. Wade, the Supreme Court stated that the Fourteenth Amendment (through the Ninth Amendment) provides a fundamental “right to privacy” that protects a woman’s right to privacy, e.g. control over her body, to choose whether to have an abortion. The Supreme Court concluded that criminalizing abortion unless to save the life of the mother was too broad. But this right to have an abortion is not absolute. The right to privacy must be balanced against the State’s interest in protecting the woman’s health and the baby’s life before birth. The State’s interest in potential life was when the fetus was viable, or able to live outside of the mother’s womb even if with medical assistance.