The Supreme Court

Starting the Abortion Debate

Long before Roe v. Wade made it to the doorstep of the Supreme Court, the issue was creating controversy throughout the United States. Women who could afford it found a way to get an abortion in states where it was legal or secretly in private doctors' offices. Poor women who could not afford to travel, but chose to have an abortion, did so at illegal make-shift clinics that frequently did not meet even the minimum standards of cleanliness. Many women were hospitalized or died after these illegal abortions. In fact, statistics in 1965 showed that 17 percent of deaths related to pregnancy and childbirth could be tied to abortion. The laws that made it a criminal offense for a doctor to perform an abortion were 100 years old or more in most states.

Just the Facts

By the late 1960s, efforts were being made in almost every state to decriminalize abortion. Supporters from health care providers, women's rights advocates, clergy members, and the legal community lobbied state legislatures to overturn laws that were in place before 1900. Most of these laws dated back to the mid-1800s. Prior to that time, abortion was allowed in this country before “quickening” or first fetal movements. Between 1967 and 1973, four states appealed their abortion laws—Alaska, Hawaii, New York, and Washington. Lawsuits challenging the remaining laws were working their way through about a dozen states.

Jane Roe, who is now identified as Norma McCorvey (she went public in 1984), was a single woman from Texas who found out she was pregnant for the third time. Her mother had custody of her first daughter and the father of her second daughter took custody of that child. McCorvey was a high school dropout from a broken home and spent a good part of her childhood in reform schools.

When she went to her doctor and said she didn't want the third child, he said he wouldn't help her. She approached a second doctor who sent her to an attorney with the expectation that he would help her find someone to adopt the baby, but she did tell the attorney she wished abortions were legal in Texas. He put her in touch with the two attorneys who ended up arguing the case all the way to the Supreme Court—Linda Coffee and Sarah Weddington. These attorneys were working with the First Unitarian Church, which was planning to challenge the Texas law with a public campaign. Coffee and Weddington thought a court case would give them needed publicity for the campaign.

After McCorvey, Weddington and Coffee met, they decided to file suit against the Dallas County district attorney Henry Wade, seeking an injunction to bar him from enforcing the Texas statute. The statute making abortion a criminal act dated back to 1854 and carried a penalty of two to five years in jail. In the complaint filed on March 3, 1970 in federal court, Roe alleged that the law denied her “right to safe and adequate medical advice pertaining to the decision of whether to carry a given pregnancy to term” and asked the court to declare it unconstitutional citing rights related to the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments. They certainly wanted to be sure something stuck.

The federal court ruled in Roe's favor based on the Ninth Amendment and the state of Texas appealed the case to the United States Supreme Court. In their unanimous decision on June 17, 1970, the United States Appeals Court panel of judges ruled that Texas abortion laws “must be declared unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children.”

The primary case used as precedent for this decision was Griswold v. Connecticut (1965), which involved the appeal of the criminal conviction of the executive director of the Planned Parenthood League of Connecticut for providing contraceptives to married couples. In that case the Supreme Court ruled that a state statute making it a crime to use birth control violated a couple's right to privacy, using the Ninth Amendment as the basis for that ruling.

Court Connotations

The Ninth Amendment to the Constitution states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment was used in previous cases to grant individuals fundamental rights to be protected from governmental infringement.

Roe v. Wade made it to the doorstep of the Supreme Court in October 1970, but it wasn't until May 21, 1971 that the court announced it would review the case. It also decided to review a Georgia case, Doe v. Bolton. Georgia's law had been modernized and allowed abortions to protect a woman's health or in the case of rape, but required there be a three-doctor panel to determine if abortion would be allowed. It also imposed restrictions on abortion procedures. Arguments were set for December 13, 1971. At that point the court had only seven justices. Hugo Black and John Harlan had resigned within six days of each other in September 1971 because of cancer and both died before the end of 1971.

Just like the previously controversial desegregation case, the justices could not come to a decision and decided to rehear the case in the next session. By the time the case was heard for the second time, Rehnquist and Powell were on the bench.

Living Laws

Roe legalized abortion nationwide. At the time the decision was handed down, most states outlawed abortion except to save a woman's life or for limited reasons such as preserving the woman's health, instances of rape, incest, or fetal anomaly. Roe declared these laws unconstitutional, making abortion services safer and more accessible to women throughout the country. The legal precedent set by this case affected more than 20 subsequent Supreme Court cases involving restrictions on access to abortion.

Blackmun, who had been assigned to write the decision by Burger after the first conference, continued to research the issue through the summer. In the conference after hearing the case for the second time, Blackmun urged his brethren to strike down the abortion laws. He got five justices to go along with him and then Burger joined the majority so he could have influence over the writing of the opinion.

The key controversy was the question of “viability.” The court had to determine at what point a fetus is viable, which is when the court would permit restrictions on abortion. In writing the decision, Blackmun developed the idea of breaking up pregnancy into three trimesters. During the first trimester (first three months), Blackmun placed no restrictions on abortion, leaving decisions entirely up to a woman and her doctor. During the second trimester (middle three months), Blackmun said states could regulate abortion to protect a women's health. Blackmun only allowed states to prohibit abortions in the third trimester—unless childbirth endangered a woman's health.

Just the Facts

Norma McCorvey joined the anti-abortion movement in the mid-1980s. She filed a suit in 2003 trying to overturn Roe v. Wade. In her motion to a Dallas federal court, she claimed changes in the law and advances in medicine made the original decision unjust. She said in a rally to support her suit, “I'm so sorry that I filed that affidavit. I long for the day that justice will be done and the burden from these deaths will be removed from my shoulders.” McCorvey's recent motion was quickly denied. Most saw it as a publicity stunt and not a serious court case.

Rather than use the Ninth Amendment as a basis for ruling the Texas law unconstitutional, Blackmun instead based his decision on the Fourteenth Amendment's due process clause, which guarantees the right to the concept of personal liberty. Seven of the nine justices signed onto Blackmun's decision, including Burger. Rehnquist and White dissented. Blackmun wrote in his decision:

The firestorm of political debate started by this decision still festers in the United States today. When the decision came down, the country was evenly divided. In the first Gallup Poll after the decision, 46 percent of the respondents supported the right of a woman and her doctor to choose to have an abortion in the first trimester, while 45 percent opposed. A Gallup Poll released in May 2003 found that 80 percent of the population thinks that abortion should be legal under any (23 percent) circumstances or certain (57 percent) circumstances. Only 19 percent say that abortion should be illegal under all circumstances.

Serious attempts to overturn Roe v. Wade so far have failed, even though a number of cases have made it to the Supreme Court. Restrictions have been placed on women's rights in these later cases, such as the need for young women to get parental consent to have an abortion. Many believe one more conservative justice will be enough to overturn Roe v. Wade, but that will depend upon which justice is being replaced.

book cover

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

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