ROE v. WADE

A. The principals

The appellant was Jane Roe (a pseudonym), who challenged the constitutionality of Texas Statutes Articles 1191, 1192, 1193, 1194 and 1196 concerning abortion.  Her lawyer argued that the interference of the State of Texas in Roe’s private life was:

• a violation of the legitimate use of police powers of the state.
• a violation of Roe’s right to privacy, which had been established in  Griswold v. Connecticut.  This was tantamount to violating her right to due process and equal protection under the law (14th Amendment).

The appellee was the State of Texas.  It argued that:

• the anti-abortion statutes represent a legitimate exercise of the  police power of the state
• the fetus is a person and as such is protected under these laws.

B.

In Roe v. Wade, the Court addressed the Texas Statutes and attempted to determine why these statutes had been passed, and whether there were good reasons behind them consistent with the state interest in the police powers.  The Court came up with three possible reasons for the statutes:

1. These laws may be the product of Victorian social concern to discourage illicit sex. (This reason was not used by Texas, but it is a possible one.)
   Response: This is not the proper concern of the state.
   
2. These laws may reflect the state’s interest in protecting citizens from unsafe medical procedures.

Response: Even if this was the purpose of the laws, today abortions performed with appropriate medical supervision are safe.  

3. These laws reflect the state’s interest in protection of prenatal life.    Some argue that the fetus is a human person from conception and therefore the state has a right to prohibit killing fetuses.  Others do not make this claim but claim that the state has an interest in the protection of potential human life.
   Responses:
•  There is some scholarly support for the claim that 19th century laws were not designed to protect prenatal life.
• If the laws were designed to protect prenatal life because it is a human person, the laws do not make sense.  If the fetus is a human person, then why is the physician (or person performing the abortion) not guilty of murder? Why is the mother not an accomplice to murder?  Why is attempted abortion not attempted murder?

C. The argument of the Court

The argument of the Court rests on the idea that there are three important interests at stake.

1. 1. The woman's interests
   The woman has an interest and a right to 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.’ (The reference to the ninth Amendment –the people retain rights not mentioned in the Constitution, is to be taken in conjunction with the Court’s decision in Griswold v. Conn. (1965), which found a right to privacy for married couples implied by other constitutional rights and even preceding constitutional rights. Just before Roe these rights were extended to all individuals, married or not).
   NOTE: However, the Court argued that no rights or interests are absolute.  The issue, then, was to determine when other interests are sufficiently strong to override the woman's interest in privacy and liberty.
   
2. The interest of the State in Health and Safety of Citizens.
   The Court recognized the interest of the state to protect the health of its citizens by regulating the practice of medicine.
   
3. The interests of the State in protecting potential human life.
   The court recognized the interests of the state in protecting potential human life.
    NOTE:
• The Court determined that a fetus is not a person under the Constitution.  The Court revised the use of the word "person" in the Constitution and in other legislation and never found it used as a reference to the unborn. It concluded that fetuses legally have not been considered persons.
• With respect to the claim that human life (human personhood) begins at conception (and therefore legally we should include fetuses as persons) the Court reviewed the controversy. It concluded that the woman's important rights to privacy and liberty could not be overridden by the adoption of a controversial theory of the beginning of human life.

D. Conflicting interests and the stages of pregnancy

1. First trimester

Since abortions at this early stage are extremely safe, the state has no compelling interest to regulate beyond its normal interest in protecting health.  Because of the nature of the fetus at this early stage, the State's interest in protecting potential life is also minimal.  Consequently, these other interests are not sufficiently strong to interfere in the privacy and liberty of the woman.

2. Second trimester

Since abortions become more risky at this stage, the state's interest in regulating them is stronger.  Hence, it can regulate, provided the regulation is reasonably related to the health of the woman.  The state's interest in protecting potential human life is also stronger, since the potential human is closer to becoming an actual human person.  However, that interest is not yet sufficiently strong to allow the state to interfere in the woman's privacy and liberty.

3. Third trimester

The woman's interest in privacy and liberty are as strong as before.  However, once the fetus is viable, the Court believes that the State may choose to regulate, even prohibit, abortion, as long as the life and health of the mother are not threatened.

E. The decision of the Court  

• Laws prohibiting abortions except those intended to save the life of the mother without regard for the stage of pregnancy and other interests, violate the Due Process Clause of the 14th Amendment, and are therefore unconstitutional.
• First trimester: no regulation is allowed during this period of time.  The decision is left to the woman and a qualified physician.  However, the state may regulate the medical practice of abortion.
• Second trimester: the State may regulate abortion in ways reasonably related to the health of the woman.
• Third trimester (from the point of viability): the State may regulate, even prohibit, abortion, consistently with its interest in the potentiality of human life, except where necessary in appropriate medical judgment for preservation of the life or health of the woman.

NOTES:

1. There is a potential conflict between the third trimester and the viability requirements, since technology pushes the moment of viability earlier and earlier.
2. In a related decision, the Court made clear that by "health" it meant both physical and psychological health.  

The decision was 7-2, with justices White and Rehnquist writing an emphatic dissenting opinion.

F. Further major developments

Since Roe v Wade, anti-choice legislatures and governors, mainly Republican, have passed state laws with two main goals:

1. Kill Roe v Wade by regulation

2. Get Roe v Wade reversed by the Supreme Court

Webster v. Reproductive Health Services (1989)

Missouri placed restrictions on abortion by:

· Banning the use of public funds for abortion and abortion counseling unless the life of the woman was in danger

· Banning abortions in public hospitals and clinics, unless the life of the woman was in danger

· Forbidding public employees to assist in the performance of abortion, unless the life of the woman was in danger.

In a 5-4 decision, the Supreme Court did not overturn the law; however, it reaffirmed that provision limiting abortion in the second trimester are unconstitutional.

Planned Parenthood v. Casey (1992)

The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required:

· Informed consent and a 24 hour waiting period prior to the procedure.

· The demand that a minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure).

· The demand that a married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus.

In 5-to-4 decision, the Court reaffirmed Roe, but it upheld most of the Pennsylvania provisions by imposing a new standard, namely, whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement.

Gonzales v. Carhart (2007)

In 2003, the Federal Government passed the Partial-Abortion Act Ban, which prohibits a specific abortion procedure (intact dilation and evacuation) in which the fetus is pulled out feet first and then killed by crushing the skull to remove it.  Proponents argued that it’s a rare procedure amounting to killing a baby; opponents argued that the ban also prohibits a common procedure, dilation and curettage, and that it’s sometimes necessary to protect the life and health of the woman.

In a 5-4 decision, the Court determined that the ban is constitutional because consistent with Roe and Planned Parenthood.

Ultrasound Laws

In recent years, in the USA about 20 states have adopted, or are considering adopting, laws that require a woman seeking abortion to undergo ultrasound procedures to give her the opportunity to observe the fetus and hear its heartbeat. (As an example of such laws, here is the ultrasound law in the state of Texas).

In Texas, the woman may decline the viewing and hearing but not the exam. Apart from particular cases such as rape or certified severe malformation of the fetus, she is required to listen to an explanation of the status of the fetus. Usually, in early pregnancy (before 9-10 weeks), the ultrasound examination is carried out by inserting an 11 inch wand made of hard plastic in the vagina of the woman, what’s medically called a transvaginal sonogram. 80% of abortions are carried out before the 10^th week, which means that most women seeking an abortion will have to undergo this invasive procedure. No matter what the outcome, the woman has still a legal right to have an abortion; in other words, the examination is legally irrelevant to the right of the woman to have an abortion.

Notes:

· Such laws amount to the following: if you are a woman trying to exercise you legal right to have an abortion before 10 weeks, a right the Supreme Court has claimed to be rooted in the Constitution and which no State has any right to prohibit, you may be required to be vaginally penetrated whether your doctor believes this is medically necessary or not.

· Here’s the definition of rape according the World Health Organization: “physically forced or otherwise coerced penetration – even if slight – of the vulva or anus, using a penis, other body parts or an object.” (The definition is at p. 149 of this document, which also explains that threats about losing one’s job or getting a job count as coercion).

· Presumably, a woman who does not want to undergo a transvaginal sonogram will postpone abortion to about 12-13 weeks, by which time the ultrasound examination is typically carried out without the need of penetration of any body cavity.

Thought Question: how does the law sit with the idea that the later the abortion the more wrong it is?

Thought Question: Is the threat to prevent you from exercising a legal right unless…, amount to coercion? Note that a woman has no legal right to a job but she has a constitutionally based right to have an abortion. If so, does transvaginal sonogram in the law amount to state mandated rape?

Of course, a judge blocked the law because it clearly is incompatible with Roe v Wade.