Roe v. Wade 68493 226044751 2008-07-16T16:07:41Z Fieldday-sunday 6803532 Reverted edits by [[Special:Contributions/216.124.157.79|216.124.157.79]] (using [[WP:HG|Huggle]]) {{SCOTUSCase |Litigants=Roe v. Wade |ArgueDate=December 13 |ArgueYear=1971 |ReargueDate=October 11 |ReargueYear=1972 |DecideDate=January 22 |DecideYear=1973 |FullName=[[Norma McCorvey|Jane Roe]], et al. v. [[Henry Wade]], District Attorney of Dallas County |Citation=93 S. Ct. 705; 35 L. Ed. 2d 147; [http://www.lexis.com/research/slft?cite=3139373320552E532E204C455849532020313539&keyenum=15451&keytnum=0 1973 U.S. LEXIS 159] |USVol=410 |USPage=113 |Prior=''Judgment for plaintiffs, injunction denied'', 314 F. Supp. 1217 (N.D. Tex. 1970); ''probable jurisdiction noted'', 402 U.S. 941 (1971); ''set for reargument'', 408 U.S. 919 (1972) |Subsequent=''Rehearing denied'', 410 U.S. 959 (1973) |Holding=Texas law making it a crime to assist a woman to get an abortion violated her due process rights. [[U.S. District Court for the Northern District of Texas]] affirmed in part, reversed in part. |Oral Argument=http://www.oyez.org/cases/1970-1979/1971/1971_70_18/argument/ |SCOTUS=1972-1975 |Majority=Blackmun |JoinMajority=Burger, Douglas, Brennan, Stewart, Marshall, Powell |Concurrence=Burger |Concurrence2=Douglas |Concurrence3=Stewart |Dissent=White |JoinDissent=Rehnquist |Dissent2=Rehnquist |LawsApplied=[[Fourteenth Amendment to the United States Constitution|U.S. Const. Amend. XIV]]; Tex. Code Crim. Proc. arts. 1191–94, 1196 }} '''''Roe v. Wade''''', [[Case citation|410 U.S. 113]] (1973) is a controversial [[United States]] [[Supreme Court of the United States|Supreme Court]] case that resulted in a [[landmark decision]] regarding [[abortion]].<ref name="Roe">''Roe v. Wade'', [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=410&page=113 410 U.S. 113] (1973). Findlaw.com. Retrieved [[2007-01-26]]</ref> According to the ''Roe'' decision, most laws against [[abortion in the United States]] violated a [[United States Constitution|constitutional right]] to [[privacy]] under the [[Due Process Clause]] of the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]]. The decision overturned all [[state law|state]] and [[federal law|federal]] laws outlawing or restricting abortion that were inconsistent with its [[holding]]s. ''Roe v. Wade'' is one of the most controversial and politically significant cases in U.S. Supreme Court history. Its lesser-known companion case, ''[[Doe v. Bolton]]'', was decided at the same time.<ref name="Doe">''Doe v. Bolton'', [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=410&invol=179 410 U.S. 179] (1973). Findlaw.com. Retrieved [[2007-01-26]].</ref> The central holding of ''Roe v. Wade'' was that abortions are permissible for any reason a woman chooses, up until the "point at which the [[fetus]] becomes ‘viable,’ that is, potentially able to live outside the mother's [[uterus|womb]], albeit with artificial aid. [[Fetus#Viability|Viability]] is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."<ref name="Roe"/> The Court also held that abortion after viability must be available when needed to protect a woman's health, [[Doe v. Bolton#Broad definition of health|which the Court defined broadly]] in the companion case of ''Doe v. Bolton''. These court rulings affected laws in 46 states.<ref>William Mears and Bob Franken, [http://www.cnn.com/2003/LAW/01/21/roevwade.overview/ “30 years after ruling, ambiguity, anxiety surround abortion debate”], CNN ([[2003-01-22]]): “In all, the Roe and Doe rulings impacted laws in 46 states.”</ref> The ''Roe v. Wade'' decision prompted national debate that continues to this day. Debated subjects include whether and to what extent abortion should be illegal, who should decide whether or not abortion is illegal, what methods the Supreme Court should use in constitutional [[adjudication]], and what the role should be of [[religion|religious]] and [[morality|moral]] views in the political sphere. ''Roe v. Wade'' reshaped national politics, dividing much of the nation into pro-''Roe'' (mostly "[[pro-choice]]") and anti-''Roe'' (mostly "[[pro-life]]") camps, and inspiring [[grassroots]] activism on both sides. ==History of case== In 1970 at the Pennsylvania State House, attorneys [[Linda Coffee]] and [[Sarah Weddington]] filed suit in a U.S. District Court in [[Texas]] on behalf of [[Norma McCorvey|Norma L. McCorvey]] ("Jane Roe"). McCorvey claimed her pregnancy was the result of [[rape]].<ref>[[Richard Ostling]]. [http://www.texnews.com/1998/texas/roe1019.html "A second religious conversion for 'Jane Roe' of Roe vs. Wade"], ''Associated Press'' ([[1998-10-19]]). McCorvey recanted the rape claim years after the ''Roe'' decision.</ref><ref name="testimony"/> The defendant in the case was [[Dallas County, Texas|Dallas County]] District Attorney [[Henry Wade]], representing the State of Texas. The district court ruled in McCorvey's favor, but refused to grant an [[injunction]] against the enforcement of the laws barring abortion.<ref>''Roe v. Wade'', 314 F. Supp. 1217 (1970), http://upload.wikimedia.org/wikipedia/commons/0/0f/Roe.pdf (PDF courtesy link). Retrieved [[2007-02-01]]</ref> The district court's decision was based upon the [[Ninth Amendment to the United States Constitution|Ninth Amendment]], and the court also relied upon a concurring opinion by Justice [[Arthur Goldberg]] <ref> ''Roe v. Wade'', 314 F. Supp. 1217 (1970), http://upload.wikimedia.org/wikipedia/commons/0/0f/Roe.pdf (PDF courtesy link). Retrieved [[2007-11-24]] </ref> in the 1965 Supreme Court case of ''[[Griswold v. Connecticut]]'', regarding a right to use [[contraceptive]]s. Few state laws proscribed contraceptives in 1965 when the ''Griswold'' case was decided, whereas abortion was widely proscribed by state laws in the early 1970s.<ref>O'Connor, Karen. Testimony before U.S. Senate Judiciary Committee, "[http://judiciary.senate.gov/testimony.cfm?id=1553&wit_id=4399 The Consequences of Roe v. Wade and Doe v. Bolton]" ([[2005-06-23]]). Retrieved [[2007-01-30]]</ref> ''Roe v. Wade'' ultimately reached the U.S. Supreme Court on [[appeal]]. Following a first round of arguments, Justice [[Harry Blackmun]] drafted a preliminary opinion that emphasized what he saw as the Texas law's vagueness.<ref>Schwartz, Bernard. ''[http://books.google.com/books?vid=ISBN0195053176&id=gUMrsFFZtrQC&pg=PA103&lpg=PA103&ots=QNkrOUc9-w&dq=%22under+constitutional+attack+here+are+abortion+laws+of+the+state+of+texas%22&num=100&sig=5RHH8d8rM4Jae98JFRUSiaoelyw The Unpublished Opinions of the Burger Court]'', page 103 (1988 Oxford University Press), via Google Books. Retrieved [[2007-01-26]]</ref> [[Justices]] [[William Rehnquist]] and [[Lewis F. Powell, Jr.]] joined the Supreme Court too late to hear the first round of arguments. Therefore, [[Chief Justice of the Supreme Court|Chief Justice]] [[Warren Burger]] proposed that the case be reargued; this took place on [[October 11]], [[1972]]. Weddington continued to represent ''Roe'', and Texas Assistant Attorney General Robert C. Flowers stepped in to replace Wade. Justice [[William O. Douglas]] threatened to write a dissent from the reargument order, but was coaxed out of the action by his colleagues, and his dissent was merely mentioned in the reargument order without further statement or opinion.<ref> Garrow David. ''[http://books.google.com/books?vid=ISBN0520213025&id=DImjEIIZTgsC&pg=RA1-PA556&lpg=RA1-PA556&ots=Ng2D1dc3NC&dq=%22roe+v.+Wade%22+and+%22reargument%22+and+douglas&sig=bs7xA5pB9jgwsOyOAW7X9idJ-v0 Liberty and Sexuality: The Right to Privacy and the Making of Roe V. Wade]'' (Univ. of Calif. 1998), p. 556. Retrieved [[2007-01-30]]</ref> ==Supreme Court decision== [[Image:Blackmun.jpg|thumb|left|150px|[[Harry Blackmun]] wrote the Court’s opinion.]] The court issued its decision on [[January 22]], [[1973]], with a 7 to 2 majority voting to strike down Texas abortion laws. Burger and Douglas' concurring opinion and White's dissenting opinion were issued separately, in the companion case of ''[[Doe v. Bolton]]''. The ''Roe'' Court deemed abortion a [[fundamental right]] under the [[United States Constitution]], thereby subjecting all laws attempting to restrict it to the standard of [[strict scrutiny]]. Although abortion is still considered a fundamental right, subsequent cases, notably ''[[Planned Parenthood v. Casey]]'', ''[[Stenberg v. Carhart]]'', and ''[[Gonzales v. Carhart]]'' have affected the legal standard. The opinion of the ''Roe'' Court, written by Justice [[Harry Blackmun]], declined to adopt the district court's [[Ninth Amendment to the United States Constitution|Ninth Amendment]] rationale, and instead asserted that the "[[right of privacy]], whether it be founded in the [[Fourteenth Amendment to the United States Constitution|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." Douglas, in his concurring opinion from the companion case ''[[Doe v. Bolton]]'', stated more emphatically that, "The Ninth Amendment obviously does not create federally enforceable rights." Thus, the ''Roe'' majority rested its opinion squarely on the Constitution's [[due process clause]]. According to the ''Roe'' Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." [[Abortion in the United States#Abortion before Roe|Abortion before ''Roe'']] had been subject to criminal statutes since at least the nineteenth century.<ref>Cole, George; Frankowski, Stanislaw. ''[http://books.google.com/books?id=-ujuOMTNAQAC&pg=PA20&dq=quickening+and+abortion+and+states&ei=u4_7R7P4J5XOywSnzu3JBA&sig=_94hQXPrYdnIuox3681ca1grp8g Abortion and protection of the human fetus : legal problems in a cross-cultural perspective]'', page 20 (1987): "By 1900 every state in the Union had an anti-abortion prohibition." Via Google Books. Retrieved ([[2008-04-08]]).</ref> Section VI of Blackmun's opinion was devoted to an analysis of historical attitudes, including those of the [[Persia|Persian Empire]], [[Ancient Greece|Greek times]], the [[Roman era]], the [[Hippocratic oath]], the [[common law]], English [[statutory law]], American law, the [[American Medical Association]], the [[American Public Health Association]], and the [[American Bar Association]]. Without finding what it deemed a sufficient historical basis to justify the Texas statute, the Court identified three possible justifications in Section VII of the opinion to explain the criminalization of abortion: (1) women who can receive an abortion are more likely to engage in "illicit sexual conduct"; (2) the medical procedure was extremely risky prior to the development of [[antibiotic]]s and, even with modern medical techniques, is still risky in late stages of pregnancy; and (3) the state has an interest in protecting prenatal life. To the first, Blackmun wrote that "no court or commentator has taken the argument seriously" and the statute failed to "distinguish between married and unwed mothers"; according to the Court, the second and third constitute valid state interests. In Section X, the Court reiterated, "[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman ... and that it has still another important and legitimate interest in protecting the potentiality of human life." Although the Constitution does not explicitly mention any right of privacy, the Court had previously found support for various privacy rights in several provisions of the [[Bill of Rights]] and the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]], as well as in the "[[penumbra]]" of the Bill of Rights. But instead of relying upon the Bill of Rights or "penumbras, formed by emanations", as the Court had done in ''[[Griswold v. Connecticut]]'', the ''Roe'' Court relied on a "right of privacy" that it said was located in the due process clause of the Constitution. The Court determined that "arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive", and declared, "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation." When weighing the competing interests that the Court had identified, Blackmun also asserted that if the [[fetus]] was defined as a person for purposes of the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]] then the fetus would have a specific [[right to life]] under that Amendment. The Court majority determined that the [[original intent]] of the Constitution (up to the enactment of the Fourteenth Amendment in 1868) did not include the unborn. However, the Court did not specifically determine the question of whether or not a fetus is a person, noting that the matter remains undecided. The Court's determination of whether a fetus can enjoy constitutional protection was separate from the notion of when life begins: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of [[medicine]], [[philosophy]], and [[theology]] are unable to arrive at any consensus, the [[judiciary]], at this point in the development of man's knowledge, is not in a position to speculate as to the answer." The Court only believed itself positioned to resolve the question of when a right to abortion begins. The decision established a system of [[trimester]]s that attempted to balance the state's legitimate interests against the abortion right. The Court ruled that the state cannot restrict a woman's right to an abortion during the first trimester, the state can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health", and the state can choose to restrict or [[proscription|proscribe]] abortion as it sees fit during the third trimester when the fetus is viable ("except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother"). ===Justiciability=== An aspect of the decision that attracted comparatively little attention was the Court's disposition of the issues of [[Standing (law)|standing]] and [[mootness]]. The Supreme Court does not issue [[advisory opinion]]s (those stating what the law would be in some hypothetical circumstance). Instead, there must be an actual "[[case or controversy]]", including particularly a plaintiff who is aggrieved and seeks relief. In the ''Roe'' case, "Jane Roe", who began the litigation in March 1970, had already given birth by the time the case was argued before the Supreme Court in December 1971. By the traditional rules, therefore, there was an argument that Roe's appeal was moot because she would not be affected by the ruling, and also because she lacked standing to assert the rights of other pregnant women.<ref>Abernathy, M. et al., ''[http://books.google.com/books?vid=ISBN0872498549&id=tHhlYpWokFIC&pg=RA1-PA4&lpg=RA1-PA4&ots=OeQSTLp91C&dq=standing+and+mootness+and+%22roe+v.+wade%22&num=100&sig=gfDTMq-LyUVI-lg8tNreUQFjX6c Civil Liberties Under the Constitution]'' (U. South Carolina 1993), page 4. Retrieved [[2007-02-04]].</ref> The Court concluded that the case came within an established exception to the rule; one that allowed consideration of an issue that was "capable of repetition, yet evading [[judicial review|review]]." This phrase had been coined in 1911 by Justice [[Joseph McKenna]].<ref>''Southern Pacific v. Interstate Commerce Commission'', [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=219&invol=498 219 U.S. 498] (1911). Findlaw.com. Retrieved [[2007-01-26]]</ref> Blackmun's opinion quoted McKenna, and noted that pregnancy would normally conclude more quickly than an appellate process: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied." == Dissents == [[Image:Justice White Official.jpg|thumb|right|150px|[[Byron White]] was the senior dissenting justice.]] Associate Justices [[Byron R. White]] and [[William H. Rehnquist]] wrote emphatic dissenting opinions in this case. Justice White wrote: {{cquote|I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.<ref name="Doe"/>}} White asserted that the Court "values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries." Despite White suggesting he "might agree" with the Court's values and priorities, he wrote that he saw "no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States." White criticized the Court for involving itself in this issue by creating "a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it." He would have left this issue, for the most part, "with the people and to the political processes the people have devised to govern their affairs." Rehnquist elaborated upon several of White's points, by asserting that the Court's historical analysis was flawed: {{cquote|To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.<ref name="Roe"/>}} From this historical record, Rehnquist concluded that, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." Therefore, in his view, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter." ==Controversy== A criticism of ''Roe v. Wade'' (though not one made by the dissenting Justices in the case) is that the majority opinion failed to adequately recognize the [[inviolability]] and [[person]]hood of embryonic/fetal human life. Some pro-life supporters argue that life begins at [[fertilisation|conception]] (also called "fertilization"), and thus the fetus should be entitled to legal protection. Other pro-life supporters argue that, in the absence of definite knowledge of when life begins, it is best to avoid the risk of doing harm.<ref>Reagan, Ronald. ''[http://www.worldcatlibraries.org/oclc/10456929?tab=holdings Abortion and the Conscience of the Nation]'', (Nelson 1984): "If you don't know whether a body is alive or dead, you would never bury it. I think this consideration itself should be enough for all of us to insist on protecting the unborn." Retrieved [[2007-01-26]]</ref> While a [[Abortion in the United States#By trimester of pregnancy|majority of Americans believe]] that abortions performed in the first trimester should generally be legal, a majority also believe that second trimester abortions should generally be illegal.<ref name="Rubin">Rubin, Allisa. "[http://pqasb.pqarchiver.com/latimes/access/55304043.html?dids=55304043:55304043&FMT=ABS&FMTS=ABS:FT&type=current&date=Jun+18%2C+2000&author=ALISSA+J.+RUBIN&pub=Los+Angeles&edition=&startpage=1&desc=Americans+Narrowing+Support+for+Abortion Americans Narrowing Support for Abortion]," ''Los Angeles Times'' ([[2000-06-18]]). Retrieved [[2007-02-02]]. ("In The Times Poll, 65% of respondents said abortions in the second trimester should not be legal. Female respondents feel more strongly about the issue: 72% believe second-trimester abortions should be illegal, compared with 58% of men.")</ref> Every year on the anniversary of the decision, tens of thousands of pro-life protesters demonstrate outside the Supreme Court Building in [[Washington, D.C.]] in the [[March for Life]]. Supporters describe Roe as vital to preservation of [[women's rights]], personal freedom, and privacy. Opponents of ''Roe'' have objected that the decision lacks a valid Constitutional foundation. Like the dissenters in ''Roe'', they have maintained that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the [[democracy|democratic]] process, rather than through an all-encompassing ruling from the Supreme Court. Supporters of ''Roe'' contend that the decision has a valid constitutional foundation, or contend that justification for the result in ''Roe'' could be found in the Constitution but not in the articles referenced in the decision.<ref>''[http://books.google.com/books?vid=ISBN0814799183&id=Us-277i9ZJYC&pg=PP1&lpg=PP1&ots=P3h5hDqS1u&dq=%22what+roe+v.+wade+should+have+said%22&num=100&sig=gJ9jX7_d2MOXAkvWRgkwiDYImPs What Roe v. Wade Should Have Said; The Nation’s Top Legal Experts Rewrite America’s Most Controversial decision]'', Jack Balkin Ed. (NYU Press 2005). Retrieved [[2007-01-26]]</ref> In response to ''Roe v. Wade'', most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring [[parental consent]] for minors to obtain abortions, parental notification laws, spousal mutual consent laws, [[Paternal rights and abortion|spousal notification]] laws, laws requiring abortions to be performed in hospitals but not clinics, laws barring state funding for abortions, laws banning abortions utilizing [[intact dilation and extraction]] procedures (often referred to as partial-birth abortion), laws requiring waiting periods before abortion, or laws mandating women read certain types of literature before choosing an abortion.<ref>Guttmacher Institute, "[http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf State Policies in Brief, An Overview of Abortion Laws (PDF)]", published [[2007-01-01]]. Retrieved [[2007-01-26]].</ref> Congress in 1976 passed the [[Hyde Amendment]], barring federal funding of abortions for poor women through the [[Medicaid]] program. The Supreme Court struck down several state restrictions on abortions in a long series of cases stretching from the mid-1970s to the late 1980s, but upheld restrictions on funding, including the Hyde Amendment, in the case of ''[[Harris v. McRae]]'' (1980).<ref>''Harris v. McRae'', [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=448&invol=297 448 U.S. 297] (1980). Findlaw.com. Retrieved [[2007-01-26]].</ref> The most prominent organized groups that mobilized in response to ''Roe'' are the [[NARAL Pro-Choice America|National Abortion Rights Action League]] on the pro-choice side, and the [[National Right to Life Committee]] on the pro-life side. During his life, Harry Blackmun, author of the ''Roe'' opinion, was a determined advocate for the decision. Others have joined him in support of ''Roe'', including [[Judith Jarvis Thomson]], who before the decision had offered an influential defense of abortion.<ref>Thomson, Judith. "[[A Defense of Abortion]]," in ''Philosophy and Public Affairs'', vol. 1, no. 1 (1971), pp. 47–66.</ref> ''Roe'' remains controversial; [[Abortion in the United States#Public opinion|polls]] show continued division about its landmark rulings, and about the decision as a whole. ===Internal memoranda=== Internal Supreme Court memoranda surfaced in the [[Library of Congress]] in 1988, among the personal papers of Douglas and other Justices, showing the private discussions of the Justices on the case. Blackmun said of the majority decision he authored, "You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary."<ref>Woodward, Bob. "[http://swiss.csail.mit.edu/~rauch/nvp/roe/woodward.html The Abortion Papers]", ''Washington Post'' ([[1989-01-22]]). Retrieved [[2007-02-03]].</ref> Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to the state legislatures, though he joined Blackmun's decision.<ref>Kmiec, Douglas. "[http://members.aol.com/abtrbng2/roememos.txt Testimony Before Subcommittee on the Constitution, Judiciary Committee, U.S. House of Representatives]" ([[1996-04-22]]), via the "Abortion Law Homepage". Retrieved [[2007-01-23]].</ref> The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the Court's decision.<ref>Bush, George Walker. Quoted in ''Boston Globe'', p. A12 ([[2000-01-22]]). "Roe v. Wade was wrong because it 'usurped the power of the legislatures,' Bush said. 'I felt like it was a case where the court took the place of what legislatures should do in America,' he said. But Bush refused to say how he felt each state should act. Instead, he said that when it comes to legalizing abortion, 'it should be up to each legislature.'" Retrieved [[2007-02-02]].</ref> The "viability" criterion, which Blackmun acknowledged was arbitrary, is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.<ref>Stith, Irene. ''[http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/95-1101_SPR.pdf Abortion Procedures, CRS Report for Congress (PDF)]'' ([[1997-11-17]]). Retrieved [[2007-02-02]].</ref> ===Legal criticisms by liberal scholars=== [[Modern liberalism in the United States|Liberal]] and [[feminist]] legal scholars have had various reactions to ''Roe''. One reaction has been to argue that Justice Blackmun reached the correct result but went about it the wrong way.<ref>[[Jack Balkin|Balkin, Jack]]. [http://www.yalelawjournal.org/pdf/110-8/balkin.pdf Bush v. "Gore and the Boundary Between Law and Politics"], 110 ''Yale Law Journal'' 1407 (2001): "Liberal and feminist legal scholars have spent decades showing that the result was correct even if Justice Blackmun’s opinion seems to have been taken from the Court’s [[cubism|Cubist]] period." Other feminists have criticized the result of ''Roe'', from the perspective of [[pro-life feminism]].</ref> Another reaction has been to argue that the ends achieved by ''Roe'' do not justify the means.<ref>[[Richard Cohen (Washington Post columnist)|Cohen, Richard]]. [http://www.washingtonpost.com/wp-dyn/content/article/2005/10/19/AR2005101901974.html "Support Choice, Not Roe",] ''Washington Post'', ([[2005-10-19]]): "If the best we can say for it is that the end justifies the means, then we have not only lost the argument — but a bit of our soul as well." Retrieved [[2007-01-23]].</ref> [[William Saletan]] has written that "Blackmun’s [Supreme Court] papers vindicate every indictment of ''Roe'': invention, overreach, arbitrariness, textual indifference."<ref>Saletan, William. [http://www.legalaffairs.org/issues/May-June-2005/feature_saleton_mayjun05.msp "Unbecoming Justice Blackmun",] ''Legal Affairs'', May/June 2005. Retrieved [[2007-01-23]]. Saletan is a self-described liberal. See Saletan, William. [http://www.slate.com/id/2170311/ "Rights and Wrongs: Liberals, progressives, and biotechnology"], ''Slate'' ([[2007-07-13]]).</ref> In a 1973 article in the ''[[Yale Law Journal]]'', Professor [[John Hart Ely]] criticized ''Roe'' as a decision which "is not [[constitutional law]] and gives almost no sense of an obligation to try to be."<ref>Ely, John Hart. "[http://www.timothypcarney.com/wages-wolf.htm The Wages of Crying Wolf]", ''Yale Law Journal'' 1973. Retrieved [[2007-01-23]]. Professor Ely "supported the availability of abortion as a matter of policy." See Liptak, Adam. [http://query.nytimes.com/gst/fullpage.html?res=9502E2DF1131F934A15753C1A9659C8B63 "John Hart Ely, a Constitutional Scholar, Is Dead at 64"], ''New York Times'' ([[2003-10-27]]). Ely is generally regarded as having been a “liberal constitutional scholar.” Perry, Michael. ''[http://books.google.com/books?id=ka8ajkxQWxkC&pg=PA151&lpg=PA151&dq=%22john+hart+ely%22+and+%22liberal+constitutional%22&source=web&ots=m42MG-AWf7&sig=zU_X7SF9Yt2AtyyUJLcxFSJARdc We the People: The Fourteenth Amendment and the Supreme Court]'' (1999) via Google books.</ref> Ely added: "What is frightening about ''Roe'' is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure." Similarly, Harvard law professor [[Laurence Tribe]] has noted that, "One of the most curious things about ''Roe'' is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."<ref>Tribe, Laurence. "The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law", 87 ''Harv. L. Rev.'' 1, 7 (1973). Quoted in Morgan, "[http://links.jstor.org/sici?sici=0026-2234(197908)77%3A7%3C1724%3ARVWATL%3E2.0.CO%3B2-6 Roe v. Wade and the Lesson of the Pre-Roe Case Law]", ''Michigan Law Review'', Vol. 77, No. 7, Symposium on the Law and Politics of Abortion (Aug., 1979), p. 1724, via JSTOR (see bottom of first page of Morgan's article). Retrieved [[2007-01-26]].</ref> [[Watergate scandal|Watergate]] prosecutor [[Archibald Cox]] wrote: "[Roe’s] failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations.... Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."<ref>Cox, Archibald. ''[http://books.google.com/books?vid=OCLC02023076&id=ZrYdAAAAMAAJ&q=%22failure+to+confront+the+issue+in+principled+terms+leaves+the+opinion+to+read+like+a+set+of+hospital+rules%22&dq=%22failure+to+confront+the+issue+in+principled+terms+leaves+the+opinion+to+read+like+a+set+of+hospital+rules%22&pgis=1 The Role of the Supreme Court in American Government]'', 113–114 (Oxford U. Press 1976), via Google Books. Retrieved [[2007-01-26]]. Stuart Taylor has noted that, "Roe v. Wade was sort of conjured up out of very general phrases and was recorded, even by most liberal scholars like Archibald Cox at the time, John Harvey Link - just to name two Harvard scholars - as kind of made-up constitutional law.” See [[Stuart Taylor Jr.]], [http://www.pbs.org/newshour/bb/law/july-dec00/scotus_7-13.html Online News Hour], ''PBS'' [[2000-07-13]].</ref> [[Ruth Bader Ginsburg]] has criticized the Court's ruling in ''Roe v. Wade'' for terminating a nascent democratic movement to liberalize [[abortion law]].<ref>Ginsburg, Ruth. "[http://www.blogdenovo.org/archives/63_N_C_L_Rev_375.doc Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade]", 63 ''North Carolina Law Review'' 375 (1985): "The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." Retrieved [[2007-01-23]].</ref> Likewise, legal affairs editor [[Jeffrey Rosen]]<ref> Rosen, Jeffrey. "[http://www.tnr.com/doc.mhtml?i=20030224&s=rosen022403 Why We’d Be Better off Without Roe: Worst Choice]", ''The New Republic'' ([[2003-02-24]]): “In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized ''Roe'' on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.” Retrieved [[2007-01-23]].</ref> and [[Michael Kinsley]]<ref>Kinsley, Michael. "[http://www.holysmoke.org/sdhok/abo009.htm Bad choice]", ''The New Republic'' ([[2004-06-13]]): "Against all odds (and, I'm afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court....[A] freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami." Retrieved [[2007-01-23]].</ref> say that a democratic movement would have been the correct way to build a more durable consensus in support of abortion rights. Legal analyst Benjamin Wittes has written that ''Roe'' "disenfranchised millions of [[conservative]]s on an issue about which they care deeply".<ref>Wittes, Benjamin. "[http://www.theatlantic.com/doc/200501/wittes Letting Go of Roe]", ''The Atlantic Monthly'', Jan/Feb 2005. Retrieved [[2007-01-23]]. Wittes also said, "I generally favor permissive abortion laws." Wittes has elsewhere noted that, "In their quieter moments many liberal scholars recognize that the decision is a mess." See Wittes, Benjamin. [http://www.tnr.com/politics/story.html?id=30f9cb45-53e4-4e16-b447-968c6ea52e2a "A Little Less Conversation"], ''The New Republic'' [[2007-11-29]]</ref> [[Edward Lazarus]], a former Blackmun clerk who "loved Roe’s author like a grandfather" wrote: "As a matter of constitutional interpretation and judicial method, ''Roe'' borders on the indefensible....Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since ''Roe''’s announcement, no one has produced a convincing defense of ''Roe'' on its own terms."<ref>Lazarus, Edward. "[http://writ.corporate.findlaw.com/lazarus/20021003.html The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them]", ''Findlaw's Writ'' ([[2002-10-03]]). Retrieved [[2007-01-23]].</ref> Liberal law professors [[Alan Dershowitz]],<ref>Dershowitz, Alan. ''Supreme Injustice: How the High Court Hijacked Election 2000'' (Oxford U. Press 2001): “Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)....” quoted by Green, "[http://books.google.com/books?vid=ISBN0791465357&id=JW9LdM2nxsQC&pg=RA1-PA14&lpg=RA1-PA14&ots=4wuLrvhbC6&dq=%22mandate+to+decide+between+equally+compelling+moral+claims+%22&num=100&sig=Iy0u7HkWYpVQ7Uvjb9g1g6f7dAE Bushed and Gored: A Brief Review of Initial Literature]", in ''The Final Arbiter: The Consequences of Bush V. Gore for Law And Politics'', ed. Banks C, Cohen D & Green J., editors, page 14 (SUNY Press 2005), via Google Books. Retrieved [[2007-01-26]].</ref> [[Cass Sunstein]],<ref>Sunstein, Cass. Quoted by McGuire, ''[http://www.nysun.com/article/23046 New York Sun]'' ([[2005-11-15]]): "What I think is that it just doesn't have the stable status of Brown or Miranda because it's been under internal and external assault pretty much from the beginning....As a constitutional matter, I think Roe was way overreached.” Retrieved [[2007-01-23]]. Sunstein is a "liberal constitutional scholar." See Herman, Eric. [http://findarticles.com/p/articles/mi_qn4155/is_20050711/ai_n14852520 "Former U of C law prof on everyone's short court list"], ''Chicago Sun-Times'' ([[2005-07-11]]).</ref> and [[Kermit Roosevelt III|Kermit Roosevelt]]<ref>Roosevelt, Kermit. "[http://pqasb.pqarchiver.com/washingtonpost/access/279325011.html?dids=279325011:279325011&FMT=ABS&FMTS=ABS:FT&fmac=&date=Jan+22%2C+2003&author=Kermit+Roosevelt&desc=Shaky+Basis+for+a+Constitutional+%27Right%27 Shaky Basis for a Constitutional ‘Right’]", ''Washington Post'', ([[2003-01-22]]): "[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result….This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entited to the protection of the 14th Amendment....By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values." Retrieved [[2007-01-23]].</ref> have also expressed disappointment with ''Roe''. ==Public opinion== {{see also|Abortion in the United States#Public opinion|l1=U.S. Polls on Abortion}} An October 2007 [[Harris Interactive|Harris]] poll on ''Roe v. Wade'', asked the following question: {{cquote|In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?<ref name="Lowest">Harris Interactive, ([[2007-11-09]]). "[http://www.harrisinteractive.com/harris_poll/index.asp?PID=830 Support for Roe v. Wade Increases Significantly, Reaches Highest Level in Nine Years]." Retrieved [[2007-12-14]].</ref>}} In reply, 56 percent of respondents indicated favor while 40 percent indicated opposition. The Harris organization concluded from this poll that "56 percent now favors the U.S. Supreme Court decision". Pro-life activists have disputed whether the Harris poll question is a valid measure of public opinion about Roe's overall decision, because the question focuses only on the first three months of pregnancy.<ref>Franz, Wanda. [http://www.nrlc.org/news/2007/NRL06/PresidentColumn.html "The Continuing Confusion About Roe v. Wade"], ''NRL News'' (June 2007).</ref> <ref>Adamek, Raymond. [http://links.jstor.org/sici?sici=0033-362X%28197823%2942%3A3%3C411%3AAP%3E2.0.CO%3B2-5&size=LARGE&origin=JSTOR-enlargePage "Abortion Polls"], ''[[Public Opinion Quarterly]]'', Vol. 42, No. 3 (Autumn, 1978), pp. 411-413. Dr. Adamek is pro-life. [http://www.prolifetechnology.org/proceedings/2004/bio/adamek.html Dr Raymond J Adamek, PhD] ''Pro-Life Science and Technology Symposium.''</ref> The Harris poll has tracked public opinion about ''Roe'' since 1973:<ref> Harris Interactive. [http://online.wsj.com/public/resources/documents/info-harris0503.html 'U.S. Attitudes Toward Roe v. Wade".] ''The Wall Street Journal Online'', ([[2006-05-04]]). Retrieved [[2007-02-03]].</ref> {| align="center" class="wikitable" style="margin: 1em auto 1em auto" |- ! Years !! 1973 !! 1976 !! 1979 !! 1981 !! 1985 !! 1989 !! 1991 !! 1992 !! 1993 !! 1996 !! 1998 !! 2005 !! 2006 !! 2007 |- ! Support for ''Roe'' as compared to 1973 | +0%|| +7% || +8% || +4%|| -2%|| +7% || +13%|| +9% || +4% || +0%|| +5%|| +0%|| -3%|| +4% |- ! Opposition to ''Roe'' as compared to 1973 | +0%|| -14% || -5% || -1%|| +5%|| -5% || -9%|| -7% || +0% || -1%|| -1%|| +5%|| +5%|| -2% |} ==Role in subsequent decisions and politics== [[Image:Roe v. Wade Headline 1973.jpg|thumb|right|320px|''[[The New York Times]]'' cover page from January 23, 1973. President [[Lyndon B. Johnson]] died the same day as the ''Roe'' decision.]] The ''Roe'' decision was opposed by Presidents [[Gerald Ford]], <ref>Ford, Gerald. [http://www.presidency.ucsb.edu/ws/print.php?pid=6320 Letter to the Archbishop of Cincinnati], published online by The American Presidency Project. Santa Barbara, CA: University of California ([[1976-09-10]]).</ref> [[Ronald Reagan]],<ref>Reagan, Ronald. [[wikiquote:Ronald Reagan#Abortion and the Conscience of the Nation .281983.29|Abortion and the Conscience of the Nation]] (Nelson 1984).</ref> [[George H.W. Bush]],<ref>Bush, George Herbert Walker. [http://www.presidency.ucsb.edu/ws/index.php?pid=16617 Remarks to Participants in the March for Life Rally] ([[1989-01-23]]).</ref> and [[George W. Bush]].<ref>Bush, George Walker. "[http://graphics.boston.com/news/politics/campaign2000/news/Bush_tells_addicts_he_can_identify+.shtml Bush Tells Addicts He Can Identify]," ''Boston Globe'', p. A12 ([[2000-01-22]]).</ref> It was supported by Presidents [[Jimmy Carter]]<ref>Carter, James Earl. ''Larry King Live'', CNN, [http://transcripts.cnn.com/TRANSCRIPTS/0602/01/lkl.02.html Interview With Jimmy Carter] ([[2006-02-01]]). Also see [[Peter Bourne|Bourne, Peter]], ''Jimmy Carter: A Comprehensive Biography from Plains to Postpresidency'': "Early in his term as governor, Carter had strongly supported family planning programs including abortion. He had written the foreword to a book, Women in Need, that favored a woman's right to abortion. He had given private encouragement to the plaintiffs in a lawsuit, Doe v. Bolton, filed against the state of Georgia to overturn its archaic abortion laws."</ref> and [[Bill Clinton]].<ref>Clinton, Bill. ''[[My Life (Bill Clinton autobiography)|My Life]]'', page 229 (Knopf 2004).</ref> [[Richard Nixon]] did not publicly comment about it.<ref>Reeves, Richard. ''[http://books.google.com/books?id=AdBdPvGxdaIC&pg=PA563&ots=Madx6Gi5dp&dq=%22Nixon%22+and+roe+and+%22oval+office%22&sig=pk1CjRjNuGga9QEiNRWH003kK20 President Nixon: Alone in the White House]'', page 563 (2001): "The President did not comment directly on the decision."</ref> Opposition to ''Roe'' on the bench grew when [[President of the United States|President]] Reagan &mdash; who supported legislative restrictions on abortion &mdash; made federal judicial appointments. Reagan denied that there was any [[litmus test (politics)|litmus test]]: "I have never given a litmus test to anyone that I have appointed to the bench…. I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We've had too many examples in recent years of courts and judges legislating."<ref>Reagan, Ronald. ''[http://www.reagan.utexas.edu/archives/speeches/1986/62386e.htm Interview With Eleanor Clift, Jack Nelson, and Joel Havemann of the Los Angeles Times]'' ([[1986-06-23]]). Retrieved [[2007-01-23]].</ref> In addition to White and Rehnquist, Reagan appointee [[Sandra Day O'Connor]] began dissenting from the Court's abortion cases, arguing that the trimester-based analysis devised by the ''Roe'' Court was "unworkable."<ref>''Akron v. Akron Center for Reproductive Health Inc.'', [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=462&invol=416 462 U.S. 416] (1983). Findlaw.com. Retrieved [[2007-01-26]].</ref> Shortly before his retirement from the bench, Chief Justice Warren Burger suggested that ''Roe'' be "reexamined";<ref name="Thornburgh">''Thornburgh v. American College of Obstetricians and Gynecologists'', [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=476&invol=747 476 U.S. 747] (1986). Findlaw.com. Retrieved [[2007-02-02]].</ref> the associate justice who filled Burger's place on the Court—Justice [[Antonin Scalia]]—has been a vigorous opponent of ''Roe''. Concern about overturning of ''Roe'' played a major role in the defeat of [[Robert Bork]]'s nomination to the Court; the man eventually appointed to replace ''Roe'' supporter Lewis Powell was [[Anthony M. Kennedy]]. In Canada, its Supreme Court used the rulings in both ''Roe'' and ''[[Doe v. Bolton]]'' as grounds to find Canada's federal law restricting access to abortions unconstitutional in ''[[R. v. Morgentaler]]'' (1 S.C.R. 30) 1988, and to find provisional restrictions on abortion also unconstitutional, ''[[R. v. Morgentaler (1993)]]''. ===''Webster v. Reproductive Health Services''=== In a 5-4 decision in 1989's ''[[Webster v. Reproductive Health Services]]'', Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule ''Roe'', because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution."<ref name="Webster">''Webster v. Reproductive Health Services'', [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=492&page=490 492 U.S. 490] (1989). Findlaw.com. Retrieved [[2007-02-02]].</ref> In this case, the Court upheld several abortion restrictions, and modified the ''Roe'' trimester framework.<ref name="Webster"/> In concurring opinions, O'Connor refused to reconsider ''Roe'', and Justice [[Antonin Scalia]] criticized the Court and O'Connor for not overruling ''Roe''.<ref name="Webster"/> Blackmun &mdash; author of the ''Roe'' opinion &mdash; stated in his dissent that White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their [[plurality]] opinion "foments disregard for the law."<ref name="Webster"/> White had recently opined that Blackmun was "warped."<ref name="Thornburgh"/> ===''Planned Parenthood v. Casey''=== With the retirement of ''Roe'' supporters [[William J. Brennan]] and [[Thurgood Marshall]], and their replacement by [[David Souter]] and [[Clarence Thomas]], pro-choice advocates viewed ''Roe'' for the first time as being in danger.<ref>Wattleton, Faye. [http://a255.g.akamaitech.net/7/255/2422/19sep20050805/www.gpoaccess.gov/congress/senate/judiciary/sh102-1084pt2/533-541.pdf Testimony before the Senate Judiciary committee on the nomination of Clarence Thomas to the United States Supreme Court (PDF)] ([[1991-09-19]]). Retrieved [[2007-02-02]].</ref> During the confirmation hearings of David Souter, [[National Organization for Women|NOW]] president [[Molly Yard]] declared that confirming Souter would mean "ending freedom for women in this country."<ref>Yard, Molly. Quoted in Kamen, "[http://www.washingtonpost.com/wp-dyn/content/article/2005/09/18/AR2005091801188.html For Liberals, Easy Does it With Roberts]", ''Washington Post'' ([[2005-09-19]]). Retrieved [[2007-01-23]].</ref> According to [[National Public Radio|NPR]], in deliberations for ''[[Planned Parenthood v. Casey]]'' (1992), an initial majority of five Justices that would have overturned ''Roe'' foundered when [[Anthony Kennedy|Justice Kennedy]] switched sides.<ref>Totenberg, Nina. "[http://www.npr.org/templates/story/story.php?storyId=1745254 Documents Reveal Battle to Preserve 'Roe'; Court Nearly Reversed Abortion Ruling, Blackmun Papers Show]", ''NPR's Morning Edition'' ([[2004-03-04]]). Retrieved [[2007-01-30]].</ref> O'Connor, Kennedy, and Souter joined Blackmun and Stevens to reaffirm the central holding of ''Roe'', saying, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."<ref name="Casey">''Planned Parenthood of Southeastern Pa. v. Casey'', [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=505&page=833 505 U.S. 833] (1992). Retrieved [[2007-02-03]].</ref> Rehnquist and Scalia signed each others' dissenting opinions; White and Thomas signed those dissenting opinions as well. Scalia's dissent acknowledged that abortion rights are of "great importance to many women", but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed. Scalia concluded: "by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish."<ref name="Casey"/> ===''Stenberg v. Carhart''=== During the 1990s, [[Nebraska]] attempted to ban certain second-trimester abortion procedures sometimes called [[Intact dilation and extraction|partial birth abortions]]. The Nebraska ban allowed other second-trimester abortion procedures called [[dilation and evacuation]] abortions. Ginsburg (who replaced White) stated, "this law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."<ref name="Stenberg">''Stenberg v. Carhart'', [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=530&page=914 530 U.S. 914] (2000). Retrieved [[2007-02-02]].</ref> The Supreme Court struck down the Nebraska ban by a 5-4 vote in ''[[Stenberg v. Carhart]]'' (2000), citing a right to use the safest method of abortion. Kennedy, who had co-authored the 5-4 ''Casey'' decision upholding ''Roe'', was among the dissenters in ''Stenberg'', writing that Nebraska had done nothing unconstitutional.<ref name="Stenberg"/> Kennedy described the second trimester abortion procedure that Nebraska was ''not'' seeking to prohibit: "The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off." Kennedy wrote that since this dilation and evacuation procedure remained available in Nebraska, the state was free to ban the other procedure known as partial birth abortion.<ref name="Stenberg"/> The remaining three dissenters in ''Stenberg'' &mdash; Thomas, Scalia, and Rehnquist &mdash; disagreed again with ''Roe'': "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so." ===''Gonzales v. Carhart''=== In 2003, Congress passed the [[Partial-Birth Abortion Ban Act]], which led to a lawsuit in the case of ''[[Gonzales v. Carhart]]''. The Court had previously ruled in ''[[Stenberg v. Carhart]]'' that a state's ban on partial birth abortion was unconstitutional because such a ban would not allow for the health of the mother. The membership of the Court changed after ''Stenberg'', with [[John G. Roberts|John Roberts]] and [[Samuel Alito]] replacing Rehnquist and O'Connor, respectively. Further, the ban at issue in ''Gonzales v. Carhart'' was a federal statute, rather than a relatively vague state statute as in the ''Stenberg'' case. On [[April 18]], [[2007]], the Supreme Court handed down a 5 to 4 decision upholding the constitutionality of the Partial-Birth Abortion Ban Act. Kennedy wrote for the five-justice majority that Congress was within its power to generally ban the procedure, although the Court left the door open for as-applied challenges. Kennedy's opinion did not reach the question whether the Court's prior decisions in ''Roe v. Wade'', ''Planned Parenthood v. Casey'', and ''Stenberg v. Carhart'' were valid, and instead the Court said that the challenged statute is consistent with those prior decisions whether or not those prior decisions were valid. Joining the majority were Chief Justice [[John G. Roberts|John Roberts]], Scalia, Thomas, and Alito. Ginsburg and the other three justices dissented, contending that the ruling ignored Supreme Court abortion precedent, and also offering an equality-based justification for that abortion precedent. Thomas filed a concurring opinion, joined by Scalia, contending that the Court's prior decisions in ''Roe v. Wade'' and ''Planned Parenthood v. Casey'' should be reversed, and also noting that the Partial-Birth Abortion Ban Act may exceed the powers of Congress under the [[Commerce Clause]]. ===Activities of Norma McCorvey=== [[Norma McCorvey]] became a member of the pro-life movement in 1995; she now supports making abortion illegal. In 1998, she testified to Congress: {{cquote|It was my pseudonym, Jane Roe, which had been used to create the "right" to abortion out of legal thin air. But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15, 20 years later and say, "Thank you for allowing me to have my five or six abortions. Without you, it wouldn't have been possible." Sarah never mentioned women using abortions as a form of birth control. We talked about truly desperate and needy women, not women already wearing maternity clothes.<ref name="testimony">McCorvey, Norma. Testimony to the Senate Subcommittee on the Constitution, Federalism and Property Rights ([[1998-01-21]]), [http://www.parliament.wa.gov.au/hansard/hans35.nsf/(ATT)/A4C48AF367A417A84825661A007776E1/$file/C0520006.PDF quoted in the parliament of Western Australia (PDF)] ([[1998-05-20]]). Retrieved [[2007-01-27]]</ref>}} As a party to the original litigation, she sought to reopen the case in [[United States district court|U.S. District Court]] in Texas to have ''Roe v. Wade'' overturned. However, the [[Fifth Circuit]] decided that her case was moot, in ''[[McCorvey v. Hill]]''.<ref>''McCorvey v. Hill'', [http://caselaw.lp.findlaw.com/data2/circs/5th/0310711p.pdf 385 F3d 846 (PDF)] (5th Cir 2004). Findlaw.com. Retrieved [[2007-01-26]]</ref> In a concurring opinion, Judge [[Edith Jones]] agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development, but Jones said she was compelled to agree that the case was moot. On [[February 22]], [[2005]], the Supreme Court refused to grant a [[certiorari|writ of certiorari]], and McCorvey's appeal ended. ===State abortion bans=== On [[March 6]], [[2006]], hoping to directly challenge ''Roe v. Wade'', [[Governor of South Dakota|South Dakota Governor]] [[Mike Rounds]] signed into law a [[Women's Health and Human Life Protection Act|pro-life statute]] which made performing abortions a [[felony]]. That law was subsequently repealed in a [[referendum]] held on [[November 7]] of the same year.<ref>Myers, Megan. [http://www.commondreams.org/headlines06/1108-02.htm "S.D. rejects abortion ban",] ''Argus Leader'', ([[2006-11-08]]). Retrieved [[2007-01-23]].</ref> On [[February 27]] [[2006]], [[Mississippi]]’s House Public Health Committee voted to approve a ban on abortion, but that bill died after the House and Senate failed to agree on compromise legislation.<ref>MacIntyre, Krystal. "[http://jurist.law.pitt.edu/paperchase/2006/03/mississippi-abortion-ban-bill-fails-as.php Mississippi abortion ban bill fails as legislators miss deadline for compromise]", ''Jurist News Archive'' ([[2006-03-28]]). Retrieved [[2007-01-23]].</ref> Several states have enacted so-called "[[trigger law]]s" which "would take effect if ''Roe v. Wade'' is overturned."<ref>"Blanco signs law that would ban abortions]", ''Reuters'' ([[2006-06-17]]). Retrieved [[2007-03-26]].</ref> Those states include Illinois, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota.<ref name="Vestal">Vestal, Christine. [http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentId=121780 "States probe limits of abortion policy"], Stateline.org ([[2007-06-11]]).</ref> Other states have passed laws to maintain the legality of abortion if ''Roe v. Wade'' is overturned, and those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington.<ref name="Vestal" /> ==See also== * [[List of United States Supreme Court cases, volume 410]] * [[Pro-Choice]] * [[Pro-Life]] ==Footnotes== {{reflist|2}} ==References== *{{cite book |last=Critchlow |first=Donald T. |authorlink=Donald T. Critchlow |title=The Politics of Abortion and Birth Control in Historical Perspective |year=1996 |publisher=Pennsylvania State University Press |location=University Park, PA |isbn=0271015705 }} *{{cite book |last=Critchlow |first=Donald T. |coauthors= |title=Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America |year=1999 |publisher=Oxford University Press |location=New York |isbn=0195046579 }} *{{cite book |last=Garrow |first=David J. |authorlink=David Garrow |coauthors= |title=Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade |year=1994 |publisher=Macmillan |location=New York |isbn=0025427555 }} *{{cite book |last=Hull |first=N.E.H. |authorlink= |coauthors= |title=The Abortion Rights Controversy in America: A Legal Reader |year=2004 |publisher=University of North Carolina Press |location=Chapel Hill |isbn=0807828734 }} *{{cite book |last=Hull |first=N.E.H. |authorlink= |coauthors=Peter Charles Hoffer |title=Roe v. Wade: The Abortion Rights Controversy in American History |year=2001 |publisher=University Press of Kansas |location=Lawrence, KS |isbn=0700611436 }} *{{cite book |last=Mohr |first=James C. |title=Abortion in America: The Origins and Evolution of National Policy, 1800–1900 |year=1979 |publisher=Oxford University Press |location=Oxford |isbn=0195026160 }} *{{cite book |last=Rubin |first=Eva R. [ed.] |title=The Abortion Controversy: A Documentary History |year=1994 |publisher=Greenwood |location=Westport, CT |isbn=0313284768 }} *{{cite book |last=Staggenborg |first=Suzanne |title=The Pro-Choice Movement: Organization and Activism in the Abortion Conflict |year=1994 |publisher=Oxford University Press |location=New York |isbn=0195065964 }} ==External links== {{Spoken Wikipedia|Roe_vs_wade.ogg|2005-07-16}} {{wikisource|Roe v. Wade}} * Full text of opinion with links to cited material ** [http://www.law.cornell.edu/supct-cgi/get-us-cite?410+113 LII] ** [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=410&invol=113 FindLaw] * [http://www.oyez.org/oyez/resource/case/334/argument.mp3 Audio of oral argument at www.oyez.org] * [http://swiss.csail.mit.edu/~rauch/nvp/roe/woodward.html Woodward on Roe vs. Wade: The Abortion Papers] {{featured article}} {{AbortionLaw-horizontal}} [[Category:United States Supreme Court cases]] [[Category:1973 in law]] [[Category:United States abortion case law]] [[Category:History of women's rights in the United States]] [[Category:Substantive due process cases]] [[Category:Privacy law]] [[Category:United States Fourteenth Amendment case law]] {{Link FA|he}} [[cs:Roe vs. Wade]] [[de:Roe v. Wade]] [[es:Roe contra Wade]] [[fa:رو علیه وید]] [[fr:Roe v. Wade]] [[ko:로 대 웨이드 사건]] [[he:פסק דין רו נגד וייד]] [[nl:Roe vs. Wade]] [[ja:ロー対ウェイド事件]] [[no:Roe mot Wade]] [[pl:Roe v. 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