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Wade (1973)
of doctors and hospital officials. While establishing the right to an abortion, this decision gave
states the right to intervene in the second and third trimesters of pregnancy to protect the
woman and the potential life of the unborn child. Denounced by the National Council of
Bishops, the decision gave rise to a vocal antiabortion movement that put pressure on the
courts and created an anti-Roe litmus test for the judicial appointments of the Reagan and Bush
administrations (198193). In a 1989 case, Webster v. Reproductive Health Services, the court,
while not striking down Roe, limited its scope, permitting states greater latitude in regulating and
restricting abortions. Then in 1992, in Planned Parenthood v. Casey, the court reaffirmed the
abortion rights granted in Roe v. Wade, while permitting further restrictions. (Infoplease.com)
Historical Background
Since the Supreme Court's decision in Roe v. Wade, the legal, moral, and political controversy
surrounding the abortion issue has polarized the American public. Two campsone hailing Roe
as a victory for choice, the other arguing that the decision deprives the unborn child of its right
to lifesquared off in the wake of the Court's decision. Their protracted political battle
continues today. The deep political divisions that the case created, or revealed, reflect not only
conflicting social and moral views, but conflicting views of the law as well. The case pitted two
accepted doctrines against one anotherthe individual's right to privacy and the compelling
and overriding interest of a State. Roe v. Wade sought an extension of the right to privacy,
which the Court explicitly recognized for the first time in the case Griswold v. Connecticut, 1965.
In that case, family counselors in Connecticut challenged a State law forbidding the use of any
drug, medicinal article or instrument for the purpose of preventing conception. In Griswold, the
Court decided that there was a right of privacy implied by the Bill of Rights. It ruled that the 1st,
3rd, 4th, 5th, 9th, and 14th Amendments together create a right of marital privacy.
Circumstances of the Case
In Texas, State law prohibited the termination of a pregnancy by artificial means (surgery)
except when the life of the mother was in danger. The statute was construed as a nearly
complete ban on abortion. A Texas woman, claiming privacy as a fundamental right,
challenged the Texas statute. In 1971 the case was argued before the Supreme Court. In 1972
it was argued again. Roe and a companion case from Georgia, Doe v. Bolton, were the first
cases to test, in the Court, the newly recognized right of privacy against the compelling
interest of the States to regulate abortions.
Constitutional Issues
This case involved the right of privacy as implied by Amendments 1, 3, 4, 5, 9, and 14 versus
the police power of the States. Did States have a compelling and overriding interest in
regulating the health, safety, and morals of the community? Was there an area of personal,
marital, familial, and sexual privacy protected by the Bill of Rights? Was the Texas law an
unreasonable invasion of privacy, or was it a reasonable exercise of the police power? Were
women permitted to terminate pregnancies at will, or were fetuses persons with rights to be
protected by the State?
Arguments
For Roe: Under the Bill of Rights, a woman has the right to terminate her pregnancy. It is
improper for a State to deny individuals the personal, marital, familial, and sexual right to
privacy. Moreover, in no case in its history has the Court declared that a fetusa developing
infant in the wombis a person. Therefore, the fetus cannot be said to have any legal right to
life. Because it is unduly intrusive, the Texas law is unconstitutional and should be overturned.
For Wade: The State has a duty to protect prenatal life. Life is present at the moment of
conception. The unborn are people, and as such are entitled to protection under the
Constitution. The Texas law is a valid exercise of police powers reserved to the States in order
to protect the health and safety of citizens, including the unborn. The law is constitutional and
should be upheld.
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potential life could come into existence before the point of viability. The Court emphasized that it
was not revisiting the essential portions of the holding in Roe v. Wade.
that the Act only bans a narrow category of abortion procedures, and that a health exception is
not required when Congress determines that a banned abortion procedure is never necessary
for the health of the mother. The Eighth Circuit disagreed and upheld the District Court, ruling
that a health exception is required for all bans on abortion procedures when "substantial
medical authority" supports the necessity of the procedure. The Circuit Court ruled that the
ongoing disagreement among medical experts over the necessity of intact D&E abortions was
sufficient to establish that the Act was unconstitutional without a health exception. The Circuit
Court did not reach the question of whether the Act was so broad as to qualify as an
unconstitutional "undue burden."
Question:
Is the Partial-Birth Abortion Ban Act of 2003 an unconstitutional violation of personal liberty
protected by the Fifth Amendment because the Act lacks an exception for partial-birth abortions
necessary to protect the health of the mother?
Conclusion:
No. The Court ruled by a 5-4 vote that Congress's ban on partial-birth abortion was not
unconstitutionally vague and did not impose an undue burden on the right to an abortion.
Justice Anthony Kennedy wrote the opinion for the majority. The Court held that, under the most
reasonable interpretation, the Act applies only to the intact D&E method (also known as "partialbirth abortion") and not to the more common D&E procedure. The Act's application was limited
by provisions that restrict enforcement to cases where the physician intends to perform an intact
D&E and delivers the still-living fetus past specific "anatomical landmarks." Because the
majority found that the Act applies only to a specific method of abortion, it held that the ban was
not unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an
abortion. The Court also held that Congress, after finding intact D&E never to be medically
necessary, could validly omit a health exception from the ban, even when "some part of the
medical community" considers the procedure necessary. To require the exception whenever
"medical uncertainty" exists would be "too exacting a standard to impose on the legislative
power [...] to regulate the medical profession." The Court left open the possibility that an asapplied challenge could be brought against the Act if it were ever applied in a situation in which
an intact D&E was necessary to preserve a woman's health. Justice Ginsburg's dissent disputed
the majority's claim that the opinion was consistent with the Casey and Stenberg precedents
and said "The Court's hostility to the right Roe and Casey secured is not concealed."
THE RIGHT to reproductive freedom has played an occasional role in many presidential
campaigns, but its fate is likely to turn on the 2008 election. Republican presidential candidate
John McCain vows to "return the abortion question to the individual states" and then "to end
abortion at the state level." The new president will probably be in a position to appoint at least
one and perhaps as many as three new justices. With an excellent chance to reconfigure the
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Supreme Court, McCain, if elected, might well be able to get what the antiabortion movement
wants - and more fundamentally, numerous changes in other areas of constitutional law as well.
Those who seek to preserve the right to choose ought to be prepared to make some
distinctions. As it was written in 1973, Roe v. Wade was far from a model of legal reasoning, and
conservatives have been correct to criticize it. The court failed to root the abortion right in either
the text of the Constitution or its own precedents.
Moreover, it ruled far too broadly. In its first encounter with the abortion question, the court failed
to focus on the particular abortion restrictions at issue, some of which were unusually draconian,
forbidding abortion even in cases of rape. Instead, the court took the highly unusual step of a
setting out a series of rules for legislatures to follow.
It is no wonder that millions of Americans felt, and continue to feel, that the court refused to treat
their moral convictions with respect. Nor is it surprising that Justice Ruth Bader Ginsburg - the
most important women's rights lawyer in the history of American law, but also a judicial
"minimalist" - has sharply criticized Roe for doing so much so fast.
But it is one thing to object to Roe as written in 1973. It is another to suggest that it should be
overruled in 2008. American constitutional law is stable only because of the principle of stare
decisis, which means that in general, the Court should respect its own precedents.
Roe v. Wade has been established law for 35 years; the right to choose is now a part of our
culture. A decision to overrule it would not only disrupt and polarize the nation; it would also
threaten countless doctors, and pregnant women and girls, with jail sentences and criminal
fines. As Ginsburg has also urged, Roe v. Wade is now best seen, not only as a case about
privacy, but also as involving sex equality.
No one should disparage the convictions of those who believe that abortion is an immoral act.
But after more than three decades, a decision to overrule Roe v. Wade, and to throw an
established domain of human liberty into turmoil, would be anything but conservative. It is
relevant here that many people, including McCain running mate Sarah Palin, believe that
abortion is unacceptable even in cases of rape and incest, and there is little doubt that if Roe is
overruled, some states will enact that belief into law.
For the future of constitutional rights, there is a broader point, which involves the fragility of
many constitutional principles. Of course the Supreme Court tends to move slowly, but some
conservatives who speak of "strict construction," and of "legislating from the bench," have
something quite radical in mind.
For them, these are code words. They seek to appoint judges who will overturn not merely Roe,
but dozens of other past decisions. For example, they want judges to impose flat bans on
affirmative action, to invalidate environmental regulations, to increase presidential power, and to
reduce the separation of church and state. Some Republican appointees to the Supreme Court
have already called for significant changes in constitutional law in these domains.
Does all this sound like "strict construction"? Actually there is an uncomfortably close overlap
between the constitutional views of some recent Republican appointees to the federal judiciary
and the political views of those on the extreme right-wing of the Republican Party. There is a
good chance that a newly constituted Supreme Court would entrench some of those views into
constitutional law.
It is inevitable that the principal debates between McCain and Democratic candidate Barack
Obama will involve the economy and foreign policy. For most voters, the Supreme Court is
simply too abstract. But we should not overlook a crucial point: The fate of Roe v. Wade, and of
countless principles in constitutional law, is now hanging in the balance.
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Cass Sunstein is a professor of law at Harvard Law School and an informal adviser to the
Obama campaign.
Copyright 2009 The New York Times Company
Story Highlights:
35th anniversary of January 22, 1973, Supreme Court decision Roe v. Wade
medical standards, and protecting potential life" are compelling enough to justify regulation "at
some point in pregnancy."
That "qualified right" found its form in the controversial "trimester analysis" laid out by the
justices in Roe: permitting no government regulation during the first three months; allowing
limited regulation in the second trimester to protect women's health and safety; and granting
government the power to ban abortions during the third trimester -- in which medical consensus
has concluded the fetus is capable of living on its own.
After Roe, the high court affirmed the right to abortion in subsequent cases: striking down a
provision requiring a husband's consent for a first-trimester abortion and a provision requiring
parental consent for an unmarried woman under 18; striking down efforts to expand on laws
requiring women to give informed consent before having an abortion; striking down a 24-hour
waiting period; and striking down a law requiring doctors to inform women of the risks and of
assistance available if she completed pregnancy.
But there was one notable victory for anti-abortionist activists: banning use of taxpayer funds to
finance abortions for poor women.
The abortion issue has been revisited several times since Roe, most famously in two cases:
Webster v. Reproductive Health Services (1989) and Planned Parenthood v. Casey (1992).
Webster (a 5-4 decision) upheld major parts of a Missouri abortion law that prohibited use of
public facilities or the participation of public employees in abortions, and required doctors to test
the viability of a fetus before performing an abortion.
Justices William Rehnquist, Byron White and Anthony Kennedy said they would allow
restrictions on abortion, but only if the restrictions had a rational basis. More important, the three
conservative justices said a compelling government interest need not be required to justify
restrictions on abortion. That was a blow for anti-abortion forces.
Then came the Planned Parenthood ruling, in which the justices clearly outlined their views on
Roe. The decision (also 5-4) reaffirmed the heart of Roe while giving states the power to
regulate procedures so long as they did not impose an "undue burden" on a woman's right to
abortion. The standard: Undue burden exists if "the purpose and effect is to place substantial
obstacles in the path of a woman seeking an abortion before the fetus attains viability." The
ruling left supporters on both sides of the issue dissatisfied, feeling it was ambiguous.
Justice Sandra Day O'Connor did not join either opinion, saying there was nothing in it to justify
reconsidering Roe. Nevertheless, Blackmun wrote, "the right to reproductive choice" was in
danger of being overturned.
Another legacy of Roe that remains: The head-counting of justices on the court, a what-if
scenario that could lead to the overturning of Roe. The current 5-4 conservative majority could
shift significantly in either direction if two or more justices leave the bench in the next few years,
as is widely expected.
In the meantime, conservatives in Congress have promised to push for tougher restrictions on
the access to abortion, though many political experts say the goal is not necessarily aimed at
overturning Roe.
They found success last year when the justices in a sharply divided 5-4 ruling upheld a federal
ban on a controversial a late-term procedure, rejecting concerns the law didn't take into account
the physical safety of the mother.
The procedure is typically performed by doctors in the middle to late second trimester. The legal
sticking point was that the law lacked a "health exception" for a woman who might suffer serious
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medical complications, something the justices have said in the past is necessary when
considering abortion restrictions.
The swing vote, as in previous cases, came from Kennedy. In angry dissent, Justice Ruth Bader
Ginsburg, the lone woman on the high court since O'Connor stepped down, called the majority's
conclusions "alarming" and said they "cannot be understood as anything other than an effort to
chip away a right declared again and again by this court, and with increasing comprehension of
its centrality to women's lives."
If there is one last legacy of the Roe decision, it may be that it opened up and expanded the
entire debate on the rights of women, sexuality, health care, and medical decisions. Issues like
cloning, stem cells, and fetal research have become part of the national lexicon. As significant
as it was, Roe v. Wade was only the beginning of the battle.
___________________________________________________________________________
Abortion foes find new climate.(NEWS).Andrea Stone. USA Today (Jan 23,
2009): p.03A. (723 words) From Student Resource Center - Gold.
Full Text: COPYRIGHT 2009 USA Today
Byline: Andrea Stone
WASHINGTON -- Thousands of abortion opponents marched here Thursday on the anniversary
of Roe v. Wade, but for the first time in 14 years, they found themselves out of step with both the
president and the party controlling Congress.
On the 36th anniversary of the Supreme Court decision, Democrats control the White House
and Congress for the first time since 1995. That has given hope to abortion rights activists that
restrictions enacted by President Bush and his Republican allies will be reversed.
Bush routinely sent words of encouragement to the March for Life. President Obama issued a
statement saying he was "committed to protecting a woman's right to choose."
Obama said, "We are reminded that this decision not only protects women's health and
reproductive freedom, but stands for a broader principle: that government should not intrude on
our most private family matters."
Obama promised during his campaign to sign an executive order overturning a rule that denies
U.S. funding to international family-planning groups that provide abortion-related services or
information. He did not act on it Thursday.
"Some may see this brief delay as an 'olive branch' to the hundreds of thousands attending
today's March for Life," said Tony Perkins of the Family Research Council, an advocacy group
for conservative positions. "If this is an olive branch, we'd like to see the olive tree."
"President Obama has demonstrated that he's a strong supporter of reproductive rights and that
he understands that the mere recognition of those rights isn't enough -- we must also ensure
access in order to improve the lives and health of women," said Nancy Northup of the Center for
Reproductive Rights, a legal advocacy group. "The new administration and Congress can take
action to not only reverse Bush's damaging policies, but advance policies that promote access
to reproductive health care and nominate federal judges who will guarantee protection of that
access."
Republican Rep. James Sensenbrenner of Wisconsin rallied the marchers. "For the past few
years, we pro-lifers have had it easy," he told marchers on the National Mall. "That's all
changed."
The former chairman of the House Judiciary Committee urged activists to work at the grass
roots. "It's not going to happen inside the Capital Beltway," he said.
Richard Hennessey, 72, a retired postal worker from Levittown, N.Y., agreed.
"We're all in a quandary. We don't know what (Obama's) going to do," he said, voicing fears that
late-term abortion restrictions and parental-notification laws would be reversed. The solution, he
said, was to follow the example of Obama's career. "We can be just like him," Hennessey said.
"We can be community activists for pro-life candidates."
As the protesters marched up Capitol Hill, they chanted a riff on Obama's campaign slogan:
"Save a life! Yes we can!" One carried a sign showing the new president with a Hitler mustache.
It said, "Impeach Adolf Obama." Another sign implored, "Please Mr. President: Reconsider."
A display of photos along the marchers' route included one of Obama surrounded by photos of
aborted fetuses.
"He's claiming to be a devout Christian, but how can he be when he is all for killing babies?"
asked Jim Brown, 58, of Loysville, Pa., as he led a group of high school students along the
exhibit, which also included a photo of a lynched black man.
Joan McCabe, 67, of Pittsburgh, recalled a remark Obama made last year, when he said he
would not want his daughters "punished with a baby" if they were to make the "mistake" of
becoming pregnant as teenagers. He later said he meant he wanted to prevent teen
pregnancies.
" 'They shouldn't be punished with a baby.' Those were his words," McCabe said. "I'm
concerned more women will wind up having abortions because of the law that he's willing to
change."
Many in the crowd, which included church groups, religious schools and Catholic clergy in nuns'
habits and monks' robes, said they would pray for Obama to have a change of heart.
After 20 anti-abortion marches, Patrick O'Donnell, 60, of Quakertown, Pa., says he still has
faith.
"There are probably more of us down here this year because of the fact that the president is
who he is," said O'Donnell. "It probably has energized those who are standing up for protection
of human life."
Source Citation: Stone, Andrea. "Abortion foes find new climate. (NEWS)." USA Today (Jan 23, 2009): 03A. Student
Resource Center - Gold. Gale. Etiwanda High School Library. 13 May 2009
<http://find.galegroup.com/ips/start.do?prodId=IPS>.
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