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Supreme Court Cases
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1973

Roe v. Wade

In this landmark decision, the Supreme Court ruled that the 14th Amendment implicitly grants a right to an abortion.

Slides

The Case in Brief

History. Abortion had mostly been illegal in the United States through a patchwork of state laws. Norma McCovey (Roe) sued Dallas County District Attorney Henry Wade after unsuccessfully trying to get an illegal abortion since abortion in Texas was only legal to save a mother’s life. 

Case Facts. In order to adjudicate the constitutionality of the Texas abortion law, the Court needs to judge the case with strict scrutiny. Strict scrutiny is the highest standard of review that a court will use to evaluate the constitutionality of governmental discrimination.

Majority Opinion. A woman’s right to an abortion is implied through fundamentalist interpretations — a legal theory of constitutional review — in the right to privacy protected by the 14th Amendment.

Results. The Court created the trimester system. During the first trimester of pregnancy, the decision to terminate is at the mother’s discretion. In the second trimester, the state can regulate acceptable procedures but not outlaw abortions in the interest of the mother’s health. In the third trimester, when the fetus becomes viable, the state can regulate or outlaw abortions in the interest of the potential life except when necessary to preserve the life or health of the mother.

History

Abortion Before Roe. Before to the 1850s, no official law existed outlawing abortion. Most regulation of abortion occurred at the community level, sometimes permitting abortion before “the quickening” when the baby would begin kicking. In the 1850s, the American Medical Association called for the criminalization of abortion in an official law. However, the first official ban came in 1869 when the Catholic Church banned abortion at any stage of pregnancy. In 1873, the United States took its first step towards banning abortion by passing the Comstock law, making it illegal to distribute contraceptives and abortion-inducing drugs through the U.S. mail. Eventually, in the 1880s, abortion was illegal across most of the United States through a patchwork of state laws.

Learn Something New Every Day with Online Video Lessons | Curious.com
(Curious)

Abortion Legalization. The 1960s saw a slew of court cases involving contraceptives stemming from the Women’s Rights Movement. In 1965, the U.S. Supreme Court struck down a law banning the distribution of birth control to married couples, and the Supreme Court struck down a law prohibiting the distribution of contraceptives to unmarried adults in 1972. These cases revolved around the 14th Amendment’s right to privacy, a legal foundation that led to the decision in Roe v. Wade

(The Washington Post)

By 1970, Hawaii became the first state to legalize abortion, shortly followed by New York.

Case Facts

Norma McCovey, a Texas woman in her early 20s, had grown up impoverished and had previously given away two children for adoption. In 1969, she sought an abortion in Texas where the law only permitted abortion for the purpose of saving a mother’s life. 

Norma McCorvey, Who Was at Center of Roe v. Wade Abortion Rights Case ...
(NBC)

After trying unsuccessfully to get an illegal abortion, McCorvey turned to Texas attorneys Linda Coffee and Sarah Weddington, who were interested in challenging anti-abortion laws. For the purpose of anonymity, McCorvey became known as “Jane Roe” in the proceeding court documents. 

She sued the Dallas County district attorney Henry Wade, who was famous for prosecuting the presidential assassin Lee Harvey Oswald. A licensed physician charged with two state abortion prosecutions, Dr. Hallford, was permitted to do an abortion procedure on Roe pending the results of this court case..

In order to adjudicate the constitutionality of the Texas abortion law, the Court needs to just the case with strict scrutiny. Courts often use strict scrutiny when a plaintiff sues the government for discrimination. For a court to apply strict scrutiny, the legislature must either have passed a law that infringes upon a fundamental right or involves a suspect classification. To pass a strict scrutiny test, the legislature must have passed the law to further a “compelling governmental interest” and narrowly tailored the law to achieve that interest.

Strict scrutiny is the highest standard of review that a court will use to evaluate the constitutionality of governmental discrimination.

Majority Opinion

A woman’s right to an abortion is implied through emanations and penumbras in the right to privacy protected by the 14th Amendment.

The state’s abortion ban was illegal because it violated a constitutional right to privacy.

The pregnancy period is divided into three trimesters. During the first trimester of pregnancy, the decision to terminate is at the mother’s discretion. In the second trimester, the state can regulate acceptable procedures but not outlaw abortions in the interest of the mother’s health. In the third trimester, when the fetus becomes viable, the state can regulate or outlaw abortions in the interest of the potential life except when necessary to preserve the life or health of the mother.

Dissenting Opinion

The majority opinion has argued that the 4th Amendment right to privacy encompasses abortion procedures. This is contrary to the intention of the 4th Amendment, which guarantees privacy for unlawful search and seizure of your property, not abortions.

A transaction resulting in a medical operation such as abortion is not “private” according to the Constitution.

The majority opinion is better suited as a law passed by Congress than a decision made by the Court. This decision is an example of legislating from the bench.

Related Cases

Planned Parenthood v. Casey (1992)

(Lemurian Embassy)

The Case. Between 1988 and 1989, Pennsylvania amended the state Abortion Control Act to add measures like informed consent — showing ultrasound images before an abortion — and 24-hour waiting periods with information about alternatives to abortion. Planned Parenthood of Southeastern Pennsylvania filed suit against the state of Pennsylvania, claiming the provisions were unconstitutional and in violation of Roe v. Wade.

The Decision. Although the Supreme Court upheld the Pennsylvania state restrictions in this 1992 case, it reaffirmed the right to an abortion granted in Roe v. Wade. In the 5-4 decision, the Court altered the trimester system to one of fetal viability. Essentially, the Court found that medical advancements could allow states to restrict abortion based on a baby’s ability to survive outside the womb.

Controversy. The decision was surprising given that the Court had a conservative majority. At the time, Justices cited stare decisis on the basis of Roe upholding the right to abortion. The majority wrote, “the woman’s right to terminate her pregnancy before viability is the most central principle of Roe vs. Wade [...] It is a rule of law and a component of liberty we cannot renounce.”

Discussion Questions

  1. Do you think viability is a better standard than trimesters?
  2. Is showing an ultrasound before an abortion a violation of Roe v. Wade?
  3. Why do you think the conservative-leaning Court reaffirmed Roe v. Wade?

Dobbs v. Jackson (2022)

(The Federalist)

The Case. In 2018, Mississippi passed the Gestational Age Act to ban abortion after 15 weeks of pregnancy. The Act states, “except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform… or induce an abortion of an unborn human being [after] 15 weeks.” Jackson Women’s Health Organization sued, saying the law violated the decisions in Roe and Casey.

Overturned. In a 6-3 decision, the Court found that, “on the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress.” They overturned the decision of Roe — and therefore Casey — and returned the decision of abortions to the legislature.

Controversy. Before the decision was published, the decision was leaked to the public. Being the first time a decision was leaked in the history of the United States, many argued it was a demonstration of strong feelings about abortion. Many Left-leaning activists began protests — including outside the homes of Justices — as Republicans called the leak an attempt to intimidate the Court.

Impact. The effect of the Dobbs decision is that the issue of abortion will be the responsibility of elected representatives rather than the Court. Each state will enact its own laws regarding abortion, provided Congress does not impose national standards.

Discussion Questions

  1. Is the question of abortion a political question?
  2. Should the decision of abortion be made by the Supreme Court or Congress?
  3. Should states be allowed to make their own decisions on abortion?

FRQ Practice

FRQ #1

In 1958, a white man named Richard Loving traveled with a black woman named Mildred Jeter across state lines to get married. At the time, Section 20-58 of the Virginia state code prohibited a “white” person and a “colored” person from leaving the state to be married. The Lovings’ case came to the Supreme Court as Loving v. Virginia (1967).

The Lovings argued that the Equal Protection and Due Process Clauses of the 14th Amendment protected their right to get married. The Court used a strict scrutiny standard to find the freedom to marry is “‘one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

  1. Identify the constitutional basis common between Loving v. Virginia (1967) and Roe v. Wade (1973).
  2. Explain how the Court’s argument in Loving v. Virginia (1967) is similar to that in Roe v. Wade (1973).

Explain how the decision in Loving v. Virginia (1967) could relate to the right to privacy.

Important Terms

Strict Scrutiny. Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. Courts often use strict scrutiny when a plaintiff sues the government for discrimination. To pass a strict scrutiny test, the legislature must have passed the law to further a “compelling governmental interest” and narrowly tailored the law to achieve that interest. Strict scrutiny is the highest standard of review that a court will use to evaluate the constitutionality of governmental discrimination. The other two standards are intermediate scrutiny and rational basis review.

Trimesters. 

  • First Trimester (0 to 13 Weeks)
  • Second Trimester (14 to 26 Weeks)
  • Third Trimester (27 to 40 Weeks)

Abortion. The termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus.

Fundamental Rights. The term fundamental right is a technical one for when certain human rights are written down in a Constitution and are protected by constitutional guarantees.

Suspect Classification. There are four generally agreed-upon suspect classifications: race, religion, national origin, and alienage. However, this is not an inclusive list.

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