The mention of Roe v. Wade immediately provokes a verbal, if not pugilistic, battleground. Few otherdecisions handed down by the U.S. Supreme Court have exerted such far-reaching ramifications, and generated so much controversy, as Roe.
"The times they are a-changin'." In the Sixties, America was entrenched in a war it apparently could not win. The "Hippie Generation" was flourishing. Women across the country were demanding equal rights with men. They also demanded respect.
The Roecase could have involved any woman confronting an unwanted pregnancy. Norma McCorvey happened to be available to an aggressive young attorney² from Austin, Texas, to use as a test case challenging Texas law forbidding abortion.
It also could have been nearly any attorney in any state that held abortion to be a crime.
In Griswold v. Connecticut (1965), Sarah Weddington, the Texas attorney,saw the case as a potential precursor to the Roe case, provided it reached the Supreme Court.
In Griswold, the court held that a "right of privacy" was an integral part of the Bill of Rights and the 14th Amendment's due process clause.
As a part of Griswold, constitutional protection was given to the "right of privacy," as applied to the possession of birth control pharmaceuticals.
TheRoe case before the Supreme Court
The first time Roe was heard before the court, in December 1971, the justices were not favorably impressed by the oral arguments, although Justice Harry Blackmun (appointed by Richard M. Nixon, and the junior associate of the court) wrote an opinion that would strike down the Texas law as "unconstitutionally vague."
This also was at a time of flux in thecourt's makeup: Justices Hugo Black (a holdover from the Franklin D. Roosevelt administration) and John Harlan (Dwight D. Eisenhower) had resigned from the court in September, and President Nixon was about to appoint two new justices.
At the time, those appointments could alter the final vote on Roe, so Chief Justice Warren Burger (a Nixon appointee) urged that the case be held over for re-argumentat a time that the court would be at full strength. It would be October 1972 before re-argumentation took place.
The court issued its decision in January 1973: By a majority vote of 7-2, the court voted to strike down the Texas law. Justices Byron White (John F. Kennedy) and William Rehnquist (one of Nixon's new appointees) dissented.
A similar law in Georgia, thelesser-known Doe v. Bolton, was struck down by the same majority on the same day.
The defining opinion
Justice Blackmun again wrote the majority opinion: That state laws outlawing abortion were struck down, allowing abortions in the first trimester, or three months, of pregnancy. After that period, abortions were allowed to safeguard the woman's health.
The court held that the word "Person" in theConstitution (narrative) "does not include the unborn." Further, after the first trimester, the state still has an interest in protecting the mother's health.
Regarding the "right of privacy" issue, the court found that although the Constitution (text) "does not explicitly mention any right of privacy," the court ruled that there was a "constitutional right of privacy in the 1st, 4th, 227:5th],9th, and 14th amendments." The right to privacy was broad enough to "encompass a woman's decision whether or not to terminate her pregnancy."
In addition, the knotty question of "whether a fetus can enjoy Constitutional protection is separate from the notion of when life begins," was not resolved by the court.
It should be noted that by the time the court considered the matter, McCorvey...