Roe v. Wade

{{title-italics}}
[[File:Norma McCorvey (Jane Roe), 1989.jpg|thumb|right|165px|(l-to-r) Norma McCorvey and her lawyer Gloria Allred in 1989]]
{{abortion}}
{{caselaw|Roe v. Wade|410 U.S. 113|January 22, 1973}}
{{cquote|This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or […] in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether to terminate her pregnancy.|||Justice Harry Blackmun in the majority opinion.<ref name=roe/>}}

'''''Roe v. Wade''''' was a landmark 1973 [[Supreme Court]] ruling which held that the [[US Constitution]] generally protects a [[pregnant]] person's choice to have an [[abortion]] in certain circumstances. The case and decision became one of the most controversial moments in the Court's history,<ref>[https://web.archive.org/web/20200229161048/https://constitutioncenter.org/interactive-constitution/blog/landmark-cases-roe-v-wade On this day, the Roe v. Wade decision] (January 22, 2020) ''National Constitution Center'' (archived from February 29, 2020).</ref> prompting a decades-long battle by the [[Republican Party]] and the [[Federalist Society]] to see it undone, primarily by stacking federal and state courts with [[right-wing]] [[extremist]]s.<ref name="fedsoc">[https://theintercept.com/2022/05/10/roe-v-wade-federalist-society-religious-right/ A “Woodstock” For Right-wing Legal Activists Kicked Off The 40-year Plot To Undo Roe V. Wade: Two hundred conservatives gathered at Yale Law School and coalesced into a group whose name was a joke: the Federalist Society.] by Ilyse Hogue (May 10 2022, 10:45 a.m.) ''The Intercept.''</ref> In June 2022, the conservatives achieved a milestone when the Supreme Court voted 5-4 to overturn the ''Roe'' decision,<ref>[https://www.reuters.com/world/us/us-supreme-court-overturns-abortion-rights-landmark-2022-06-24/ U.S. Supreme Court overturns Roe v. Wade, ends constitutional right to abortion] by Lawrence Hurley and Andrew Chung (June 27, 202211:53 AM PDT) ''Reuters''.</ref><ref group=note>Chief Justice [[John Roberts]] voted to uphold the abortion ban in [[Mississippi]] that challenged ''Roe'', but thought it was too soon to overturn ''Roe'' outright.</ref> though this went challenged in several states.  

==Background==
{{More sources}}
This case was brought to the Supreme Court in 1973. Norma McCorvey, a [[Texas]] woman, alias Jane Roe at the time, filed a suit alleging that her [[rights]] to choose the direction of her life, and her choice of when or even if to [[Pregnancy|have a child]], were directly infringed upon by a Texas law that banned all abortions except those in case of [[rape]], [[incest]] or [[medical]] need.

The Court of Appeals decision was based on the [[Ninth Amendment]] (Enumeration clause), which states that just because a right is not explicitly mentioned in the [[United States Constitution|Constitution]] (such as the [[right to privacy]] and the right to decide when and how to have a family), that ''does not'' mean that someone does not have that right. The Appellate court relied heavily on ''[[Griswold v. Connecticut]]'' for its ruling.<ref>[https://casetext.com/case/roe-v-wade-2 Roe v. Wade] (Jun 17, 1970) ''Case Law''.</ref>

==Opinion==
The opinion was written by Justice Harry Blackmun. Notable for its definition of fundamental rights, the opinion was an expansion of the Supreme Court's jurisprudence under the [[Fourteenth Amendment]], which, along with ''Griswold v. Connecticut'', sets up spheres of personal activity which the [[state]] cannot regulate without good cause. Specifically, the Court held that the [[Fourteenth Amendment]] protects implicit rights enumerated in its penumbra, if not the text itself, which includes the right to privacy.<ref name=roe>[https://supreme.justia.com/cases/federal/us/410/113/ Roe v. Wade, 410 U.S. 113 (1973)] ''Justia: U.S. Supreme Court''.</ref> The holding of the Court has become a foundation of fundamental rights jurisprudence, and has been heavily relied upon since it was decided, underpinning many other famous cases such as ''[[Lawrence v. Texas]]''.<ref>[https://supreme.justia.com/cases/federal/us/539/558/ Lawrence v. Texas, 539 U.S. 558 (2003)] ''Justia: U.S. Supreme Court''.</ref>

Specifically, Blackmun argued that the right to terminate a pregnancy is in the penumbra of privacy rights protected by [[substantive due process]], since pregnancy can occasion life-changing events, changes not to be taken lightly. However, he noted that the pregnant person's interest in their own privacy is obviously counterbalanced by the [[fetus]]' interest in life, and the state's interest in protecting life. The question, then, is when each interest trumps the other, and what that means in law. Blackmun set up this framework specifically:

#In the first trimester, the right of the fetus is negligible.<ref group=note>Blackmun rejects the idea that life begins at conception in a footnote, referencing Texas' argument in this case that it did, as not compatible with the law of almost all states at the time that a fetus can be aborted in the case of the parent's health. Blackmun argued that, if life began at conception, Texas and other states would not allow this exception.</ref> However, the parent's interest is great, as during the first trimester, the health risks of an abortion are significantly less than those posed by pregnancy. Therefore, during this period, the state cannot regulate abortion.
#After the first trimester, the state may regulate abortion procedures ''et al'' but not necessarily ban abortions outright, until,
#The fetus' interest in life and the state's interest in protecting that life comes into being at the moment of viability&nbsp;– when a fetus can live on its own. After this moment, the balancing of the parent's interests ''vis-à-vis'' the fetus should be done by the states, not the Court, but if a state chooses to forbid abortions after viability, it would be ''allowed''.<ref>Parts VIII - IX of the Opinion of the Court.</ref> Depending on state law, the person could still choose to abort their fetus, but the [[Intact dilation and extraction|Partial Birth Abortion Act]] (upheld in ''[[Gonzales v. Carhart]]'') could potentially make late term abortion quite difficult.

==Erosion of rights==
The period from time from the ''Roe v Wade'' ruling in 1973 up to its overturning in 2022 saw a gradual eroding of abortion rights by an increasingly radically conservative Supreme Court, and to a much lesser extent by improvements in neonatal care that decreased the time of fetal viability outside the uterus.

The first such case that eroded Roe as ''Webster v. Reproductive Health Services'' in 1989, where the Supreme Court ruled that state medical facilities are not required to perform abortions.<ref name=pew>[https://www.pewresearch.org/religion/2013/01/16/a-history-of-key-abortion-rulings-of-the-us-supreme-court A History of Key Abortion Rulings of the U.S. Supreme Court] by David Masci & Ira C. Lupu (January 16, 2013) ''Pew Research Center''.</ref> This case was also the first time that a Supreme Court Justice ([[Antonin Scalia]]) wrote an opinion that Roe should be overturned.<ref name=pew/> In a minority opinion to the ruling, Justice Harry Blackmun accused three of the majority opinion justices (William Rehnquist, Byron White, and [[Anthony Kennedy]]) of attempting to overturn Roe by stealth.<ref name=pew/>

In ''Planned Parenthood v. Casey'' (1992), the Supreme Court ruled that it was permissible for states to enact laws made requirements for abortions in the first trimester as long as it was not an 'undue burden' on the pregnant person.<ref name=pew/> This opened up the possibility for states to require non-science based counseling of pregnant people (such as making false claims about [[Evidence linking abortion to breast cancer|abortion to breast cancer]]).

In 2000, the Supreme Court struck down state-based bans of fallaciously-named '[[Intact dilation and extraction|partial birth abortion]]' (''Stenberg v. Carhart''), but in 2003 President [[George W. Bush]] signed the Partial-Birth Abortion Ban Act, bringing back the bans.<ref name=pew/> The act was held as constitutional by the Supreme Court in 2007 (''Gonzalez v. Carhart'' and ''Gonzalez v. Planned Parenthood Federation of America'').<ref name=pew/>

Subsequently, some states began enacting so-called '[[fetal pain]]' laws, based on the non-scientific theory that fetuses could experience pain after 20 weeks gestation, and thus banning abortions after that time.<ref name=pew/>


===''Dobbs v. Jackson Women's Health Organization''===
[[File:-i---i- (52395996526).jpg|thumb|right|275px|Protestors outside the Court after the ''Dobbs'' announcement.]]
On May 2, 2022, ''Politico'' leaked a Supreme Court draft that called for ''Roe'' and ''Planned Parenthood v. Casey'' to be overturned.<ref>[https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 Supreme Court has voted to overturn abortion rights, draft opinion shows,] <i>Politico</i>.</ref> Justice [[Samuel Alito]] was the head honcho for the decision, citing the idea that since abortions are not stated in the Constitution (as are many rights we take for granted), they should therefore not be allowed, and that the 1973 decision was a judicial error, despite being a stark 7-2 vote with one liberal and one conservative dissenting,<ref group=note>Byron White and William Rehnquist, respectively.</ref> later reinforced by another 7-2 vote with the backing of a Reagan nominee. Others warned that overturning ''Roe'' could possibly lead to lack of healthcare and worse health conditions for pregnant people,<ref>[https://www.vox.com/policy-and-politics/23055300/supreme-court-overturn-roe-wade-abortion-bans-health-care The dire health consequences of denying abortions, explained], <i>Vox</i>.</ref> and greatly harm people of color.<ref>[https://www.verywellhealth.com/overturning-roe-v-wade-consequnces-5270889 Overturning Roe v. Wade Could Have Consequences Beyond Abortion Restrictions]</ref> 

On June 24, 2022, the Supreme Court Justices Samuel Alito, [[Clarence Thomas]], [[Brett Kavanaugh]], Neil Gorsuch, and Amy Coney Barrett all voted to overturn; John Roberts concurred in the judgment only and not the majority opinion (special concurrence). All of the Justices were picked by Republicans over the years with at least three having been hand-picked by former President [[Donald Trump]]. All Democratic judges voted against overturning ''Roe v. Wade'', but were simply outnumbered by conservative bias. Several of the judges in the majority made comments at their confirmation hearings affirming ''Roe v. Wade'' was "precedent".<ref>Sarah Al-Arshani (June 25, 2022). [https://www.businessinsider.com/each-supreme-court-justice-about-roe-v-wade-confirmation-hearing-2022-6 "Here's what each Supreme Court justice said about Roe v. Wade before they were confirmed"]. ''Business Insider''.</ref> This led US Senators Susan Collins (R–[[ME]]) and [[Joe Manchin]] (D/I–[[WV]]) to feel, after the ''Dobbs'' decision, they were misled into voting to confirm Kavanaugh and Gorsuch to the court.<ref>Alia Shoaib (June 25, 2022). [https://www.businessinsider.com/collins-manchin-say-kavanaugh-and-gorsuch-misled-them-on-roe-v-wade-2022-6 "Susan Collins and Joe Manchin, who voted to confirm justices Kavanaugh and Gorsuch, say they were misled on Roe v. Wade"]. ''Business Insider''.</ref>

Because several states wrote trigger laws in anticipation of ''Roe'''s overturning, and since some states maintained pre-''Roe'' abortion laws in their books, it's possible that up to 26 states will end up making abortion illegal, with some already doing so.<ref>[https://www.npr.org/2022/05/03/1096094942/roe-wade-overturned-what-happens-next Here's what could happen if Roe v. Wade is overturned,] ''NPR''.</ref> It was speculated before that overturning ''Roe'' could also end up severely damaging LGBT rights.<ref>[https://www.pbs.org/newshour/politics/lgbtq-advocates-worry-other-rights-at-risk-if-court-overturns-roe-v-wade LGBTQ advocates worry other rights at risk if court overturns Roe v. Wade], PBS.</ref> This may be becoming true; with overturning ''Roe'' not being enough, Justice Clarence Thomas called for three other decisions to be "reviewed": ''[[Lawrence v. Texas]]'', which declared anti-sodomy laws unconstitutional; ''[[Obergefell v. Hodges]]'', which legalized same-sex marriage throughout the US (except for [[American Samoa]] and Indian reservations); and ''[[Griswold v. Connecticut]]'', which legalized contraceptives in the US.<ref>https://www.newsweek.com/clarence-thomas-gay-marriage-supreme-court-ruling-obergefell-v-hodges-1718971</ref>

[[File:Gestational limits for elective abortion in the United States.svg|thumb|center|500px|The state of abortion in the United States post-''Roe v. Wade''.
{{legend|#000000|Illegal}}
{{legend|#808080|Legally unclear or legal but no providers<br/>}}
{{legend|#960018|Legal before cardiac-cell activity{{efn|This generally happens in the 6th week LMP.}}}}
{{legend|#CA1F7B|Legal through 12<sup>th</sup> week LMP}}
{{legend|#CC00FF|Legal through 15<sup>th</sup> week LMP (1st trimester)}}
{{legend|#9900FF|Legal through 18<sup>th</sup> week LMP}}
{{legend|#663399|Legal through 20<sup>th</sup> week LMP}}
{{legend|#0000FF|Legal through 22<sup>nd</sup> week LMP (5 months)}}
{{legend|#0088FF|Legal before fetal viability{{efn|Typically, it is between the 23<sup>rd</sup> or 24<sup>th</sup> week LMP.}}}}
{{legend|#00CCFF|Legal through 24<sup>th</sup> week LMP (5½ months)}}
{{legend|#00D080|Legal through second trimester{{efn|Variously defined as through 27<sup>th</sup> or 28<sup>th</sup> week LMP; in Massachusetts, 24 weeks from implantation ≈ 27 weeks LMP.}}}}
{{legend|#00FF00|Legal at any stage}} LMP is the time since the onset of the last menstrual period.]]

==Life post-''Dobbs''==
In the 6 months after ''Dobbs'', there were 32,000 fewer abortions than would be typically expected,<ref>[https://www.societyfp.org/wp-content/uploads/2023/03/WeCountReport_April2023Release.pdf #WeCount Report] (April 11, 2023) ''Society of Family Planning''.</ref> or about 64,000 per year. Bear in mind that many states have decided ''not'' to outlaw or restrict abortion, so people in need of an abortion who were unfortunate enough to live in states that ''did'' outlaw abortion would often travel to states where people are generally sane enough to value the physical and mental health of pregnant people. Given that being a parent is basically dealing with one last-minute emergency after another,{{nofact}} one can presume that the people who are forced to carry unwanted or inviable pregnancies to term are probably going to struggle as parents.

With all the busses and trains apparently missing the [[rapture]], one might expect some [[charity]] organizations to begin offering travel assistance in the near future, and the anti-abortion crowd seems to have expected this as well; they began pushing for all sorts of insane laws criminalizing someone traveling for an out-of-state abortion.<ref>[https://www.washingtonpost.com/politics/2022/06/29/abortion-state-lines/ Antiabortion lawmakers want to block patients from crossing state lines: Some advocacy groups and their allies are crafting legislative language that could be adopted in Republican-led state capitals.] by Caroline Kitchener & Devlin Barrett (Updated June 30, 2022 at 8:30 a.m. EDT; Published June 29, 2022 at 6:17 p.m. EDT) ''The Washington Post''.</ref> Anyone with an inkling of understanding of [[constitution]]al law would immediately say "[[Commerce Clause]]", proving that constitutional law is not for [[wingnut]]s. In [[Idaho]], such a bill has become law, and anyone who assists a minor to get an abortion in another state can face 2-5 years in prison.<ref>[https://www.nbcnews.com/health/womens-health/idaho-most-extreme-anti-abortion-state-law-restricts-travel-rcna78225 Idaho becomes one of the most extreme anti-abortion states with law restricting travel for abortions: A bill that prohibits people in Idaho from helping pregnant minors leave the state to obtain abortions became law on Wednesday.] by Aria Bendix (April 6, 2023, 6:24 AM PDT) ''NBC News''.</ref>

Furthermore, in the confusion regarding the actual laws/punishments on the books, some minors were denied abortions after having been [[rape]]d,<ref>[https://www.cincinnati.com/story/news/2022/09/27/affidavits-2-more-raped-minors-were-denied-ohio-abortions/69520380007/ Affidavits: 2 more pregnant minors who were raped were denied Ohio abortions] by Marty Schladen (Published: 11:00 p.m. ET Sept. 26, 2022; Updated: 10:13 a.m. ET Sept. 27, 2022) ''The Enquirer, Cincinnati''.</ref> including a 10-year old,<ref>[https://www.bbc.com/news/world-us-canada-62158357 Man charged with raping Ohio girl, 10, who was denied abortion] (14 July 2022) ''BBC''.</ref> having to add on the extra stress of traveling on top of everything else they had to deal with.

In a more mundane issue, though not if it affects your pregnancy of course, is how the ruling can affect civil lawsuits.  In the US, there is a form of medical malpractice called "wrongful birth"; a mother would've aborted had she known there was a fetal defect, the doctor did not perform at the standard of care, and the doctor's failure resulted in the mother not being aware of the defect.  In one case, a doctor failed to detect that a fetus was missing most of its limbs, and the mother won $2.5m to cover medical expenses for the infant... but that was overturned on appeal because the day the mother had the scans was 1 or 2 days into the 3rd trimester; as Florida did not allow for 3rd trimester abortions for fetal impairment, she could not have received an abortion in the state of Florida.<ref>[https://medicalmalpracticelawyers.com/florida-appellate-court-overturns-2-5m-wrongful-birth-verdict/ Florida Appellate Court Overturns $2.5M Wrongful Birth Verdict]</ref>  She could, however, have gone to another state that does allow abortion for fetal impairment in the third trimester, but that was irrelevant to the ruling.  This was while Roe was in effect; since then, Florida has limited abortions to just the first half of the first trimester, before many pregnancies can even ''be detected'', let alone any fetal impairments, and fetal impairment exceptions are limited ''only'' to fatal cases.  So if the doctor screws up and doesn't detect an impairment, or even worse, the doctor intentionally withholds this information so you won't want to abort, it doesn't matter if you could've gone even just 5 miles away to another state where abortions are legal, you don't have legal recourse.

The effect of the no-exception anti-abortion laws has been called 'forced birth', and is particularly cruel in states without paid family medical leave (PFML).<ref name=schnakemahl>[https://pmc.ncbi.nlm.nih.gov/articles/PMC10524009/pdf/nihms-1896470.pdf Forced Birth and No Time Off Work: Abortion Access and Paid Family Leave Policies] by Alina S. Schnake-Mahl et al. (2023) ''Am. J. Prev. Med.'' 65(4):755–759. doi:10.1016/j.amepre.2023.04.01.</ref><ref>[https://www.springgroup.com/state-of-states-whitepaper/ Status of the States: Paid Family and Medical Leave in the U.S.] by Karen Trumbull English (February 17, 2023) ''Spring Consulting Group''.</ref>
{{cquote|These two policy areas [abortion bans with reproductive rights restrictions and PFML] illuminate the conditions placed upon birthing people in many US states, whereby state legislators and governors force birth and then compel mothers to either work to the detriment of themselves and their infants or leave the workforce by denying them access to paid leave in the weeks following birth.|||Alina S. Schnake-Mahl et al.<ref name=schnakemahl/>}}

==The Republican Party's Guide to Human Development==
<center><gallery widths=225px heights=225px>
File:Sperm viability test.jpg|It's alive! ({{bible|Genesis|38|9:10}})
File:Embryo, 8 cells.jpg|The precious miracle of life.
File:Mother and newborn sharing a moment.jpg|Another burden on the [[welfare]] state.
File:Эмбрион человека 2-е сутки развития.jpg|An innocent soul that must be defended and cared for.
File:Baby Face.JPG|An irresponsible decision that shouldn't be rewarded with government assistance.
File:Embryo at around 6 weeks EGA from conception (42881289375).jpg|A gift from [[God]] and a reminder to care for the helpless.
File:Umwotsi.jpg|Undeserving recipient of the foreign aid budget, which we should cut as soon as possible.
File:Approximately 8=10 week EGA from Conception Embryo (21281733395).jpg|Endless potential to bring good into the world.
File:Care for the newborns.jpg|Probably a future criminal.
File:Feto-30-semanas.jpg|Every person matters!
File:The newborn baby in men.jpg|Not a good enough reason to bloat Big Government with welfare and assistance programs.
</gallery></center>

==External links==
*[http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/nclr63&div=20&id=&page= 1985 NC Law Review] - [[Ruth Ginsburg]] discusses possible alternative rulings to ''Roe'', and how addressing an issue of "privacy" in an attempt to avoid more direct rights of people to control their reproduction led to the mess we have today.

==Notes==
{{reflist|group=note}}

==References==
{{reflist}}

{{abortionnav}}

[[Category:United States Supreme Court cases]]
[[Category:Constitutional law]]

Categories: United States Supreme Court cases, Constitutional law