Roe v. Wade

Yes. The decision in Roe v. Wade, (1973) rests on the judicial concept of "Substantive Due Process," which holds that the Fourteenth Amendment Due Process Clause is intended to protect all unenumerated rights considered fundamental and "implicit in the concept of ordered liberty," among these the right to privacy. Use of Substantive Due Process is considered judicial activism, in that it seeks to limit the scope of laws that undermine personal liberty, even if the law doesn't address a right specifically mentioned in the Constitution.

Earlier, Lochner-era (approximately 1897-1937, second industrial revolution) Courts used Substantive Due Process in a way that reduced protection of the individual against exploitation by businesses and the government, such as protecting the right of the individual to negotiate contracts with an employer by holding employment laws regulating minimum wage and work conditions unconstitutional.

Today, Substantive Due Process is used to protect the individual against exploitation or legislation that creates an undue burden on individuals, or on an identifiable group or class of citizens.

In order to determine whether the government has valid cause to interfere in people's lives, the Court applies a "rational basis test" to determine whether the legislation is related to a legitimate government interest. If the law passes the rational basis test, the Court next applies "strict scrutiny" to determine whether there is a compelling state interest that justifies violating the groups' or individuals' fundamental rights, and whether the law is applied as narrowly as possible to infringe those rights as little possible.

The right to privacy is intrinsic in this abortion case because the Court held that the decision about whether to terminate or continue a pregnancy was one that should be made between doctor and patient, not legislated by the government.

While the Court has consistently acknowledged the State's interest in the life of the unborn child, that right has been held subordinate to the right to privacy.

For more information about the Supreme Court decision in Roe v. Wade, see Related Questions, below.

Jane Roe, whose real name is Norma McCorvey, gave birth to a daughter in June 1970, several months after the case was initiated. By the time Roe v. Wade reached the US Supreme Court, the child was almost three years old and living with an anonymous adoptive family.

McCorvey had three children. The first, by her husband Woody McCorvey, was allegedly kidnapped, then later adopted, by Norma's mother when Norma confessed her sexual orientation was either bi- or lesbian.

She got pregnant with a second child sometime in 1965. The child was adopted by the baby's father under the condition that McCorvey never attempt contact.

The Roe baby was the result of her third pregnancy, and was placed for private adoption.

McCorvey, who was homeless and living on the street during her pregnancy, says she lent her name to the case because her circumstances fit a profile the pro-choice lawyers felt was compelling. She claims they approached her about challenging the Texas anti-abortion laws; she didn't contact them. McCorvey said she really had nothing to do with the case: never testified, never appeared in court, and only learned of the Supreme Court ruling sometime after-the-fact.

McCorvey was, however, pro-choice until she converted to Christianity, and was later baptized Catholic. She says she has been "100% pro-life" since August 8, 1995.

Norma McCorvey was arrested in May 2009 at a Notre Dame pro-life rally protesting President Obama's visit to the University.

Case Citation:

Roe v. Wade, 410 US 113 (1973)

No. Chief Justice Roger B. Taney is best known for his opinion in Dred Scott v. Sandford, (1857), a landmark case that denied slaves citizenship or freedom.

Justice Harry Blackmun wrote the opinion of the Court for Roe v Wade, (1973).

Roe v. Wade can't go back to court; that case is legally resolved and can't be reopened.

In order for the Supreme Court to hear a challenge to legalized abortion, someone with standing (someone who is personally and legitimately harmed in a way that can be resolved by the court) must bring legal action, exhaust the appellate process, and petition the Supreme Court with the hope that the case will be one of the few chosen for review. This is unlikely to happen (if such a scenario can even be devised). Regardless of political hype, the reality is neither the Democrats nor the upper-echelon Republicans really want Roe overturned, because the abortion issue is part of the stranglehold the Republicans have on a large portion of their electorate.

Incidentally, fetuses don't currently have standing to file suit.

Optionally, one or more of the states must defy the Supreme Court and pass legislation clearly in violation of the Court's decision in Roe v. Wade, then wait for the inevitable challenge to work its way through the courts. Such a case would almost certainly catch the Court's attention.

Another possibility is that Congress could pass legislation protecting a fetus' rights from the moment of conception, but this effort has failed time and time again. Even if such a law passed, it would immediately be challenged as unconstitutional.

It's unlikely even the conservative Roberts' Court would overturn the precedent set and subsequently upheld in Roe, but anything is possible.

In any event, the bottom line is Roe v. Wade can'tgo back to court.

The Does were on Roe's side.

The Does, a married but childless couple, filed as intervenors in the Roe v. Wade suit because they were concerned they might face the prospect of pregnancy at some point and wanted the legal right to terminate if that occurred.

The Court consolidated their action and the action of a second intervenor, Dr. Hallford, an abortion provider, into the Roe suit.

Case Citation

Roe v. Wade, 410 US 113 (1973)

IF the current Supreme Court overturned Roe v. Wade, (1973), (as the result of a decision in a different case) the vote would probably split 5-4 down ideological lines. Justice Anthony Kennedy, a conservative, but the only real swing vote on the Court, upheld Roe in a 1992 case:

Possible voting pattern I

Right-to-Life (4)

Chief Justice John G. Roberts, Jr.

Justice Antonin Scalia

Justice Clarence Thomas

Justice Samuel Alito

Pro-Choice (5)

Justice Ruth Bader Ginsberg

Justice Stephen Breyer

Justice Sonia Sotomayor

Justice Elena Kagan

Justice Anthony Kennedy (upheld Roe in 1992 case)

Possible voting pattern II

Right-to-Life (5)

Chief Justice John G. Roberts, Jr.

Justice Antonin Scalia

Justice Anthony Kennedy

Justice Clarence Thomas

Justice Samuel Alito

Pro-Choice (4)

Justice Ruth Bader Ginsberg

Justice Stephen Breyer

Justice Sonia Sotomayor

Justice Elena Kagan

In 1972 there were 586,760 legal abortions but not all states reported in.

It can be compared to that according to the Centers for Disease Control (CDC), there were 820,151 legal induced abortions in the US in 2005 but also not all states reported in. The true number was 1,2 million.

The initial argument advanced by Assistant District Attorney John Tolle was that Roe (Norma McCorvey) lacked standing to bring action because the Texas statutes in question were directed at the medical provider, not at the potential recipient of the abortion. A three-judge panel determined they would hear the case anyway.

McCorvey's attorneys changed the suit to a class action on behalf all pregnant women in the state of Texas, and were joined by an intervenor, Dr. James Hallford, who had been charged with performing illegal abortions.

Texas next presented an argument that unborn fetus's had legal rights, and that the state had a compelling interest in protecting their safety.

The State also raised an objection about Roe's standing to sue, this time claiming that so much time had elapsed before the trial she must be too far along in her pregnancy to render abortion a viable option, making her argument moot.

Tolle also argued that changes to the State's abortion laws fell under the purview of the state legislature, and were not appropriately decided by a federal court.

Tolle addressed the issue of privacy, which had been raised under the Ninth Amendment by stating, "the right of that child to life is superior to that woman's right to privacy."

The US District Court panel concluded, "The Texas abortion laws must be declared unconstitutional because they deprive single women and married couples, of their right, secured by the Ninth Amendment, to choose whether to have children." however, they refused to make a declaratory judgment, allowing the Fifth Circuit to hold the laws unconstitutional on appeal.

Case Citation:

Roe v. Wade, 410 US 113 (1973)

Roe v. Wade, (1973) was a civil case so there was no defendant. The nominal respondent, Henry B. Wade, was the District Attorney of Dallas County, Texas. Wade was named because of the office he occupied; the real "defendant" would have been the State of Texas, but states have immunity from being sued (per the Eleventh Amendment).

The consequence of the decision was that the Texas anti-abortion law was overturned. There were no known personal consequences for Henry Wade or anyone else on the respondent side of the case.

Case Citation:

Roe v. Wade, 410 US 113 (1973)

No, the Court reaffirmed Roe but rejected the rigid Trimester Rule outlined in that decision, and allowed certain minor regulations the Commonwealth of Pennsylvania imposed on women seeking abortions and the facilities that provided them.

In Planned Parenthood v. Casey, (1992) the Supreme Court upheld as constitutional many of the provisions of Pennsylvania Abortion Control Act of 1982, which set the following restrictions:

1. Required that a woman seeking an abortion give her informed consent prior to the procedure; (upheld)
2. Specified that she be provided with certain information at least 24 hours before the abortion is performed; (overturned)
3. Mandated the informed consent of one parent for a minor to obtain an abortion, but provides a judicial bypass procedure; (upheld)
4. Commanded that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband; (overturned)
5. Defined a "medical emergency" that will excuse compliance with the foregoing requirements; (upheld)
6. Imposed certain reporting requirements on facilities providing abortion services. (upheld)

Of the six rules, the Supreme Court held the state had a legitimate interest in ensuring an adult woman gave informed consent; a minor had consent from at least one parent or the courts; was able to define a "medical emergency" that would allow a facility to bypass the law; and impose reporting requirements on facilities providing abortions.

The court overturned as creating an undue burden and serving no legitimate purpose to the state government the requirement that a woman wait 24 hours after counseling before undergoing an abortion procedure and that she inform her husband prior to the procedure (or at all).

While the Court did agree to overturn unregulated access to abortions established in Roe, the new ruling imposed very little burden on the woman, and specifically excluded regulations that would delay or prevent women from obtaining abortions as protected under the doctrine of stare decisis.

Case Citation:

Planned Parenthood v. Casey, 505 U.S. 833 (1992)