<?xml version="1.0" encoding="UTF-8"?>
<document>
<title>Roe v. Wade</title>
<authors>Wikipedia</authors>
<publisher>wikipedia.org</publisher>
<publishedplace>network</publishedplace>
<publishedyear>2010</publishedyear>
<edition></edition>
<category>United States Supreme Court cases</category>
<section id="12059" fatherid="0" title="" lv="" priority="-1" level="1">
Roe v. Wade, ,Roe v. Wade, 410 U.S. 113 (1972). Findlaw.com.  Retrieved 2007-01-26 a landmark case decided by the United States Supreme Court on the issue of abortion, is one of the most controversial and politically significant cases in U.S. Supreme Court history.
The Court held that a woman may abort her pregnancy for any reason, up until the "point at which the fetus becomes 'viable'". The Court defined viability as the potential "to live outside the mother's womb, albeit with artificial aid," adding that viability "is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."The Court recognized that these numbers would change with changing medical technology.  The Court said that, after viability, abortion must be available when needed to protect a woman's health, as defined in the companion case of Doe v. Bolton.Doe v. Bolton, 410 U.S. 179 (1973). Findlaw.com.  Retrieved 2007-01-26.  The Court rested these conclusions on a constitutional  to privacy emanating from the Due Process Clause of the Fourteenth Amendment, also known as substantive due process.
In disallowing many state and federal restrictions on abortion in the United States, Roe v. Wade prompted a national debate that continues today, about issues including whether and to what extent abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role should be of religious and moral views in the political sphere. Roe v. Wade reshaped national politics, dividing much of the nation into pro-Roe (mostly pro-choice) and anti-Roe (mostly pro-life) camps, while activating grassroots movements on both sides.

</section>
<section id="12060" fatherid="0" title="History of the case" lv="" priority="2" level="1">
In September 1969, while working as a carnival side-show barker, Norma L. McCorvey discovered she was pregnant.  She returned to Dallas, where friends advised her to assert that she had been raped, because then she could obtain a legal abortion (with the understanding that Texas's anti-abortion laws allowed abortion in the cases of rape and incest).  However, this scheme failed, as there was no police report documenting the alleged rape.  She attempted to obtain an illegal abortion, but found the site shuttered, closed down by the police.  Eventually, she was referred to attorneys Linda Coffee and Sarah Weddington. " " McCorvey, Norma and Meisler, Andy. I Am Roe: My Life, Roe V. Wade, and Freedom of Choice (Harpercollins, May, 1994) (Copy © 2009 Farlex, Inc.  Retrieved (2009-08-20).
In 1970, attorneys Linda Coffee and Sarah Weddington filed suit in a U.S. District Court in Texas on behalf of Norma L. McCorvey (under the alias Jane Roe).  At the time, McCorvey was no longer claiming her pregnancy was the result of rape, but she later acknowledged she had lied earlier about having been raped.Richard Ostling. "A second religious conversion for 'Jane Roe' of Roe vs. Wade", Associated Press (1998-10-19): "She confessed that her tale of rape a decade before had been a lie; she was simply an unwed mother who later gave the child up for adoption.".  The defendant in the case was Dallas County District Attorney Henry Wade, representing the State of Texas.  Although McCorvey was still hoping the courts would rule in her favor in time for her to end her unwanted pregnancy, she told her attorneys, "Let's do it for other women." " " McCorvey, Norma and Meisler, Andy. I Am Roe: My Life, Roe V. Wade, and Freedom of Choice (Harpercollins, May, 1994) (Copy © 2009 Farlex, Inc.  Retrieved (2009-08-20).
"Rape" is not mentioned anywhere in the court documents and was never a consideration in Roe v. Wade. 410 U.S. 113 (1973). Findlaw.com.  Retrieved 2009-08-20  Norma McCorvey's affidavit does not include the word "rape".   Affidavit of Norma McCorvey, The United States District Court, Northern District of Texas, Dallas Division, Civil Action No. 3-3690-B and No. 3-3691-C
The district court ruled in McCorvey's favor on the merits, but declined to grant an injunction against the enforcement of the laws barring abortion.Roe v. Wade, 314 F. Supp. 1217 (1970): "On the merits, plaintiffs argue as their principal contention that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couple of their s secured by the Ninth Amendment to choose whether to have children. We agree." Retrieved 2008-09-04.  The district court's decision was based upon the Ninth Amendment, and the court also relied upon a concurring opinion by Justice Arthur Goldberg in the 1965 Supreme Court case of Griswold v. Connecticut, regarding a  to use contraceptives. Few state laws proscribed contraceptives in 1965 when the Griswold case was decided, whereas abortion was widely proscribed by state laws in the early 1970s.O'Connor, Karen. Testimony before U.S. Senate Judiciary Committee, "The Consequences of Roe v. Wade and Doe v. Bolton" (2005-06-23).  Retrieved 2007-01-30
Roe v. Wade ultimately reached the U.S. Supreme Court on appeal. Following a first round of arguments, Justice Harry Blackmun drafted a preliminary opinion that emphasized what he saw as the Texas law's vagueness.Schwartz, Bernard. The Unpublished Opinions of the Burger Court, page 103 (1988 Oxford University Press), via Google Books.  Retrieved 2007-01-26 Justices William Rehnquist and Lewis F. Powell, Jr. joined the Supreme Court too late to hear the first round of arguments.  Therefore, Chief Justice Warren Burger proposed that the case be reargued; this took place on October 11, 1972. Weddington continued to represent Roe, and Texas Assistant Attorney General Robert C. Flowers stepped in to replace Wade.  Justice William O. Douglas threatened to write a dissent from the reargument order, but was coaxed out of the action by his colleagues, and his dissent was merely mentioned in the reargument order without further statement or opinion. Garrow David. Liberty and Sexuality: The Right to Privacy and the Making of Roe V. Wade (Univ. of Calif. 1998), p. 556.  Retrieved 2007-01-30

</section>
<section id="12061" fatherid="0" title="Supreme Court decision" lv="" priority="3" level="1">
<section id="12062" fatherid="12061" title="" lv="" priority="-1" level="2">
The Roe Court deemed abortion a fundamental  under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny. Although abortion is still considered a fundamental , subsequent cases, notably Planned Parenthood v. Casey, Stenberg v. Carhart, and Gonzales v. Carhart have affected the legal standard.
The opinion of the Roe Court, written by Justice Harry Blackmun, declined to adopt the district court's Ninth Amendment rationale, and instead asserted that the " 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, as the District Court determined, in the Ninth Amendment's reservation of s to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."  Douglas, in his concurring opinion from the companion case Doe v. Bolton, stated more emphatically that, "The Ninth Amendment obviously does not create federally enforceable s."  Thus, the Roe majority rested its opinion squarely on the Constitution's due process clause.
The majority opinion is organized into twelve sections preceded by a brief preface; the first four sections provide background.  Section I briefly outlines the challenged Texas abortion statutes.  Section II characterizes the factual and procedural backgrounds of Jane Roe's and Mary Doe's litigation, including the District Court's rulings regarding the procedural questions (here, justiciability, standing, and abstention) and the merits (here, the requests for declaratory judgment and injunctive relief).  Section III is a single paragraph resolving that under the law of Federal Court procedure, the opinions in Mitchell v. Donovan and Gunn v. University Committee do not foreclose review a case of this kind when it is properly here on appeal under § 1253. Section IV issues the court's decision on the procedural questions described in Part II.
Section V is a single paragraph introducing the discussion of the merits, led by the following:

Section VI surveys the history of abortion regulations, in eight subparts: 1. Ancient attitudes (including those of the Persian Empire, Greek times, the Roman era). 2. The Hippocratic oath. 3. The common law.  4. The English statutory law.  5. The American law.  6. The position of the American Medical Association.  7. The position of the American Public Health Association. 8. The position of the American Bar Association.  According to the Roe Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage."  Prior to 1821, when Connecticut passed the first state statute criminalizing abortion, abortion in the United States was sometimes considered a common law crime.Wilson, James, "Of the Natural Rights of Individuals" (1790-1792): “In the contemplation of law, life begins when the infant is first able to stir in the womb.”  Also see Blackstone, William. Commentaries (1765): "Life ... begins in contemplation of law as soon as an infant is able to stir in the mother's womb."  Every state had abortion legislation by 1900.Cole, George; Frankowski, Stanislaw.  Abortion and protection of the human fetus : legal problems in a cross-cultural perspective, page 20 (1987): "By 1900 every state in the Union had an anti-abortion prohibition."  Via Google Books.  Retrieved (2008-04-08).  However, the court concluded that it could not find a sufficient historical basis to justify the Texas statute.
In Section VII, the Court identified three state interests that could be cited to justify criminalizing abortion: (1) an interest in discouraging women from engaging in "illicit sexual conduct", which interest would be undermined by making abortion widely available; (2) an interest in reducing access to a risky medical procedure—which abortion could still be in the late stages of pregnancy, despite modern medical techniques such as antibiotics; and (3) an interest in protecting prenatal life.  Blackmun rejected the first interest out-of-hand, writing that "no court or commentator has taken the argument seriously" and that in any event it could not be cited in support of this statute, which failed to "distinguish between married and unwed mothers".  Accordingly, the only valid state interests are reducing medical risk and protecting prenatal life.  (In Section X, the Court reiterated, "The State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman and still another important and legitimate interest in protecting the potentiality of human life.")  Thus, "arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive".
In Section VIII, the Court also identified a countervailing  that would have to be weighed against these state interests: namely, a Constitutional  to privacy: "We, therefore, conclude that the  of personal privacy includes the abortion decision, but that this  is not unqualified and must be considered against important state interests in regulation."  The innovation of the Roe court was to locate this " of privacy" in the due process clause of the Constitution.  Although the Constitution does not explicitly mention any  of privacy, the Court had previously found support for various privacy s—directly (in several provisions of the Bill of Rights and the Fourteenth Amendment) as well as indirectly (in the "penumbra" of the Bill of Rights) -- most recently in Griswold v. Connecticut.
In Section IX, the Court added that there was no legal grounds for factoring into this balancing test any  to life of the unborn fetus.  The fetus would have such a  if it were defined as a legal person for purposes of the Fourteenth Amendment, but the original intent of the Constitution (up to the enactment of the Fourteenth Amendment in 1868) did not include protection of the unborn.  The Court emphasized that its determination of whether a fetus can enjoy constitutional protection neither meant to reference, nor intervene in, the question of when life begins:  "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."
Section X explained that the trimester of pregnancy is highly relevant to the weight of the factors in this balancing test.  Thus, during the first trimester, the state cannot restrict a woman's  to an abortion in any way; during the second trimester, the state may only regulate the abortion procedure "in ways that are reasonably related to maternal health"; during the third trimester, the state can choose to restrict or proscribe abortion as it sees fit when the fetus is viable ("except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother").
Section XI succinctly summarizes the Court's legal conclusions, explaining that a Texas-style criminal statute was unconstitutional, and recapitulating the permissible extent of state regulation in each of the three Constitutionally relevant time periods of pregnancy (i.e. divided by "approximately the end of the first trimester" and "the stage subsequent to viability").  Section XII resolves the present dispute: it struck down the Texas statute and characterized the relief that should be accorded to Roe.

</section>
<section id="12063" fatherid="12061" title="Justiciability" lv="" priority="-2" level="2">
An aspect of the decision that attracted comparatively little attention was the Court's disposition of the issues of standing and mootness.  Under the traditional interpretation of these rules, Jane Roe's appeal was "moot" because she had already given birth to her child and thus would not be affected by the ruling; she also lacked "standing" to assert the s of other pregnant women.Abernathy, M. et al., Civil Liberties Under the Constitution (U. South Carolina 1993), page 4.  Retrieved 2007-02-04.  As she did not present an "actual case or controversy" (a grievance and a demand for relief), any opinion issued by the Supreme Court would constitute an advisory opinion, a practice in which the Court traditionally did not engage.
The Court concluded that the case came within an established exception to the rule; one that allowed consideration of an issue that was "capable of repetition, yet evading review." This phrase had been coined in 1911 by Justice Joseph McKenna.Southern Pacific v. Interstate Commerce Commission, 219 U.S. 498 (1911).  Findlaw.com.  Retrieved 2007-01-26 Blackmun's opinion quoted McKenna, and noted that pregnancy would normally conclude more quickly than an appellate process: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied."

</section>
</section>
<section id="12064" fatherid="0" title="Dissents" lv="" priority="-4" level="1">
Associate Justices Byron R. White and William H. Rehnquist wrote emphatic dissenting opinions in this case.  Justice White wrote:

White asserted that the Court "values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries." Despite White suggesting he "might agree" with the Court's values and priorities, he wrote that he saw "no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States."  White criticized the Court for involving itself in this issue by creating "a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected  to exterminate it."  He would have  this issue, for the most part, "with the people and to the political processes the people have devised to govern their affairs."
Rehnquist elaborated upon several of White's points, by asserting that the Court's historical analysis was flawed:
From this historical record, Rehnquist concluded that, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." Therefore, in his view, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."

</section>
<section id="12065" fatherid="0" title="Controversy" lv="" priority="5" level="1">
<section id="12066" fatherid="12065" title="" lv="" priority="-1" level="2">
Some pro-life supporters argue that all nine justices in Roe failed to adequately recognize that life begins at fertilization (also referred to as conception) and should therefore be protected by the Constitution;Paulsen, Michael Stokes.  What Roe v. Wade Should Have Said; The Nation’s Top Legal Experts Rewrite America’s Most Controversial decision, Jack Balkin Ed. (NYU Press 2005).  Retrieved 2007-01-26 the dissenting justices in Roe instead wrote that decisions about abortion "should be  with the people and to the political processes the people have devised to govern their affairs."  Other pro-life supporters argue that, in the absence of consensus of when life begins, it is best to avoid the risk of doing harm.Reagan, Ronald. Abortion and the Conscience of the Nation, (Nelson 1984): "If you don't know whether a body is alive or dead, you would never bury it. I think this consideration itself should be enough for all of us to insist on protecting the unborn."  Retrieved 2007-01-26 Every year on the anniversary of the decision, pro-life supporters demonstrate outside the Supreme Court Building in Washington, D.C. in the March for Life.Shimron, Yonat.  “Democratic Gains Spur Abortion Foes into Action,” The News -anddocsymbol- Observer (2009-01-18): “The annual March for Life procession is already among Washington's largest rallies, drawing an estimated 200,000 people.”Harper, Jennifer.  “Pro-life marchers lose attention,” Washington Times (2009-01-22): “the event has consistently drawn about 250,000 participants since 2003.”Johnston, Laura.  “Cleveland's first March for Life anti-abortion event draws 200,” Cleveland Plain Dealer (2009-01-18): “the Washington March for Life…draws 200,000 annually on the anniversary of the Roe v. Wade decision.”
Advocates of Roe describe it as vital to preservation of women's s, personal freedom, and privacy.  Denying the abortion  has been equated to compulsory motherhood, and some scholars (not including any member of the Supreme Court) have argued that abortion bans therefore violate the Thirteenth Amendment:
Opponents of Roe have objected that the decision lacks a valid constitutional foundation.  Like the dissenters in Roe, they have maintained that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the democratic process, rather than through an all-encompassing ruling from the Supreme Court. Some opponents do not feel that there is a violation of the 13th Amendment in cases where sex was consentual, as sex involves the risk of pregnancy. Voluntary sex includes assuming the risk of pregancy, discrediting the notion of "involuntary servitude". To assume the risk of pregnancy and then end the life of the fetus without allowing the fetus the  to defend itself can be considered a violation of the Constitution.
Supporters of Roe contend that the decision has a valid constitutional foundation, or contend that justification for the result in Roe could be found in the Constitution but not in the articles referenced in the decision.Koppelman, Andrew.  “Forced Labor: A Thirteenth Amendment Defense of Abortion”, Northwestern Law Review, Volume 84, page 480 (1990).What Roe v. Wade Should Have Said; The Nation’s Top Legal Experts Rewrite America’s Most Controversial decision, Jack Balkin Ed. (NYU Press 2005).  Retrieved 2007-01-26
In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent for minors to obtain abortions, parental notification laws, spousal mutual consent laws, spousal notification laws, laws requiring abortions to be performed in hospitals but not clinics, laws barring state funding for abortions, laws banning intact dilation and extraction (also known as partial-birth abortion), laws requiring waiting periods before abortion, or laws mandating women read certain types of literature before choosing an abortion.Guttmacher Institute, "State Policies in Brief, An Overview of Abortion Laws (PDF)", published 2007-01-01. Retrieved 2007-01-26. Congress in 1976 passed the Hyde Amendment, barring federal funding of abortions for poor women through the Medicaid program. The Supreme Court struck down several state restrictions on abortions in a long series of cases stretching from the mid-1970s to the late 1980s, but upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).Harris v. McRae, 448 U.S. 297 (1980).  Findlaw.com.  Retrieved 2007-01-26.
The most prominent organized groups that mobilized in response to Roe are the National Abortion Rights Action League on the pro-choice side, and the National Right to Life Committee on the pro-life side.  The late Harry Blackmun, author of the Roe opinion, was a determined advocate for the decision.  Others have joined him in support of Roe, including Judith Jarvis Thomson, who before the decision had offered an influential defense of abortion.Thomson, Judith. "A Defense of Abortion," in Philosophy and Public Affairs, vol. 1, no. 1 (1971), pp. 47–66.
Roe remains controversial. Polls show continued division about its landmark rulings, and about the decision as a whole.

</section>
<section id="12067" fatherid="12065" title="Internal memoranda" lv="" priority="2" level="2">
Internal Supreme Court memoranda surfaced in the Library of Congress in 1988, among the personal papers of Douglas and other Justices, showing the private discussions of the Justices on the case. Blackmun said of the majority decision he authored, "You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary."Woodward, Bob. "The Abortion Papers", Washington Post (1989-01-22).  Retrieved 2007-02-03.  Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to the state legislatures, though he joined Blackmun's decision.Kmiec, Douglas. "Testimony Before Subcommittee on the Constitution, Judiciary Committee, U.S. House of Representatives" (1996-04-22), via the "Abortion Law Homepage." Retrieved 2007-01-23.
The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the Court's decision.Bush, George Walker. Quoted in Boston Globe, p. A12 (2000-01-22). "Roe v. Wade was wrong because it 'usurped the power of the legislatures,' Bush said. 'I felt like it was a case where the court took the place of what legislatures should do in America,' he said. But Bush refused to say how he felt each state should act. Instead, he said that when it comes to legalizing abortion, 'it should be up to each legislature.'" Retrieved 2007-02-02. The "viability" criterion, which Blackmun acknowledged was arbitrary, is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.Stith, Irene. Abortion Procedures, CRS Report for Congress (PDF) (1997-11-17). Retrieved 2007-02-02.

</section>
<section id="12068" fatherid="12065" title="Liberal critiques" lv="" priority="3" level="2">
Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One reaction has been to argue that Justice Blackmun reached the correct result but went about it the wrong way.Balkin, Jack. Bush v. "Gore and the Boundary Between Law and Politics", 110 Yale Law Journal 1407 (2001): "Liberal and feminist legal scholars have spent decades showing that the result was correct even if Justice Blackmun’s opinion seems to have been taken from the Court’s Cubist period." Another reaction has been to argue that the ends achieved by Roe do not justify the means.Cohen, Richard. "Support Choice, Not Roe", Washington Post, (2005-10-19): "If the best we can say for it is that the end justifies the means, then we have not only lost the argument — but a bit of our soul as well." Retrieved 2007-01-23.
Justice John Paul Stevens, in a 2007 interview, averred that Roe "created a new doctrine that really didn’t make sense," and lamented that if Justice Blackmun "could have written a better opinion, that ... might have avoided some of the criticism."Rosen, Jeffrey. "The Dissenter", The New York Times Magazine (2007-09-23).  Rosen notes that Stevens is "the oldest and arguably most liberal justice."  His colleague Justice Ruth Bader Ginsburg had, before joining the Court, criticized the decision for terminating a nascent democratic movement to liberalize abortion law.Ginsburg, Ruth. "Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade", 63 North Carolina Law Review 375 (1985): "The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting.  Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict."  Retrieved 2007-01-23. Watergate prosecutor Archibald Cox wrote: "Roe’s failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations.... Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."Cox, Archibald. The Role of the Supreme Court in American Government, 113–114 (Oxford U. Press 1976), via Google Books.  Retrieved 2007-01-26. Stuart Taylor has argued that "Roe v. Wade was sort of conjured up out of very general phrases and was recorded, even by most liberal scholars like Archibald Cox at the time, John Harvey Link - just to name two Harvard scholars - as kind of made-up constitutional law.”  See Stuart Taylor Jr., Online News Hour, PBS 2000-07-13.
In a 1973 article in the Yale Law Journal, Professor John Hart Ely criticized Roe as a decision which "is not constitutional law and gives almost no sense of an obligation to try to be."Ely, John Hart. "The Wages of Crying Wolf", 82 Yale Law Journal 920 (1973).  Retrieved 2007-01-23.  Professor Ely "supported the availability of abortion as a matter of policy."  See Liptak, Adam.  "John Hart Ely, a Constitutional Scholar, Is Dead at 64", New York Times (2003-10-27).  Ely is generally regarded as having been a “liberal constitutional scholar.”  Perry, Michael (1999).   Ely added: "What is fening about Roe is that this super-protected  is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure." Professor Laurence Tribe had similar thoughts: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Quoted in  Liberal law professors Alan Dershowitz,Dershowitz, Alan. Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford U. Press 2001): “Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)....” quoted by Green, "Bushed and Gored: A Brief Review of Initial Literature", in The Final Arbiter: The Consequences of Bush V. Gore for Law And Politics, ed. Banks C, Cohen D -anddocsymbol- Green J., editors, page 14 (SUNY Press 2005), via Google Books. Retrieved 2007-01-26. Cass Sunstein,Sunstein, Cass. Quoted by McGuire, New York Sun (2005-11-15): "What I think is that it just doesn't have the stable status of Brown or Miranda because it's been under internal and external assault pretty much from the beginning....As a constitutional matter, I think Roe was way overreached.” Retrieved 2007-01-23. Sunstein is a "liberal constitutional scholar." See Herman, Eric. "Former U of C law prof on everyone's short court list", Chicago Sun-Times (2005-07-11). and 
Kermit RooseveltRoosevelt, Kermit. "Shaky Basis for a Constitutional ‘Right’", Washington Post, (2003-01-22): "It is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the  to choose, who will embrace the opinion itself rather than the result….This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental  to choose more or less from the constitutional ether. It supported that  via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entitled to the protection of the 14th Amendment....By declaring an inviolable fundamental  to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values." Retrieved 2007-01-23. have also expressed disappointment with Roe.
Jeffrey Rosen Rosen, Jeffrey. "Why We’d Be Better off Without Roe: Worst Choice", The New Republic via Archive.org(2003-02-24): “In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.”  Retrieved 2007-01-23. and Michael KinsleyKinsley, Michael. "Bad choice", The New Republic (2004-06-13): "Against all odds (and, I'm afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court....A freedom of choice law would guarantee abortion s the correct way, democratically, rather than by constitutional origami."  Retrieved 2007-01-23. echo Ginsburg, arguing that a democratic movement would have been the correct way to build a more durable consensus in support of abortion s. William Saletan wrote that "Blackmun’s Supreme Court papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference."Saletan, William. "Unbecoming Justice Blackmun", Legal Affairs, May/June 2005.  Retrieved 2007-01-23.  Saletan is a self-described liberal.  See Saletan, William. "Rights and Wrongs: Liberals, progressives, and biotechnology", Slate (2007-07-13). Benjamin Wittes has written that Roe "disenfranchised millions of conservatives on an issue about which they care deeply".Wittes, Benjamin. "Letting Go of Roe", The Atlantic Monthly, Jan/Feb 2005. Retrieved 2007-01-23. Wittes also said, "I generally favor permissive abortion laws." Wittes has elsewhere noted that, "In their quieter moments many liberal scholars recognize that the decision is a mess." See Wittes, Benjamin. "A Little Less Conversation", The New Republic 2007-11-29 And Edward Lazarus, a former Blackmun clerk who "loved Roe’s author like a grandfather" wrote: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible....Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms."Lazarus, Edward. "The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them", Findlaw's Writ (2002-10-03). Retrieved 2007-01-23.

</section>
</section>
<section id="12069" fatherid="0" title="Public opinion" lv="" priority="6" level="1">
A Gallup poll conducted in May 2009 indicates that a minority of Americans, 37%, believe that abortion should be legal in any or most circumstances, compared to 41% in May 2008.Saad, Lydia.  More Americans “Pro-Life” Than “Pro-Choice” for First Time, Gallup (2009-05-15).   Similarly, an April 2009 Pew Research Center poll showed a softening of support for legal abortion compared to the previous years of polling. People who said they support abortion in all or most cases dropped from 54% in 2008 to 46% in 2009.http://people-press.org/report/513/ "Public Takes Conservative Turn on Gun Control, Abortion
Americans Now Divided Over Both Issues", Pew Research Center (2009-04-30).
In contrast, an October 2007 Harris poll on Roe v. Wade asked the following question:

In reply, 56 percent of respondents indicated favor while 40 percent indicated opposition.  The Harris organization concluded from this poll that "56 percent now favors the U.S. Supreme Court decision." Pro-life activists have disputed whether the Harris poll question is a valid measure of public opinion about Roe's overall decision, because the question focuses only on the first three months of pregnancy.Franz, Wanda.  "The Continuing Confusion About Roe v. Wade", NRL News (June 2007).
Adamek, Raymond.  "Abortion Polls", Public Opinion Quarterly, Vol. 42, No. 3 (Autumn, 1978), pp. 411-413.  Dr. Adamek is pro-life.  Dr Raymond J Adamek, PhD Pro-Life Science and Technology Symposium.  The Harris poll has tracked public opinion about Roe since 1973:Harris Interactive, (2007-11-09). "Support for Roe v. Wade Increases Significantly, Reaches Highest Level in Nine Years." Retrieved 2007-12-14.
Harris Interactive. 'U.S. Attitudes Toward Roe v. Wade". The Wall Street Journal Online, (2006-05-04). Retrieved 2007-02-03.
center
Regarding the Roe decision as a whole, more Americans support it than support overturning it.Ayres McHenry Poll Results on Roe v. Wade via Angus Reid Global Monitor (2007).  When pollsters describe various regulations that Roe prevents legislatures from enacting, support for Roe drops.Gallagher, Maggie. “Pro-Life Voters are Crucial Component of Electability”, Realclearpolitics.com (2007-05-23).

</section>
<section id="12070" fatherid="0" title="Role in subsequent decisions and politics" lv="" priority="7" level="1">
<section id="12071" fatherid="12070" title="" lv="" priority="-1" level="2">
Opposition to Roe on the bench grew when President Reagan—who supported legislative restrictions on abortion—began making federal judicial appointments in 1981.  Reagan denied that there was any litmus test: "I have never given a litmus test to anyone that I have appointed to the bench…. I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law.  We've had too many examples in recent years of courts and judges legislating."Reagan, Ronald.  Interview With Eleanor Clift, Jack Nelson, and Joel Havemann of the Los Angeles Times (1986-06-23).  Retrieved 2007-01-23.
In addition to White and Rehnquist, Reagan appointee Sandra Day O'Connor began dissenting from the Court's abortion cases, arguing in 1983 that the trimester-based analysis devised by the Roe Court was "unworkable."Akron v. Akron Center for Reproductive Health Inc., 462 U.S. 416 (1983).  Findlaw.com.  Retrieved 2007-01-26.  Shortly before his retirement from the bench, Chief Justice Warren Burger suggested in 1986 that Roe be "reexamined";Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).  Findlaw.com.  Retrieved 2007-02-02. the associate justice who filled Burger's place on the Court—Justice Antonin Scalia—vigorously opposed Roe.  Concern about overturning Roe played a major role in the defeat of Robert Bork's nomination to the Court in 1987; the man eventually appointed to replace Roe-supporter Lewis Powell was Anthony M. Kennedy.
The Supreme Court of Canada used the rulings in both Roe and Doe v. Bolton as grounds to find Canada's federal law restricting access to abortions unconstitutional.  That Canadian case, R. v. Morgentaler, was decided in 1988.R. v. Morgentaler 1 S.C.R. 30 (1988).

</section>
<section id="12072" fatherid="12070" title="Webster v. Reproductive Health Services" lv="" priority="2" level="2">
In a 5-4 decision in 1989's Webster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution,"Webster v. Reproductive Health Services, 492 U.S. 490 (1989).  Findlaw.com.  Retrieved 2007-02-02.  In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.
In concurring opinions, O'Connor refused to reconsider Roe, and Justice Antonin Scalia criticized the Court and O'Connor for not overruling Roe.  Blackmun author of the Roe opinion stated in his dissent that White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their plurality opinion "foments disregard for the law."  White had recently opined that the majority reasoning in Roe v. Wade was "warped."

</section>
<section id="12073" fatherid="12070" title="Planned Parenthood v. Casey" lv="" priority="3" level="2">
With the retirement of Roe supporters William J. Brennan in 1990 and Thurgood Marshall in 1991, and their replacement by David Souter and Clarence Thomas, pro-choice advocates viewed Roe for the first time as being in danger.Wattleton, Faye. Testimony before the Senate Judiciary committee on the nomination of Clarence Thomas to the United States Supreme Court (PDF) (1991-09-19).  Retrieved 2007-02-02.  During the confirmation hearings of David Souter, NOW president Molly Yard declared that confirming Souter would mean "ending freedom for women in this country."Yard, Molly. Quoted in Kamen, "For Liberals, Easy Does it With Roberts", Washington Post (2005-09-19).  Retrieved 2007-01-23.
According to NPR, in deliberations for Planned Parenthood v. Casey (1992), an initial majority of five Justices that would have overturned Roe foundered when Justice Kennedy switched sides.Totenberg, Nina. "Documents Reveal Battle to Preserve 'Roe'; Court Nearly Reversed Abortion Ruling, Blackmun Papers Show", NPR's Morning Edition (2004-03-04).  Retrieved 2007-01-30.  O'Connor, Kennedy, and Souter joined Blackmun and Stevens to reaffirm the central holding of Roe, saying, "At the heart of liberty is the  to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).  Retrieved 2007-02-03.  Rehnquist and Scalia signed each others' dissenting opinions; White and Thomas signed those dissenting opinions as well.
Scalia's dissent acknowledged that abortion s are of "great importance to many women", but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed.  Scalia concluded: "By foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish."

</section>
<section id="12074" fatherid="12070" title="Stenberg v. Carhart" lv="" priority="4" level="2">
During the 1990s, Nebraska attempted to ban a certain second-trimester abortion procedure known as intact dilation and extraction (sometimes called partial birth abortion).  The Nebraska ban allowed other second-trimester abortion procedures called dilation and evacuation abortions.  Ginsburg (who replaced White) stated, "this law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."Stenberg v. Carhart, 530 U.S. 914 (2000).  Retrieved 2007-02-02.  The Supreme Court struck down the Nebraska ban by a 5-4 vote in Stenberg v. Carhart (2000), citing a  to use the safest method of second trimester abortion.
Kennedy, who had co-authored the 5-4 Casey decision upholding Roe, was among the dissenters in Stenberg, writing that Nebraska had done nothing unconstitutional.  Kennedy described the second trimester abortion procedure that Nebraska was not seeking to prohibit: "The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off."  Kennedy wrote that since this dilation and evacuation procedure remained available in Nebraska, the state was free to ban the other procedure sometimes called "partial birth abortion."
The remaining three dissenters in Stenberg Thomas, Scalia, and Rehnquist disagreed again with Roe: "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."

</section>
<section id="12075" fatherid="12070" title="Gonzales v. Carhart" lv="" priority="5" level="2">
In 2003, Congress passed the Partial-Birth Abortion Ban Act, which led to a lawsuit in the case of Gonzales v. Carhart.  The Court had previously ruled in Stenberg v. Carhart that a state's ban on "partial birth abortion" was unconstitutional because such a ban would not allow for the health of the mother.  The membership of the Court changed after Stenberg, with John Roberts and Samuel Alito replacing Rehnquist and O'Connor, respectively.  Further, the ban at issue in Gonzales v. Carhart was a federal statute, rather than a relatively vague state statute as in the Stenberg case.
On April 18, 2007, the Supreme Court handed down a 5 to 4 decision upholding the constitutionality of the Partial-Birth Abortion Ban Act. Kennedy wrote for the five-justice majority that Congress was within its power to generally ban the procedure, although the Court  the door open for as-applied challenges.  Kennedy's opinion did not reach the question whether the Court's prior decisions in Roe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart were valid, and instead the Court said that the challenged statute is consistent with those prior decisions whether or not those prior decisions were valid.
Joining the majority were Chief Justice John Roberts, Scalia, Thomas, and Alito. Ginsburg and the other three justices dissented, contending that the ruling ignored Supreme Court abortion precedent, and also offering an equality-based justification for that abortion precedent. Thomas filed a concurring opinion, joined by Scalia, contending that the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed, and also noting that the Partial-Birth Abortion Ban Act may exceed the powers of Congress under the Commerce Clause.

</section>
<section id="12076" fatherid="12070" title="Activities of Norma McCorvey" lv="" priority="6" level="2">
Norma McCorvey became a member of the pro-life movement in 1995; she now supports making abortion illegal.  In 1998, she testified to Congress:

As a party to the original litigation, she sought to reopen the case in U.S. District Court in Texas to have Roe v. Wade overturned.  However, the Fifth Circuit decided that her case was moot, in McCorvey v. Hill.McCorvey v. Hill, 385 F3d 846 (PDF) (5th Cir 2004).  Findlaw.com.  Retrieved 2007-01-26  In a concurring opinion, Judge Edith Jones agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development, but Jones said she was compelled to agree that the case was moot.  On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, and McCorvey's appeal ended.

</section>
<section id="12077" fatherid="12070" title="Presidential positions" lv="" priority="-7" level="2">
President Richard Nixon did not publicly comment about the decision. In private conversation later revealed as part of the Nixon tapes, Nixon said "There are times when an abortion is necessary, I know that. When you have a black and a white" (a reference to interracial pregnancies) "or a rape." Harnden, Toby. "President Richard Nixon Said it Was 'Necessary' to Abort Mixed-Race Babies, Tapes Reveal," The Daily Telegraph (2009-06-24).; Nixon was also concerned that greater access to abortions would foster "permissiveness," and said that "it breaks the family."
The Roe decision was opposed by Presidents Gerald Ford,Ford, Gerald. Letter to the Archbishop of Cincinnati, published online by The American Presidency Project. Santa Barbara, CA: University of California (1976-09-10). Ronald Reagan,Reagan, Ronald. Abortion and the Conscience of the Nation (Nelson 1984). and George W. Bush.Bush, George Walker.  "Bush Tells Addicts He Can Identify," Boston Globe, p. A12 (2000-01-22). President George H.W. Bush also opposed Roe, though he had supported abortion s earlier in his career.
Fritz, Sara.  “'92 REPUBLICAN CONVENTION: Rigid Anti-Abortion Platform Plank OKd Policy: Activists opposed to GOP stand wear pink satin armbands in convention hall as a protest. Issue clearly will continue to divide party”, Los Angeles Times (1992-08-18): “President George Bush supported abortion s until 1980, when he switched sides after Ronald Reagan picked Bush as his running mate.”Bush, George Herbert Walker.Remarks to Participants in the March for Life Rally (1989-01-23).  In addition, as governor of California, Ronald Reagan had legalized abortion in 1967.
Jimmy Carter supported legal abortion from an early point in his political career, in order to prevent birth defects and in other extreme cases; he encouraged the outcome in Roe and generally supported abortion s.Carter, James Earl. Larry King Live, CNN, Interview With Jimmy Carter (2006-02-01).  Also see Bourne, Peter, Jimmy Carter: A Comprehensive Biography from Plains to Postpresidency: "Early in his term as governor, Carter had strongly supported family planning programs including abortion in order to save the life of a mother, birth defects, or in other extreme circumstances. Years later, he had written the foreword to a book, Women in Need, that favored a woman's  to abortion. He had given private encouragement to the plaintiffs in a lawsuit, Doe v. Bolton, filed against the state of Georgia to overturn its archaic abortion laws."  Roe was also supported by President Bill Clinton.Clinton, Bill.  My Life, page 229 (Knopf 2004). President Barack Obama has taken the position that, "Abortions should be legally available in accordance with Roe v. Wade."Obama, Barack. "1998 Illinois State Legislative National Political Awareness Test", Project Vote Smart. Retrieved on 2007-01-21.

</section>
<section id="12078" fatherid="12070" title="State laws regarding Roe" lv="" priority="8" level="2">
Several states have enacted so-called trigger laws which "would take effect if Roe v. Wade is overturned.""Blanco signs law that would ban abortions", Reuters via The Peninsula (2006-06-17).  Retrieved 2007-03-26.  Those states include Illinois, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota.Vestal, Christine.
"States probe limits of abortion policy", Stateline.org (2007-06-11).  Additionally, many states did not repeal pre-1973 statutes that criminalized abortion, and some of those statutes could automatically spring back to life in the event of a reversal of Roe.Marcus, Frances Frank.  “Louisiana Moves Against Abortion”, New York Times (1989-07-08).
Other states have passed laws to maintain the legality of abortion if Roe v. Wade is overturned.  Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington.

</section>
</section>
<section id="12079" fatherid="0" title="See also" lv="" priority="-8" level="1">
</section>
<section id="12080" fatherid="0" title="Footnotes" lv="" priority="-9" level="1">
</section>
<section id="12081" fatherid="0" title="References" lv="" priority="-10" level="1">
</section>
<section id="12082" fatherid="0" title="External links" lv="" priority="-11" level="1">
Category:United States Supreme Court cases
Category:1973 in law
Category:United States abortion case law
Category:History of women's s in the United States
Category:United States substantive due process case law
Category:Privacy law
Category:United States Fourteenth Amendment case law

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</document>
