The legal origin of Roe v. Wade as a household name


With the new appointment of a new Supreme Court Justice with the announcement of the retirement of Justice Kennedy, many individuals are worried and hopeful about the future regarding a particular Supreme Court decision that has left the nation squarely divided in Roe v. Wade.

This article is to inform on why the decision of Roe v. Wade has been attacked so much and specifically on how the decision was decided from a legal perspective and certain concerns as to the opinion of the court to show why from a legal perspective it continues to be attacked so much and the issues it arises of the holding.

The holding of the case is that a mother has an absolute right to choose to terminate her pregnancy without state intervention at the first trimester and that state’s rights to intervene and legislate abortions are stronger as time in the pregnancy progresses in light of a fetus’ ability to survive on its own outside the mother. It hinges on what is considered a person under the constitution and the rights of a person as to the rights of a fetus.

This is a very cliche topic that most High Schoolers choose or most High School teachers ban from using in an argumentative paper.

As there are both sides and arguments to this topic and since it is written from a legal perspective as to why it continues to be attacked so much and focuses on the legal deficiencies of the opinion from a perspective it may come off as politically charged perspective from those that oppose abortion as many of the legal arguments in the majority opinion and from the dissenting opinions focus on factual claims related to the mother and the fetus and as this remains to be a politically charged topic.

Hopefully though the article informs both sides the legal underpinnings at issue and as it is applied to the constitution as well as the procedural issues instead of an analysis based on pure opinion based on personal, religious, political and medical beliefs. So far in the nomination process, nominee Brett Kavanaugh says that he would follow the precedent of Roe v. Wade and there seems to be less of a concern about his ruling on such an opinion than most other cases.

Looking into the future, if Mr. Kavanaugh is selected and the court does follow the precedent of Roe v. Wade, the only issue would most-likely be determining the vitality rate of the fetus as noted in this article of prior decisions bought before the case on the same issue as conservative states have created a tactic of passing legislation with claims that vitality begins at inception as a means to further reduce the time that a mother has as an absolute right to an abortion without state intervention.

History of the Case

The main individual in the case was Jane Roe but other individuals were parties to the action as well including a married couple and a doctor. She was 22 in 1969 and was living in Texas. Jane Roe was her court name to keep her name private, her actual name was Norma McCorvey who died in February of 2017 according to ABC news. Jane Roe first claimed she was raped from ABC report but then later claimed that it was a lie. She had given up her second child for adoption and her first child was being raised by her mother.

Preliminary Procedural issues decided by the court

The first issue with the case from a legal perspective is legal standing. At inception of the opinion, the court wrestles on whether or not the case is even proper before the court. In order for someone to have standing, they must have suffered an injury in fact. One of the issues was that the Appellant, Roe was only seeking declaratory relief from a state statute. The statue was a Texas statute that criminalized the attempt to procured or attempted by medical device except for the purpose of saving the life of the mother.

The issue with standing, is that an individual must suffer an injury in fact in order to have standing to bring an action. If there has been no injury then there can be no remedy. Here, Roe had not alleged that she sought an abortion or that she was charged with a crime for seeking an abortion. As a result, if she had not been charged with the statute, then she would have no redressable injury. The court however, claimed that just the statute itself created an injury. However, if Roe had sought an abortion and was not charged with a crime, then she would not have suffered an injury.

There was also a question on whether the statute was vague as to whether or not it was aimed at doctors or at the actual individuals conducting the abortions. A doctor charged with crimes who also sought declaratory relief had his case dismissed by the U.S. Supreme Court in the decision as he had not claimed that the statute violates any specified constitutional rights.

As declaratory relief is to seek an order from the court to stop an entity, which in this case, was the state of Texas from imposing the statute against her. Again, there was no relief that could be sought here as the statute was not imposed against her at that time. Also, there were issues on whether or not she was pregnant or had an abortion at the time the action was filed and at the hearing. The other side claimed that if she was no longer pregnant, the issue was moot, because again, there was no reason to ask for relief at that time, because it had already passed. The court reasoned that despite this failures, given the special nature of pregnancies, and its short amount of time, they claimed that this was a special exception to the rule.

This again raises question as to standing. Roe was asking for declaratory judgment. If the purpose was for declaratory judgment, and the purpose was already defeated, then there was no reason to no longer have an action pending in court. With that, from a legal standing perspective, this case should have never made it past the standing requirements. A case where an individual actually had a crime imposed against them and suffered an actual injury in fact should have been the type of case that would have made it through the gates of the U.S. Supreme Court.

Statutory Interpretation

Also, Plaintiffs bought claims that the Texas State Statute was vague, in that it did not specify if the action was only for un-wed couples, single couples or doctors. A State statute can be stricken if it is so vague and ambiguous that the enforcement would come out with arbitrary results. The Supreme Court should have decided that the statute was unconstitutional for vagueness instead of the decision they decided prior.

B. Opinion of the Majority

History of abortion

The U.S. Supreme Court also went through the history of abortion that went way back to the times of persia and egypt as to their laws on abortion and the laws of Great Britain at at the time the constitution was created. They determined that the laws back then were had more leeway for women than the laws of the 19th century. (The law was written in 1854 the constitution was ratified in 1788). The court thereafter goes into the history of abortion and the medical differences from the past to today and different types of anesthesia that exist today.

Invasion of Rights

The main claim that the U.S. Supreme Court focused on was whether or not the statute invaded a constitutional right of Roe possessed by a pregnant woman. The court thereafter goes into the history of abortion as noted above. They thereafter note that the constitution does not explicitly mention the right to privacy.

However, they found that other courts found certain rights such as search and seizures, in the fourth and fifth amendment, rights to privacy in the first amendment, or the concept of liberty under the 14th amendment. They also noted other precedents noted the right to procreation, activities related to marriage and contraception, family relationships, and child rearing and education.

The court found that the right reserved to the people under the 9th Amendment and under the 14th Amendment were broad enough to cover the rights of a woman to make a decision on whether or not to terminate her pregnancy. They found that maternity may force a woman into a distressful life and future as well as psychological harm and mental and physical health may be taxed by child care as well as the stigma of an unwed mother may be involved.

However, the court also noted that the state has an interest in protecting potential life and the term of the pregnancy becomes more compelling as the term goes on.

The U.S. Supreme Court also determined that the word, “Person” under the 14th Amendment does not include the unborn.Texas argued that life began at conception. Under U.S. Constitutional law, a state cannot infringe on a constitutional right unless it has a compelling interest. The court thereafter noted that the state has a compelling interest to interfere at the third trimester. The court concluded this on where a fetus could potentially survive outside the mother’s womb at a certain date known as the “viability” stage based on current medical claims.

C. Dissent of two U.S. Justices

Two U.S. Justices dissented, Justice Rehnquist and Justice White. Justice Rehnquist noted that there were no facts to indicate that Roe was in her first trimester of pregnancy that would grant her relief from the court as he noted prior precedent that indicated that such was needed under Moose Lodge v. Irvis, 407 U. S. 163 (1972); Sierra, Club v. Morton, 405 U. S. 727 (1972). He noted that the opinion of the majority did not implicate that the state statute was unconstitutional in the third latter stages of pregnancy but noted that it made it so the state could make no restraints in the first trimester.

He also notes that going to a physician for an abortion does not implicate privacy. He also notes that liberty is broad under the 14th Amendment, but the deprivation is only made without due process of law. He also noted that the court having to determine what the state can and can’t do in each trimester created the judicial branch legislating from the bench. He also noted since there have been restrictions in the past on abortions, that it cannot be a liberty so rooted into the fundamental traditions of the people.

Justice White, not only dissented, but attempted to overrule the case in later opinions. Justice White noted. He also noted that there was no evidence of Jane Roe being in her first trimester. He also noted concerns that the constitution with the new opinion that “The United States values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus, the constitution, and guarantees abortions abortions against any state laws or policy seeking to protect the fetus from abortion not prompted by more compelling reasons of the mother.

He notes that there is no language or history of the constitution to support the judgment and that the court fashioned a new constitutional right for pregnant mothers with scarcely any reason or authority for its action. He noted that the people and the states are disentitled to weight the relative importance of the development of the fetus against the spectrum of the impacts on the mother. He also noted that the power used was an improvident and extravagant exercise of the power of judicial review that the constitution extends to the court.

He noted he could not join in interposing a constitutional barrier to state efforts to protect human life and that the issue should have been left to the people and the political processes the people have devised to govern their affairs. He noted that the state was not unconstitutional with the purpose of denying individuals abortions who seek to serve only their convenience rather than their life or health.

Justice White also uses very little precedent to support his position and cites United States v. Vuitch, 402 U.S. 62 (1971). Individuals claim that Justice White acted more out of personal opinion instead of from a legal standpoint given his attempts to overturn the decision in later opinions.

D. Opinions after Roe v. Wade

Thereafter, in later opinions by the U.S. Supreme court the “fight” in this battle has been activists attempting to slide the the viability stage to a lower point due to increases in medical advancements that can allow a fetus to survive longer and the viability stage has been lowered to earlier stages as a result which as Justice Renquist predicted, turned the U.S. Court to legislate the matter from the bench. Right now, conservative states are passing laws with claims that viability occurs at inception or a very early stage of the pregnancy and there is litigation in the works right now that may likely land at the front steps of the U.S. Supreme Court shortly.

E. Legal issues related to the opinion

With that, the other legal issues with the court opinion, is whether or not the issue brought to the Supreme Court was a legal question to be decided by the courts or was it a question to be decided by the legislature. Many legal justices such and Felix Frankfurter preached judicial restraint, meaning that the U.S. Supreme Court should stay out of political questions. The issue with this case was that it was a highly hot topic among the states.

The reasons why the issue is such a hot topic is because there are two competing rights at play. There are the rights of the fetus and there are the rights of the mother. The competing interest led to the Supreme Court to define what a person was, which was not a unborn child. The issue here as to a political question, is that the court did not dig through tremendous amounts of U.S. Supreme Court law. Instead, they dug through the history of abortion and the medical evidence of abortion. If the U.S. Supreme Court would have only decided the statute on vagueness, that would have been an issue and claim that the court would have had more validity on in addressing the issue.

i. Rights of married couples and prior decisions the majority relied on

The U.S. Supreme Court admitted that the constitution did not explicitly mention the right to privacy. There was also no prior decision on point that dealt with the decision of a un-wed mother and her right to choose. The closest decision that was related was a case called Griswold v. Connecticut, however, that case dealt with an issue where a law outlawed the use of contraceptives and the court found that there was a right to privacy for married couples which went along with the right to marry under Loving v. Virgina.

Consequently, under the same line of reasoning, under adoption law, the U.S. Supreme Court has found that an unwed biological father has less rights than a married couple and must jump through additional hoopes made by the court in order to intervene on an adoption compared to a married father.

The law is setup to where if a married mother conceives with a man outside of wedlock, that the father outside of wedlock has no parental rights to that child and that the married father does not have to go through any legal proceedings to gain parental rights of the child and the law assumes that he is the father of the child.

This is even true in the state of Utah if a mother conceives before the marriage. If she conceives nine months prior and the child is born minutes or days after the wedding, the law recognizes the wed father as the child even though there is clear evidence to the contrary and the father has no recourse to claiming parental rights with the child.

Even the most recent Supreme Court decision on gay marriage is more sound on precedent than Roe v. Wade is since there was precedent more on point that marriage was a fundamental right in Loving v. Virginia. However, Loving v. Virginia was focused on two fundamental rights, the right not to be discriminated based on race and the right to marriage as Virginia has passed a law that did not allow interracial marriages between caucasians and African Americans.

So also, there are issues with the actual precedent and law that the U.S. Supreme Court relied on. They relied on precedent that only specifically related to married couples and there is also law that demonstrates that unmarried couples are specifically excluded from the rights that married couples hold.

However, in a concurring opinion, Justice Stewart noted the discrepancy, and noted from precedent that Liberty is a broad term and that the right to raise and rear children should be applied to both married and unmarried couples on the decision to raise and rear a child. However, this stance has not been held in other related holdings but for the right of a step-father and his rights to children where the biological parents are not in the picture and a minor child and their rights to inheritance to biological parents.

ii. Enumerated rights, actions of abortion and the boundaries of right to privacy

Also the other rights to privacy that the U.S. Supreme Court mentions are rights that are explicitly enumerated in the U.S. Constitution, namely the first, fourth and fifth constitution. There was no right in the constitution that noted a woman’s right to make a decision to terminate her pregnancy. The issue with this as well is there are concerns that this upheld right hinges on giving a constitutional right to a criminal act.

In many states, including the state of California, where it was upheld constitutional to charge an individual of first degree murder for killing a fetus by an actor. So a man could be charged with first degree murder which occured in that case for intentionally killing a fetus and a woman on the other hand hand constitutional protections for intentionally making such a decision.

This raises questions as what rights to privacy are protected? Should parents be protected from being ticketed for driving their kids around without car seats? For not taking them to school? For leaving them in the house alone? For having the state come in and take their child for drug abuse or neglect, sometimes even when the child is born and they test the umbilical cord positive for cocaine? Should the state get involved in a matter regarding domestic violence?

It also raises the question of an unwed father’s rights. Say a father says no to abortion and the father is willing and able to raise the child and the mother, without telling the father goes and gets an abortion. Both parties made the decision to enter into a sexual relationship or encounter and should not both parties have the right to make the decision to determine the future of the unborn child? Would this not violate the father’s right to procreation and to child rearing?

This also raises questions as to whether or not the U.S. Supreme Court created a right under the constitution that conflicts with the Equal Protection law under the 14th Amendment and created a right that discriminates against males and their say in abortions.

Also as noted in the dissent and in other opinions, the right to privacy is focused on what occurs within the private intimate confines of the home. The right of privacy extends to one’s choice of procreation and child rearing in the home, however, if one goes to a doctor and asks a doctor to get involved in the personal affairs of an individual of a decision they made how can that privacy right extend that far?

That also raises additional questions as to the scope of where that right extends as again, that could extend to someone driving on a freeway in their car and to their luggage at an airport and to intimate actions of expression made in public.

iii. Other rights that are not absolute rights

It also raises question as to fairness as abortion is almost an absolute right at the first trimester. However, there that are not absolute rights and raises questions under this precedent such as, do I have a right to my property if I decide not to pay taxes on it? Do I have a right to my property if I decide not to pay the mortgage? If I have a right to searches and seizures absent a valid warrant, why do I have to go through security screening at the airport? At the courthouse? If I have a right to searches and seizures then how can the government still search me and obtain evidence and information for me and it only applies if they use it against me in a court of law? If I have a right to searches and seizures then how come the only remedy at a criminal case is the suppression of the unlawfully seized evidence? If I have a right to raise and rear my children then how can the government deport me and separate my family? Why can my car get impounded if I am caught with a DUI?

iv. Conflicting rights

This also raises questions as to religious beliefs and whether or not the opinion did not adhere to one’s beliefs as it is applied to abortion as abortion is a central focus as to many’s religious beliefs and not personal beliefs. Since individuals are so divided as to what is right and what is wrong, the U.S. Supreme Court also came in and said what is right morally which also raises a lot of issues and questions as to freedom of expression and freedom of speech and imposing on the public public opinion.

The issues raised on the political side and noted by Justice Renquist, is that it authorized and promoted many things that individuals thought to be immoral such as sex outside of marriage or having sex with multiple individuals as well as the spread of diseases from such interactions and incentivized individuals more to engage in such actions without the repercussions and promiscuity without taking precautionary measures prior, the actions of which involve the creation of life. The actions of which can undermine a society and the focus childrearing of a society.

The Supreme Court also undermined and downplayed one of the most important aspects that the court outlined in other opinions which is the raising and rearing of children and families and put a personal choice of an individual above that fundamental right, meaning that families and boyfriends and spouses and engaging in intimate affairs with them and creating a relationship with them was also trumped by the choice of the mother. It also failed to recognize the regrets and remorse and psychological repercussions that it might have on a mother who has an abortion and regrets making that decision the rest of their life which is also contrary to the reasoning of the court.

The state would have an interest in protecting that decision and the ramifications as well and should be allowed to intervene and help the mother make an informed decision prior to deciding to have an abortion. Many mothers who choose to adopt choose to forego the adoption once they have their child, the choice of which a mother who has an abortion does not have. It also infringes on other individual’s right to choose to adopt an unwanted child as their options to do so are lessened by the opinion.

A more sound opinion from the court could have been one that focused more on the statue at hand instead of the political issue at hand. The statute was a criminal statute that made it a crime to perform an abortion. The issue should have been instead then whether or not one’s liberty was deprived from performing an abortion and being charged with a crime to do so not whether or not the state could limit abortions.

Also, each case is a case-by-case basis as some individuals make the choice to have an abortion that many individuals may thing is not conducive to a healthy society and some individuals may make the choice to have abortions that are more appropriate. From that, the court, instead of making a sweeping decision, should have used discretion and tailored their decision specifically to the Texas statute in noting that it is too broad as it may infringe on societal interests and decisions that are sound as well as societal interests that are not sound.

However the issue there to is if the state gets involved in creating such legislation, if they overimpose, it is harder to jump over those hurdles. Here, the Supreme Court made the state have the hurdle of overimposing but the decision may have been a little too strong to the states. However, they could have just stated the statute overimposes on some possible interests that may be sound in liberty interests and tell the state of Texas to go back and re-work the statute based on possible interests instead of stating where and when the state can impose.

This also raises the question as to the right to procreation which is a competing interest as to the right to terminate a conceived child, if there is a right to procreation, how can there be a right to terminate a conceived child? This also again conflicts with the father’s rights and his decision and right to procreation and whether or not to have an abortion. The decision as a result, should have factored in the father and his constitutional right as well as whether or not the right and decision to procreate trumps the right to go back on that decision after the decision is made in certain circumstances.

v. The fetus would be on equal ground with the Supreme Court’s reasoning looking toward the future

The Supreme Court’s reasoning for the right of the mother to decide whether or not to have an abortion is the possible toll that it may have on the mother in raising the child. The issue here too is the Supreme Court looks toward the future, when the actual child is born and weighing the interest of the mother over the child. If the Supreme Court is looking toward the future to determine the toll of the mother, then the future of the unborn child, when the child is an actual “person” should also be put into consideration as well. The Supreme Court takes that consideration out of the equation.

vi. Some of the reasoning and concerns raised by the U.S. Supreme Court are moot today.

In today’s day and age where more children are born out of wedlock, the stigma concern the Supreme Court raised is now moot. There are also adoption options where couples or on a long waiting list to adopt which also makes the issue of the mother subjecting herself to a life of raising an unwanted child moot.

vii. Does the statute create a right that the state now assists on?

Wth the invasion of rights, there has to be an actual invasion from the state of such rights. So again, if the state only creates a statute that criminalizes doctors for attempting an abortion or does not provide state funding to individuals who decide to get an abortion is that an invasion of private rights? The issue is too that making such a right can also create a unintentional consequence of the state providing assistance to that right. Under the 4th Amendment, the state cannot invade one’s privacy without a warrant, but it does not call for the state to assist an individual financially from not issuing warrants or invading one’s privacy or curtailing the police from attempting to obtain a warrant.

Also, if an individual attends a state hospital or federal VA hospital, that would mean that doctors would be forced to perform abortions as not doing so would be state action infringing on an individual’s rights. This also raises questions as to a doctor’s and states rights not to perform abortions if an action is brought against them that failing to perform an abortion violates one’s rights.

viii. The arbitrary claims of no protection toward the fetus not based in law.

The court in the opinion created an arbitrary ruling in claiming that the fetus has no protections but also in the same vein claiming the fetus has protections as the term extends and that the individual’s protections lesson as the time moves on. If it is a sliding protection based on time how can it be an actual protection? It is also a protection that was based on science and medical claims at that time, it was not a protection that was based on absolute law which has changed through time.

ix. All of the issues and competing issues were not addressed by the court and effects on the constitution.

The Supreme Court did not weight the competing interest and claims properly in this case and only focused on arguments that supported their claims. This in the end, created a law that was judicially voted on by Supreme Court justices instead of the Supreme Court interpreting the law. If there was no right for a women to decide to terminate her pregnancy under the constitution then the Supreme Court should have left it at that. The issue now is whether or not the Supreme Court unlawfully amended the constitution as well.

It is difficult to amend the constitution and requires 2/3 votes from Congress as well as going through the veto power of the President which is also a reason this issue has become such a hot topic as it is still a very political issue. It also raises the question as to what restraint and what standards are need to find a constitutional right by the court? Given the sweeping effect and legal ramifications, the courts need to take a finer analysis as to what a fundamental right is. The concerns raised by the U.S. Supreme court as to the inconvenience of the mother does not seem to be embedded under the terms of fundamentalism and as noted by Justice White and the majority limits on abortion have been in legislative bodies for thousands of years.

x. The right of the state to govern the health and welfare of its citizens.

Under the 10th Amendment, it gives the power to the states to determine the health and welfare of its individuals, not the federal government. So in reality, it also could have arguably been an issue that was not for the federal courts to decide but instead the states in relation to unborn fetuses, and the mental and physical well-being of the mother and in relation to the states.

F. Conclusion

In the end, the decision was not sound as to the individual having a redressable claim that the court could provide at the time. It was not sound as it was not a decision made on the interpretation of the statute and its vagueness made in law. It was not sound as it was not a decision made based on precedent and law, or law that was remotely related, that defined a constitutional right for an unwed mother to terminate her pregnancy. It was also not sound it law as it noted enumerated rights in the constitution to privacy and this case was not an enumerated right. It was not sound as it was not a decision based on actual law and was instead based on the history of abortions and the ability to have abortions in the past (they did not note how many women actually had abortions in the past). It was not a sound decision as the actual rationale for the right was politically charged the rationale and did not contemplate other’s rights, other limitations to constitutional rights and freedoms and does not stand true today. It was not sound as it was a decision that looked toward the future of the mother but did not allow to look toward the future of the fetus for the rationale and weight such interest. The decision was also not sound as it created a right that conflicted and competed with criminal statutes and other constitutional rights. The decision was also not sound as it was based on medical claims and not in law. It was a factual determination like a trial instead of a legal determination on appeal for review of a mistake in law at the trial level The decision was also politically charged and should have been something that was left for the legislature to decide instead of the Supreme Court.

For these reasons, the case is still a hot topic as there are concerns as to whether or not this right the Supreme Court granted as fundamental under the constitution was a stretch.

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