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Law and Famous Trials

Roe V. Wade.

Why is the ruling in Roe v. Wade controversial?

The 1973 Supreme Court decision in the case of Roe v. Wade legalized abortion in the United States and has probably engendered more public controversy than any other legal decision of the late twentieth century. Women’s access to safe abortion continues to be the subject of debate, at issue in legal cases, and has inspired overzealous antiabortion activists to violence against doctors who perform abortions and office workers in women’s health clinics. The seven Supreme Court justices who issued the majority decision became the recipients of thousands of letters of hatred, some of them threatening.

The case was brought as a class-action suit (representing all pregnant women) by 21-year-old Norma McCorvey (1947–), who has since the ruling reversed her feeling and joined the antiabortion camp as a “Right to Life” advocate. But in 1969, under the alias Jane Roe, McCorvey claimed that Texas’s abortion law (on the books since 1859) violated her constitutional rights and those of other women. The other party named in the case was Texas district attorney Henry B. Wade (1914–2001), who argued to uphold Texas state law that punished anyone who gave an abortion. Despite the fact that the ruling in the case would do nothing to help McCorvey, for whom even a favorable decision would come too late to end her unwanted pregnancy, her lawyers, Linda Coffee and Sarah Weddington, agreed to pursue the case as a test. The crux of the plaintiff’s case is best summed up by arguments made before the Supreme Court, when in December 1971, Weddington argued that Texas’s ability to compel women to bear children infringed on a woman’s right to control her own life. It was therefore a violation of the Constitution (the Fourteenth Amendment), which forbids states to “make or enforce any law which shall abridge the privileges or immunities of citizens.” In response to defense claims that the fetus is entitled to protection, Weddington averred, “the Constitution as I read it … attaches protection to the person at the time of birth.” These arguments, and those of the defense, were presented twice to the Supreme Court; after the first presentation the seven justices then seated concluded that such an important decision should not be made until the two newly appointed justices could participate. In October 1972 the case was heard again. As it turned out, the two new judges represented one majority vote and one dissenting vote. The majority decision was read by Justice Harry Blackmun on January 22, 1973: The high court overturned all state laws restricting women’s access to abortions.

The decision was based on the Court’s opinion that existing laws banning abortions had been enacted to protect the health of American women (since abortion had previously been a risky medical procedure) and that with advances in medicine this protection was no longer necessary or valid. The court also agreed that the Constitution’s implied right to privacy, as found in the “Fourteenth Amendment’s concept of personal liberty … or in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision to terminate her pregnancy.” Two justices dissented in the opinion, with Justice Byron White writing that the court had sustained a position that “values the convenience, whim or caprice of the putative mother more than life or the potential life of the fetus.” Nearly three decades after the landmark decision, opinion continues to divide along such lines.



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