Relevance of the Original Argument for Roe v. Wade in 2013

Caryn Dudarevitch
Posted July 3, 2013 from United States

No woman wants to have an abortion. It is a gut-wrenching decision based on her personal situation and, given her options, it is the most responsible. It is an unpleasant procedure, at best. No other person can pass judgment on another’s decision - certainly, one that a woman has a constitutional right to make. For 40 years, women in the United States have been protected from state interference in their right to obtain an abortion, although, recent state interference would have one believe otherwise.

Jane Roe (not her real name) was a resident of Texas in the early 1970’s and sought to terminate her pregnancy through abortion; however, Texas law permitted abortions only in the case of saving a woman’s life and that exception was vaguely defined. Denied an abortion by several doctors, she was forced to file a lawsuit “on behalf of herself and all those women who have in the past at the present time or in the future would seek termination of a pregnancy.” Roe’s case was heard by the U.S. District Court for the Northern District of Texas law and, although the court denied a request for an injunction so that Roe could receive an abortion, “the court declared that the Texas abortion law was unconstitutional for two reasons: First, that the law was impermissibly vague, and, second, that it violated a woman’s right to continue or terminate a pregnancy.”

Roe’s case, along with that of John and Mary Doe and later joined by Doctor Hallford, a physician intervener who was facing criminal prosecution for performing an abortion, was brought before the United States Supreme Court and was first argued on December 13, 1971. The question before the Court, “Does the Constitution embrace a woman's right to terminate her pregnancy by abortion?” In her argument for the appellate court before the Supreme Court , Attorney and former Texas state legislator, Sarah Weddington stated the below:

• It’s so often the poor and the disadvantaged in Texas who are not able to escape the effect of the law. • And it was exactly the absence of the court granting an injunction against future prosecutions which had resulted in the irreparable injuries these women have suffered. • In Texas, the woman is the victim. • The State cannot deny the effect that this law has had on the women of Texas. • Certainly there are problems regarding even the use of contraception. • Abortion now for a woman is safer than childbirth. • In the absence of abortions, or legal medically safe abortions – women often [resort] to the illegal abortions, which certainly carry risk of death, all the side effects such as severe infections, permanent sterility, all the complications that result. • Texas, for example, it appears to us, would not allow any relief at all, even in situations where the mother would suffer perhaps serious physical or mental harm. There is certainly a great question about it. • If the pregnancy would result in the birth of a deformed or defective child, she has no relief.” • Regardless of the circumstances of conception, whether it was because of rape, incest, whether she is extremely immature, she has no relief. • I think it’s without question that pregnancy to a woman can completely disrupt her life. • Whether she’s unmarried; whether she’s pursuing an education; whether she’s pursuing a career; whether she has family problems; all of the problems of personal and family life, for a woman, are bound up in the problem of abortion. • And, of course, this is especially hard on the many women in Texas who are heads of their own households and must provide for their already existing children. • And, obviously, the responsibility of raising a child is a most serious one, and at times an emotional that must be made, cannot be denied. • So, a pregnancy to a woman is perhaps one of the most determinative aspects of her life. • It disrupts her body. • It disrupts her education. • It disrupts her employment. • And it often disrupts her entire family life. • And we feel that, because of the impact on the woman, this certainly and as far as there are any rights which are fundamental is a matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or to terminate her pregnancy. • I think the question is equally serious for the physicians of our State. They are seeking to practice medicine in what they consider the highest method of practice.

The U.S. District Court’s decision regarding “the right to determine whether or not to continue a pregnancy” was grounded in the Ninth Amendment of the United States Constitution, the reservation of the rights of the people who had not been specifically been mentioned in the Constitution. Ms. Weddington continued, “I think the Fourteenth Amendment is an equally appropriate place, under the rights of persons to life, liberty, and the pursuit of happiness. I think that in so far as ‘liberty’ is meaningful, that liberty to these women would mean liberty from being forced to continue the unwanted pregnancy.”

“I think, in so far as the Court has said that there is [an uncertainty] that exists to encompass the entire purpose of the Constitution, that I think one of the purposes of the Constitution was to guarantee to the individual the right to determine the course of their own lives. Insofar, as there was, perhaps, no compelling state interest and we allege there is none in this case that, there again, that the right fits within the framework of the previous decisions of the Court.”

A subsequent argument was heard by the U.S. Supreme Court on October 1, 1972, and Sarah Weddington argued the following points.

• In fact, we’ve pointed out in our supplemental brief filed here that there had been something like 1,600 Texas women who have gone to New York city alone for abortions in the first nine months of 1971. In addition, I think the Court would recognize there are many women going to other parts of the country. • As to the women, this is their only forum. They are in a very unique situation for several reasons. First because of the very nature of the interest involved, their primary interest being the interest associated with the question of whether or not they will be forced by the state to continue an unwanted pregnancy. • Certainly, we cannot say that there isn’t a constitution so stated the right to abortion but, neither is there stated the right to travel or some of the other basic rights that this Court have held are under the United States Constitution. • Griswold, of course, is the primary case holding that the State could not interfere in the question of whether or not a married couple would use birth control and, since then, the Courts have – this Court, of course, has held that the individual has the right to determine whether they are married or single, whether they would use birth control.

Regarding a decision in a Connecticut case, Abele v. Markel, the presiding judge, Judge Newman, noted that, “no decision of the Supreme Court has ever permitted anyone’s constitutional right to be directly abridged to protect a state interest which is subject to such a variety of personal judgments.”

• To oppose such a statute, the Court said, would be to permit the state to impose its view of the nature of a fetus upon those who have the constitutional right to base an important decision in their personal lives upon a different view. • Again, this is a very special type case for the women because of the very nature of the injury involved. • It is an irreparable injury. • Once pregnancy has started, certainly this is not the kind of injury that can be later adjudicated. • It is not the kind of injury that can later be compensated by some sort of monetary reward. • These women who have now gone through pregnancy and the women who continue to be forced to go through pregnancy have certainly gone through something that is irreparable, that can never be changed for them. • It is certainly great and it is certainly immediate. • There is no other forum available to them. • The state has alleged and [its] only alleged interest in the statute is the interest in protecting the life of the unborn. • If the state could show that the fetus was a person under the Fourteenth Amendment or under some other amendment or part of the constitution, then you would have the situation of trying – you would have a state compelling interest which, in some instances, can outweigh a fundamental right. This is not the case in this particular situation. • It depends on saying that the woman has a fundamental constitutional right and that the state has not proved any compelling interest for regulation in that area. Even if the Court, at some point, determined the fetus to be entitled to constitutional protection, you would still get back into the weighing of one life against another.

On January 27, 2013, the United States Supreme Court “held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling.”

In the end, the decision of the Supreme Court in response to Roe v. Wade remains intact in 2013 with the exception of a 1992 Supreme Court case, Planned Parenthood v. Casey, which modified the limit to “viability of the fetus” determined to be 22-23 weeks. I would suggest that our lawmakers revisit the original arguments offered in support of Roe v. Wade as their relevance to today’s society is critical to understand. Clearly, in the case of Texas and across the United States this year, personal opinions and partisan politics are much more valued above any individual’s constitutional rights.

**Note that all quotes in this article have been cited from "ROE v. WADE," The Oyez Project at IIT Chicago-Kent College of Law, accessed June 29, 2013,

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