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CLASS: LEGAL/ETHICAL ASPECTS OF HC

U.S. Supreme Court

Roe v. Wade, 410 U.S. 113 (1973)

Roe v. WadeNo. 70-18

Argued December 13, 1971

Reargued October 11, 1972

Decided January 22, 1973410 U.S. 113

Primary Holding

A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment.Viability means the ability to live outside the womb, which usually happens between24 and 28 weeks after conception.

Facts

The law in Texas permitted abortion only in cases where the procedure wasnecessary to save the life of the mother. When Dallas resident Norma McCorveyfound out that she was pregnant with her third child, she tried to falsely claim thatshe had been raped and then to obtain an illegal abortion. Both of these effortsfailed, and she sought the assistance of Linda Coffee and Sarah Weddington, whofiled a claim using the alias Jane Roe for McCorvey. (The other named party, HenryWade, was the District Attorney for Dallas County.)McCorvey gave birth to her child before the case was decided, but the district courtruled in her favor based on a concurrence in the 1965 Supreme Court decision ofGriswold v. Connecticut, written by Justice Arthur Goldberg. This concurrence hadfound that there was a right to privacy based on the Ninth Amendment of theConstitution. However, the district court refrained from issuing an injunction toprevent the state from enforcing the law, leaving the matter unresolved.

Attorneys

Linda Coffee (plaintiff)

Sarah Weddington (plaintiff)

Jay Floyd (defendant)

Issues & Holdings

Issue: Whether a plaintiff still has standing to bring a case based on her pregnancyonce she has given birth.Holding: Yes. The mootness doctrine does not bar her case from being heard, eventhough this individual plaintiff's position would no longer be affected, and she didnot have an actual case or controversy. This situation fits within the exception to themootness rule that covers wrongs that are capable of repetition yet evading review.Most cases are not heard through to appeal in a period shorter than a pregnancy, sostrictly applying the mootness doctrine would prevent these issues from ever beingresolved.

Opinions

Majority Harry Andrew Blackmun (Author) Warren Earl Burger William Orville Douglas William Joseph Brennan, Jr. Potter Stewart Thurgood Marshall Lewis Franklin Powell, Jr.

The majority found that strict scrutiny was appropriate when reviewing restrictionson abortion, since it is part of the fundamental right of privacy. Blackmun wasuninterested in identifying the exact part of the Constitution where the right ofprivacy can be found, although he noted that the Court had previously located it inthe Fourteenth rather than the Ninth Amendment. The opinion applied acontroversial trimester framework to guide judges and lawmakers in balancing themother's health against the viability of the fetus in any given situation. In the firsttrimester, the woman has the exclusive right to pursue an abortion, not subject toany state intervention. In the second trimester, the state cannot intervene unless herhealth is at risk. If the fetus becomes viable, once the pregnancy has progressed intothe third trimester, the state may restrict the right to an abortion but must alwaysinclude an exception to any regulation that protects the health of the mother. TheCourt, which included no female Justices at the time, appears to have been confused about the differences between the trimester framework and viability, which are notnecessarily interchangeable.It is interesting to note that Blackmun was particularly invested in this case and theopinion, since he had worked at the Mayo Clinic in Minnesota during the 1950s andresearched the history of abortions there. This may explain why he framed theopinion largely in terms of protecting the right of physicians to practice medicinewithout state interference (e.g., by counseling women on whether to pursueabortions) rather than the right of women to bodily autonomy.

Dissent Byron Raymond White (Author) William Hubbs Rehnquist White criticized the majority's arbitrary choice of a rigid framework without anyconstitutional or other legal foundation to support it. He believed that this aggressiveuse of judicial power exceeded the Court's appropriate role by taking away powerthat rested with state legislatures and essentially writing laws for them. White arguedthat the political process was the appropriate mechanism for seeking reform, ratherthan letting the Court decide whether and when the mother should be a higherpriority than the fetus.

Dissent William Hubbs Rehnquist (Author)Rehnquist expanded on the historical elements of White's argument. He researched19th-century laws on abortion and the status of the issue at the time of both theFounding and the Fourteenth Amendment. His originalist approach led him toconclude that state restrictions on abortion were considered valid at the time of theFourteenth Amendment, so its drafters could not have contemplated creating rightsthat conflicted with it.

Concurrence William Orville Douglas (Author)

More concerned with doctrinal sources than Blackmun, Douglas pointed out more forcefully that the Fourteenth Amendment rather than the Ninth Amendment is theappropriate source of the right of privacy.

Concurrence Potter Stewart (Author)Stewart argued that the right of privacy was specifically rooted in the Due ProcessClause of the Fourteenth Amendment.

Concurrence Warren Earl Burger (Author)Burger felt that two physicians rather than one should be required to agree to awoman's request for an abortion.Case CommentaryThe Court was praised in many circles for its progressive attitude toward evolvingsocial trends, even though the decision was framed in paternalistic language andseemed more focused on protecting physicians than women. However, manycommentators have viewed its decision as a prime example of judicial "activism," aterm that refers to when the Court is seen to infringe on the authority of otherbranches of government.. A magnet for controversy to the current day, Roe has beenchallenged consistently and lacks support from many current members of the Court.The trimester framework proved less workable than the majority had hoped, anddecisions such as Planned Parenthood v. Casey have eroded what initially seemedlike a sweeping statement in favor of women's rights. Many states that oppose Roehave enacted laws that will go into effect in the event that it is overturned. CaseU.S. Supreme CourtRoe v. Wade, 410 U.S. 113 (1973)

Roe v. WadeNo. 70-18Argued December 13, 1971Reargued October 11, 1972Decided January 22, 1973410 U.S. 113SyllabusA pregnant single woman (Roe) brought a class action challenging theconstitutionality of the Texas criminal abortion laws, which proscribe procuring orattempting an abortion except on medical advice for the purpose of saving themother's life. A licensed physician (Hallford), who had two state abortionprosecutions pending against him, was permitted to intervene. A childless marriedcouple (the Does), the wife not being pregnant, separately attacked the laws, basingalleged injury on the future possibilities of contraceptive failure, pregnancy,unpreparedness for parenthood, and impairment of the wife's health. A three-judgeDistrict Court, which consolidated the actions, held that Roe and Hallford, andmembers of their classes, had standing to sue and presented justiciablecontroversies. Ruling that declaratory, though not injunctive, relief was warranted,the court declared the abortion statutes void as vague and overbroadly infringingthose plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does'complaint not justiciable. Appellants directly appealed to this Court on the injunctiverulings, and appellee cross-appealed from the District Court's grant of declaratoryrelief to Roe and Hallford.Held:1. While 28 U.S.C. 1253 authorizes no direct appeal to this Court from the grant ordenial of declaratory relief alone, review is not foreclosed when the case is properlybefore the Court on appeal from specific denial of injunctive relief and thearguments as to both injunctive and declaratory relief are necessarily identical. P.123.2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.

(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy didnot moot her suit. Litigation involving pregnancy, which is "capable of repetition, yetevading review," is an exception to the usual federal rule that an actual controversy[114]must exist at review stages, and not simply when the action is initiated. Pp. 124-125.(b) The District Court correctly refused injunctive, but erred in granting declaratory,relief to Hallford, who alleged no federally protected right not assertable as adefense against the good faith state prosecutions pending against him. Samuels v.Mackell, 401 U. S. 66. Pp. 125-127.(c) The Does' complaint, based as it is on contingencies, any one or more of whichmay not occur, is too speculative to present an actual case or controversy. Pp. 127-129.3. State criminal abortion laws, like those involved here, that except from criminalityonly a life-saving procedure on the mother's behalf without regard to the stage ofher pregnancy and other interests involved violate the Due Process Clause of theFourteenth Amendment, which protects against state action the right to privacy,including a woman's qualified right to terminate her pregnancy. Though the Statecannot override that right, it has legitimate interests in protecting both the pregnantwoman's health and the potentiality of human life, each of which interests grows andreaches a "compelling" point at various stages of the woman's approach to term. Pp.147-164.(a) For the stage prior to approximately the end of the first trimester, the abortiondecision and its effectuation must be left to the medical judgment of the pregnantwoman's attending physician. Pp. 163, 164.(b) For the stage subsequent to approximately the end of the first trimester, theState, in promoting its interest in the health of the mother, may, if it chooses,regulate the abortion procedure in ways that are reasonably related to maternalhealth. Pp. 163, 164.(c) For the stage subsequent to viability the State, in promoting its interest in thepotentiality of human life, may, if it chooses, regulate, and even proscribe, abortionexcept where necessary, in appropriate medical judgment, for the preservation ofthe life or health of the mother. Pp. 163-164; 164-165.

4. The State may define the term "physician" to mean only a physician currentlylicensed by the State, and may proscribe any abortion by a person who is not aphysician as so defined. P. 165.5. It is unnecessary to decide the injunctive relief issue, since the Texas authoritieswill doubtless fully recognize the Court's ruling[115]that the Texas criminal abortion statutes are unconstitutional. P. 166.314 F. Supp. 1217, affirmed in part and reversed in part.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., andDOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER,C.J., post, p. 410 U. S. 207, DOUGLAS, J., post, p. 209, and STEWART, J., post, p. 167,filed concurring opinions. WHITE, J., filed a dissenting opinion, in which REHNQUIST,J., joined, post, p. 221. REHNQUIST, J., filed a dissenting opinion, post, p. 171.

Dobbs v. JacksonWomen's HealthOrganization

PETITIONER: Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al.

RESPONDENTJackson Women's Health Organization, et al.

DOCKET NO.19-1392

DECIDED BYRoberts Court

LOWER COURTUnited States Court of Appeals for the Fifth Circuit

CITATION597 US _ (2022)

GRANTEDMay 17, 2021

ARGUEDDec 1, 2021

DECIDEDJun 24, 2022

ADVOCATESScott G. StewartFor the PetitionersJulie RikelmanFor the RespondentsElizabeth B. PrelogarFor the United States, as amicus curiae, supporting the Respondents

Facts of the case

In 2018, Mississippi passed a law called the Gestational Age Act, whichprohibits all abortions, with few exceptions, after 15 weeks gestational age.Jackson Womens Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors filed a lawsuit in federal district courtchallenging the law and requesting an emergency temporary restraining order(TRO). After a hearing, the district court granted the TRO while the litigationproceeded to discovery. After discovery, the district court granted the clinicsmotion for summary judgment and enjoined Mississippi from enforcing thelaw, finding that the state had not provided evidence that a fetus would beviable at 15 weeks, and Supreme Court precedent prohibits states frombanning abortions prior to viability. The U.S. Court of Appeals for the FifthCircuit affirmed.

Question

Is Mississippis law banning nearly all abortions after 15 weeks gestationalage unconstitutional?

Conclusion

The Constitution does not confer a right to abortion; Roe v. Wade, 410 U.S.113, and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, areoverruled. Justice Samuel Alito authored the majority opinion of the Court.The Constitution does not mention abortion. The right is neither deeply rootedin the nations history nor an essential component of ordered liberty. Thefive factors that should be considered in deciding whether a precedent shouldbe overruled support overruling Roe v. Wade and Planned Parenthood v.Casey: (1) they short-circuited the democratic process, (2) both lackedgrounding in constitutional text, history, or precedent, (3) the tests theyestablished were not workable, (4) they caused distortion of law in otherareas, and (5) overruling them would not upend concrete reliance interests.Justices Clarence Thomas and Brett Kavanaugh concurred.Chief Justice John Roberts concurred in the judgment.Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.

2. Who were the judges that decided for the plaintiff in Roe?

3. What was the basis upon which they decided the Roe case?

4. What part of the Constitution did they say might support this? What did the Dobbs court say about this?

5. What was the trimester system that the judges espoused in Roe?

6. What additional protection did justice Blackmun enumerate in his decision on Roe?

7. What was the Roe we are going dissent based upon?

8. Which justices wrote concurrence opinions?

9. Why did the court say it was unnecessary to decide on the issue of injunctive relief?

10. In the most current opinion Dobbs V Jackson, what did the majority justices decide the case on?