Roe V. Wade: 40 years Part 1

In 1969, a single woman by the name of Norma L. McCorvey was pregnant with her third child, whom she wanted to terminate in an artificial abortion. In Dallas Texas however, where she was at the time, it was against the law for an abortion to take place except in case of rape and incest.¹ Under the law it was a criminal action. She attempted to plead rape, but there was no police report to substantiate her claim. Miss McCorvey was denied, and filed a law suit. The defendant was Dallas County District Attorney Henry Wade.

The case was argued before the Supreme Court on December 13, 1971, and then again on October 11, 1972, on January 22, 1973, the case was decided, with the majority decision of 7 to 2 ruling in favor of “Roe".  The name Roe was taken from her alias Jane Roe.

Justice Blackmun wrote the majority decision, in which he stated aptly:

“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.”²

Miss Roe had stated that she had a constitutional right to privacy, thus insuring her the right to “terminate” any unwanted pregnancy.³ Her physician also claimed he had the right to practice medicine under the constitution, and that he had a fundamental right to give abortions.⁴ The district court held that the "fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment,"⁵

To sum up the argument, they had a right to abort.

The doctor’s complaint was dismissed as being meaningless to the case. The doctor was already in trouble with the law for previous abortion violations.⁶

The majority decision quotes Plato, along with Greek and Roman law, to support the theory that anti-abortion measures were a relatively new phenomena, and not supported by common law.⁷

They quote common law theorists to support their claim, and then turn to British Laws to support the theory that an abortion may take place if the mother’s life is in danger.

The decision quotes a report from a committee of the Twelfth Annual Meeting of the American Medical Association in 1857, stating:

"The third reason of the frightful extent of this crime (abortion) is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, and to its life as yet denies all protection."⁸ (parentheses mine)

The Committee then offered, and the Association adopted, resolutions protesting "against such unwarrantable destruction of human life," calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies "in pressing the subject."⁹

The committee than pressed that is was “unlawful and unprofessional for any physician to induce abortion or premature labor without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child -- if that be possible,"

The Court than states that the old laws against abortion, to paraphrase them brutally, represent the dark ages, and when they were made there was no safe way to do abortion. However: “Modern medical techniques have altered this situation.” It is now “relatively safe.” They then state that it may even be safer than normal birth.

The Court recognized that nowhere in the constitution is there a right to privacy, however, in a string of cases going back to Union Pacific R. Co. v. Botsford, (1891) this right has been inferred and assumed.¹⁰

“We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.”¹¹

Thus the court had ruled, essentially, that all people had the right to a decent life, as well as a right to privacy. The stating that this right also included the right to “terminate a pregnancy” intimated that the “fetus” was not a person, just a fetus.

“If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

"Section 1 of the Fourteenth Amendment contains three references to "person." …None indicates, with any assurance, that it has any possible pre-natal application.”¹²

“All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.”¹³

 I will reply, quoting from the dissenting opinions, in another article.

 

Through His Strength We Will Conquer,

Andrew C. Abbott

Notes:

1: Arts. 1191-1194 and 1196 of the State's Penal Code

2: 410 U. S. 116

3: 410 U.S. 120

4: 410 U.S. 121

5: quoted: 410 U.S 122

6: 410 U.S. 127

7: 410 U.S. 232

8: 410 U.S. 241

9: 410 U.S. 242

10: 410 U. S. 152

11: 410 US. 154

12: 410 U.S. 157

13: 410 U.S. 158