Roe V. Wade Essay, Research Paper

The 1973 Roe v. Wade Supreme Court case was a major landmark in not only the abortion issue, but also in American government. In this paper I will discuss the case, including both arguments and the decision, and the significance of Roe v. Wade. I will also discuss the basis of the ruling as according to the implied right of privacy through the 14th amendment, and how the court reached that decision.

In 1971 Norma McCorvey, a single, pregnant woman in the state of Texas, wanted to get an abortion. The state laws of Texas at that time made it illegal to have an abortion in Texas, and although the state told her that she could go to one of the four states in which abortion was legal, she decided that she could not afford to travel to another state and have the procedure done. So Norma McCorvey decided to sue the state of Texas claiming that her constitutional rights were being taken away from her. The state court ruled in favor of McCorvey but it was not a strong enough verdict to change the arrests of abortion doctors in Texas because the exact part of the Constitution that dealt indirectly with the right to privacy could not be pinpointed, and so Norma McCorvey and her lawyer, Sarah Weddington, decided to take it to the Supreme Court. From then on Norma McCorvey would be known by the generic name Jane Roe to protect the very right of privacy which she was fighting for.

The first hearing of the Supreme Court case Roe v. Henry Wade, District Attorney of Dallas County, took place on December 13, 1971. Sarah Weddington had a strong case for privacy, but once again, the direct part of the Constitution that dealt with her case could not be decided upon. The council for Wade was Jay Floyd who opened badly, and never really impressed the justices. He opened his arguments with jokes and did not have any real basis for why the Texas laws should be upheld. The judges were later said to be too harsh on Floyd who was just trying to lighten the atmosphere. In fact, neither lawyer had a real idea of where constitutionally they were going to base their argument. The Supreme Court finally decided in favor or Jane Roe and Chief Justice Blackmun was decided upon as the speaker for the case. There were many problems with the decision in the first hearing. First, many people were upset with the choice of Justice Blackmun as the speaker. The appointment of Blackmun to the Supreme Court was regarded by the general public as a bad decision. He was said to be cloned after the current Chief Justice and was also only the third choice for appointment by the controversial President Richard Nixon. Also, the courts were very unsure of where they made their decision from, and were getting harsh criticism from the media and lower courts saying that they made their decision based upon pro-choice beliefs rather than of the basis of abortion rights in the constitution. Added to those doubts was the induction of two more Supreme Court judges, William H. Rehnquist and Lewis F. Powell Jr. Taking into consideration that the court did not want to be held as unfair or unjust by anyone, the Supreme Court decided to hear the case again, which was only done a handful of times per year (Carelli 1999).

The second hearing took place on October 11, 1972. Sarah Weddington still counseled Roe but there was a new appellant-Robert C. Flowers. Sarah Weddington had at this time more efficiently concluded where she wished to draw her constitutional point from. The case while in the state of Texas helped Weddington out in their decision by the fact that they based their ruling in the ninth and fourteenth amendments. The only reason that it had to go to federal court was that it would not hold up against the arrest of abortion doctors in the state of Texas, so it was necessary to take to the Supreme Court. Weddington planned to use this tactic to follow through on the case from the first hearing and made sure that she would leave no room for surprise questions from the judges, knowing full well that they would be stricter on their decision this time around. But her opponent, Flowers, had also done more research and been more prepared than Jay Floyd had been in the first hearing. The justices were more questioning on both sides this time to make sure that they were covering all their bases and could form a decision based on fact which would show the public and lower courts that their decision was not made upon a pro-choice personal belief. Like the first time the court heard the case, they decided seven to two on the side of Jane Roe. Justice Blackmun was again chosen as the speaker for the court and he decided to base the decision on the right of privacy which was implied in the first and fourteenth amendments. They had based their decision on a previous case that had been decided concerning the right to privacy. That case was Griswold v. Connecticut in 1965.

In the Griswold v. Connecticut case Dr. Griswold was suing the state of Connecticut because he had been arrested for breaking that state law that made it a crime for any person to use contraceptives to prevent a pregnancy. Dr. Griswold and some colleagues were counseling a married couple who did not wish to have children. They discussed birth control issues, and in some cases Dr. Griswold made contraceptives directly available to the couple. The state arrested Griswold under the current contraceptive law and after his release he consulted lawyers and decided that he would sue the state saying that the law was violating the constitutional rights of privacy which were implied in the Constitution. The state finally found in favor of Dr. Griswold saying that the law was a violation of the implied right of privacy through the fourteenth amendment.

The courts knew that their decision would have a major impact on American government. Blackmun stated in his decision that “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action … or in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” (Roe 1998).

The court’s decision changed the laws of 46 states. California, New York, Colorado, and

North Carolina already allowed abortions. It was legal for women to travel to these states to have

abortion, but it was not reasonable or practical. As in the case of Jane Roe, or Norma McCorvey,

she could not afford to travel to one of the four states to have her abortion. Abortion was a

costly procedure in itself, and expecting women to travel to these states was impractical.

Under the final Roe decision, only a compelling reason will allow any government,

including state governments, to interfere with the exercise of the right to have the abortion in any

state, not restricted to the state in which you live, although that has been argued recently. The

decision was outlined as follows:

Government may not interfere with a woman’s decision to terminate a pregnancy in any

way during the first third or trimester of pregnancy, except to insist that it be performed by a

licensed physician.

In the second trimester, government has the power to regulate abortion only in ways

designed to preserve and protect the woman’s health.

At the beginning of the final third of a fetus’ gestation, protection of fetal life

becomes a compelling reason sufficient under Roe to justify interference with the exercise of the

right to choose abortion. At that point, the government can regulate or prohibit abortion in order

to protect fetal life unless the abortion is necessary to preserve the life of the woman (Tribe 192).

Since the Roe v. Wade case made abortions legal in the first trimester in all states there

have been more than 32 million abortions in the United States and more than 1.5 million are killed

each year. The main question that people are asking is whether or not this is murder (Henshaw

101).

At this point in the argument, science and political government combine. In order to make the decision as to whether the unborn child itself has rights, the court had to look at the actual stages of life after fertilization. If the court had ruled that the unborn baby was already a person with equal rights under the Constitution, then the Roe v. Wade decision would not have been made as we have it now. The courts had several doctors define when life started, and there was scientific evidence to support both arguments according to the doctors who testified. To give an idea of what the court was presented with to then form their own decision as to when life begins, I will briefly describe the phases of life after fertilization to more understand when life actually begins, which is a personal decision because there has been no proof presented and accepted in a court situation, especially in the Roe v. Wade case.

At the moment of fertilization all characteristics of each person are already determined such as sex, eye color, hair color, intelligence or any birth defects. The baby already has its own 46 human chromosomes which determine the genetic code. Within one week of fertilization the baby is implanted inside the mother’s uterus and life begins to nourish and support itself from the inside out (Lejeune 8).

At three weeks the baby’s heart began to beat and pump blood. At six weeks brain waves can be measured coming from the fetus. This is the biggest argument against abortion because in medicine the end of life is defined as the end of all brain waves in the human being. Once a fully grown person has no brain waves they are considered technically dead and other’s are asked to make all the decision concerning the life of the person. Why then is the fetus not a person if brain waves can be measured from it? (Hamlin 113).

At seven weeks the baby swims freely in the amniotic sac, and even though the mother wont begin to feel it until about four and a half months into the pregnancy, it is swimming freely. As early as eight weeks scientists have seen babies swallowing the amniotic fluid, showing that they are taking some form of life support into their own hands (Liley 224).

At ten to eleven weeks after fertilization the baby is shown to be able to “breathe” amniotic fluid and gains the ability to urinate. Also at this age the baby will seize an object placed in its hand, a quality often regarded with interest in studies of newborns (Rorvick 234).

At eleven weeks the baby has developed eyelids, fingernails and even has its own fingerprints. All organ systems are fully functioning at this point and now they are just maturing and growing with the infant. The baby has also developed skeletal structure, nerves and circulation. A baby’s size at this point is about the size of an adult’s little fingernail (Cunningham 52).

A baby at fourteen weeks has its heart pumping several quarts of blood through the body every day. At twelve weeks the baby has developed all of the body parts required to experience pain, including all of the nerves, spinal cord, and thalamus (Shettles 61).

At eighteen weeks and beyond the baby is possible to be viable, which we have already defined as the point in which the baby could live outside the mother. Even the baby at nineteen weeks was early for viability, but it was possible to sustain life outside of the mother’s body.

The Supreme Court believed that abortions would be mainly used for medical and health purposes, but in reality only seven percent of all abortion are so called “hard cases” of rape, incest, health of the baby and threat to the life or health of the mother. The other 93 percent of abortions are social or “birth control” reasons (Torres 169).

The reason that the topic is so controversial is that people have different religious and moral beliefs. The courts ruled in the Roe case with what is known in ethics as Natural Rights. Natural Rights state that the fetus is not a human being with human rights until it is able to live outside of the mother and not be dependent on other people to sustain its life.

Roe v. Wade was such a significant case because the Supreme Court ruled upon an implied right, which means a right that is not spelled out in the Constitution, but it is implied to be a right which is given to all citizens of the United States. The right to privacy has been used many times as a basis for other cases particularly in the abortion field, but also in other genres.

The reason that the Roe case is so much more influential than the Griswold case is because it dealt with such an influential and controversial topic. Sarah Weddington, lawyer for Norma McCorvey and author of her own book after the case said this about the importance of what she was fighting for in the courts:

“Finally I was given a few minutes to point out in the most passionate yet professional way I could the varied impacts of pregnancy on a woman’s life. I stressed that legal abortion in early pregnancy is eight times safer than carrying a pregnancy to term. I concluded that portion of my presentation by saying that to a woman, pregnancy is perhaps the most determinative aspect of her life: ‘It disrupts her body, it disrupts her education, it disrupts her employment, and it often disrupts her entire family life. And…because of the impact on the woman, this certainly, in as far as there are any rights which are fundamental, is a matter…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 terminate her pregnancy,’” (Weddington 115).

The Roe v. Wade decision was such a big deal because people made it such a big deal. Even today it is one of the most recognized Supreme Court cases in history, even though it was based on previous ideas and concepts. Implied laws are often now pleaded to the Supreme Court in some part because of this case.

Although I do not personally believe in abortion because of the description I gave in my paper about where life begins, I also believe that the Supreme Court was correct in establishing that abortion should be included in a woman’s right to privacy. Implied rights are an important part of the Constitution because it could not be possible for every single right to be spelled out exactly in the Constitution and it is necessary for the Supreme Court to be able to decipher what should be implied from the original. The Court also made an unusual, but appropriate decision to rehear the case the second time. If the Supreme Court had left the decision the way it was the first time, it would be dangerous even today. With all of the controversy surrounding the abortion issue today, without the study base of this case, the foundation for abortion and the political system would be even more shaky. The second time the Supreme Court heard the case, they made sure that they asked all of the appropriate questions and knew the case inside and out before they made an important decision. American politicians and pro-life activists would be questioning the decision even more today if they had left it questionable as to where they drew the implied rights. Roe v. Wade influenced the country more than anyone involved thought it would. The implied right to privacy was not intended to be the main idea of the case, but added on top of the abortion issue, it was one of the most important cases in history. Rarely does a court get to influence so many things at once and the Supreme Court in 1973 made sure they knew what they were deciding. If they had decided that there was no right to privacy implied in the Constitution, and that abortion was completely illegal, the United States might have ended up more like Latin American where the number one cause of death among women is illegal abortion because the doctors are not regulated by the nation, but women continue to do it (Weddington 261).

Roe v. Wade was not only a turning point in abortion rights, but was also a turning point in government. The Supreme Court flexed its muscles to show that they can make decision affecting the lives of most of the country. Every person is guaranteed a right to privacy, and the Roe case made it certain that it would be upheld in even the highest court.

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Carelli, Richard. “Harry Blackmun…dies.” Seattle Times 4 March 1999 .

Cunningham, MacDonald and Grant. From Conception to Birth; the drama of life’s beginnings. New York: Harper and Row, 1971.

Hamblin, Hannibal, M.D.. “Life or Death by EEG.” Journal of American Medical Association (1964): 113-115.

Henshaw, Stanley K.. “Abortion Services in the United States, 1991 and 1992.” Family Planning Perspectives 26 (1994): 101-112.

Lejeune, Jerome, M.D.. “The Human Life Bill.” Op.cit., 1 (1996): 8.

Liley, Albert W. M.D.. Statement, U.S. Congress, Senate, Subcommittee on constitutional Amendments of the Committee on the Judiciary, Ninety-Third Congress, Second Session, “Abortion Part 2.” S. J. Res. 119.

Rorvick. “What the Fetus Feels.” British Medical Journal 55 (1980): 234.

Shettles, Landrum M.D.. “Why Pain Hurts: Unlocking an Agonizing Mystery.” Time 123 (1984): 58-63.

Torres, Aida. “Why Do Women Have Abortions?” Family Planning Perspectives July 1988: 169-176.

Tribe, Laurence H. Abortion: The Clash of Absolutes. W.W. Norton and Co., 1990.

Weddington, Sarah. A Question of Choice. New York: Penguin Books, 1993.