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Roe v Wade: Abortion and A Woman’s Right to Choose

In the United States, abortion laws began to appear in the 1820s, forbidding abortion after the fourth month of pregnancy.

Through the efforts primarily of physicians, the American Medical Association, and legislators, most abortions in the US had been outlawed by 1900. Illegal abortions were still frequent, though they became less frequent during the reign of the Comstock Law, enacted March 3, 1873. A United States federal law which made it illegal to send any "obscene, lewd, and/or lascivious" materials through the mail, including contraceptive devices and information. In addition to banning contraceptives, this act also banned the distribution of information on abortion for educational purposes.

Some early feminists, like Susan B. Anthony, wrote against abortion. They opposed abortion, which at the time was an unsafe medical procedure for women, endangering their health and life. These feminists believed that only the achievement of women's equality and freedom would end the need for abortion. (Elizabeth Cady Stanton wrote in The Revolution, "But where shall it be found, at least begin, if not in the complete enfranchisement and elevation of woman?") They wrote that prevention was more important than punishment, and blamed circumstances, laws and the men they believed drove women to abortions. (Matilda Joslyn Gage wrote in 1868, "I hesitate not to assert that most of this crime of child murder, abortion, infanticide, lies at the door of the male sex...")

Later feminists defended safe and effective birth control -- when that became available -- as another way to prevent abortion. (Most of today's abortion rights organizations also state that safe and effective birth control, adequate sex education, available health care, and the ability to support children adequately are essentials to preventing the need for many abortions.)

By 1965, all fifty states banned abortion, with some exceptions which varied by state: to save the life of the mother, in cases of rape or incest, or if the fetus was deformed. Groups like the National Abortion Rights Action League and the Clergy Consultation Service on Abortion worked to liberalize anti-abortion laws.

The Supreme Court in 1973, in the case of Roe v. Wade, declared most existing state abortion laws unconstitutional. This decision ruled out any legislative interference in the first trimester of pregnancy and put limits on what restrictions could be passed on abortions in later stages of pregnancy.

While many celebrated the decision, others, especially in the Roman Catholic Church and in theologically conservative Christian groups, opposed the change. "Pro-life" and "pro-choice" evolved as the most common self-chosen names of the two movements, one to outlaw most abortions and the other to eliminate most legislative restrictions on abortions.

Early opposition to the lifting of abortion restrictions included such organizations as the Eagle Forum, led by Phyllis Schlafly. Today there are many national pro-life organizations which vary in their goals and strategies.

The court issued its decision on January 22, 1973, with a 7 to 2 majority vote in favor of McCorvey. Burger and Douglas' concurring opinion and White's dissenting opinion were issued separately, in the companion case of Doe v. Bolton.

The Roe Court deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny. Although abortion is still considered a fundamental right, subsequent cases, notably Planned Parenthood v. Casey, Stenberg v. Carhart, and Gonzales v. Carhart have affected the legal standard.

The opinion of the Roe Court, written by Justice Harry Blackmun, declined to adopt the district court's Ninth Amendment rationale, and instead asserted that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, 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." Douglas, in his concurring opinion from the companion case Doe v. Bolton, stated more emphatically that, "The Ninth Amendment obviously does not create federally enforceable rights." Thus, the Roe majority rested its opinion squarely on the Constitution's due process clause.

The majority opinion is organized into twelve sections preceded by a brief preface; the first four sections provide background. Section I briefly outlines the challenged Texas abortion statutes. Section II characterizes the factual and procedural backgrounds of Jane Roe's and Mary Doe's litigation, including the District Court's rulings regarding the procedural questions (here, justiciability, standing, and abstention) and the merits (here, the requests for declaratory judgment and injunctive relief). Section III is a single paragraph resolving that under the law of Federal Court procedure, the opinions in Mitchell v. Donovan and Gunn v. University Committee do not foreclose review a case of this kind when it is properly here on appeal under § 1253. Section IV issues the court's decision on the procedural questions described in Part II.

Resources

http://en.wikipedia.org/wiki/Roe_v._Wade
http://womenshistory.about.com/od/abortionuslegal/a/abortion.htm

ECU Libraries Materials on Roe v Wade and Abortion Rights