Jennifer Silva's Essay (first draft)

Roe v. Wade: A Thorough Attempt to an Impossible Task

The 1973 Supreme Court decision Roe v. Wade (410 US 133 (1973)) caused unparalleled controversy; today, twenty-seven years later, American opinion concerning the validity of the Court’s argument remains divided. In the majority opinion, written by Justice Blackmun, the Court struck down criminal abortion laws, asserting that a woman has a constitutional, though not unqualified, right to terminate her pregnancy. The Court also created specific laws regarding the regulation of abortion procedure.

The right to have an abortion is never explicitly stated in the Constitution; for this reason, Blackmun relied on legal precedent, historical references, and the rights given Ninth and Fourteenth Amendments in order to prove that the Constitution encompasses an unwritten right to choose to terminate a pregnancy. Blackmun proves the Court’s position as thoroughly as possible, given that the argument consists of broad interpretations, rather than clearly stated facts, of the Constitution. Because the Constitution does not contain written permission to have an abortion, the Court’s decision was bound to meet disagreement concerning this controversial issue; however, as Harvard law professor Mary Ann Glendon argues, the Court’s decision to draft specific abortion laws increased dissension by taking legislative power away from the states.

In 1971, Jane Roe, an unmarried pregnant woman from Texas, brought a class action suit against Wade, the District Attorney of her county. She claimed that the Texas abortion laws, which allowed abortion only to save the life of the mother, violated the Constitution because of vagueness and on the basis of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. A three-judge District Court ruled that the Texas statutes were unconstitutional and granted declaratory, though not injunctive, relief. Both Roe and the District Attorney appealed, Roe seeking an injunction and Wade requesting that the decision be overturned.

The Supreme Court ruled on Roe v. Wade in 1973. Justice Blackmun, author of the majority opinion, summarized,

"[the Constitutional] right of privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy…but this right is not unqualified and must be considered against important state interests" (Roe v. Wade)
In other words, while finding that a woman does indeed have a right to terminate her pregnancy, the Court also decided that the interests of the mother must be weighed against the interests of the fetus throughout the pregnancy. Therefore, it created separate regulations for each stage of pregnancy. The Court judged that in the first trimester of pregnancy, the abortion decision rests solely between the woman and her doctor; in the stage between the end of the first trimester and viability, the point where a fetus can live outside the mother without artificial support, the state can choose to regulate procedure; and after viability, a state can proscribe abortion.

Since the Constitution never explicitly states the right to have an abortion, the Court justifies its opinion by claiming that, "zones of privacy" (RvW), or implied rights to privacy, exist in the Bill of Rights. Such rights had previously been judged to protect distributing birth control, possessing obscene material in one’s home, and keeping certain information private (Gifis, Steven, Barron’s Law Dictionary, New York: Barron’s Educational Series, 1996). The Court decided that these "zones of privacy" also include the right to an abortion. In order to show the right to terminate a pregnancy, at least before viability, was implied when the Constitution was written, Blackmun began his argument with an examination of the roots of American abortion law.

Blackmun traces abortion laws back to Roman law codes, the foundation for English, and later American, laws. He shows that Soranos, a reputable ancient gynecologist, "found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable…Roman law afforded little protection to the unborn" (RvW). Later, Blackmun looks at English common law, or the unwritten law of custom, concerning abortion. Until the early nineteenth century, English common law stated that before quickening, the time when the mother first felt fetal movement, abortion, "was not an indictable offense" (RvW). After quickening, abortion was only a misdemeanor.

Because Americans employed English common law to regulate abortion until the mid-1850’s, women clearly enjoyed, "a broader right to terminate a pregnancy" (RvW) at the time of the Constitution than under the Texas laws in the nineteenth and twentieth centuries. By making this distinction, Blackmun show that the authors of the Constitution did not intentionally exclude the right to terminate a pregnancy; rather, Blackmun suggests that this right could exist implicitly in a "zone of privacy," considering that abortion was an acceptable procedure throughout the eighteenth century.

Blackmun also retraces legal precedent to prove that many earlier Court cases legitimized the concept of "Zones of privacy," or unwritten laws concerning privacy. He cites cases to show that since 1891, the Court has relied upon, "a guarantee of certain areas or zones of privacy" (RvW) found in the First, Fourth, and Fifth Amendments; the penumbras of the Bill of Rights; the Ninth Amendment; and the first section of the Fourteenth Amendment to make decisions. The Court used these laws to rule on personal rights surrounding marriage, procreation, contraception, family matters, and child-rearing; although the decisions that it made in these circumstances could not be supported through written laws, the Court clearly shows a long precedent on reliance on unwritten law when deciding personal matters.

After establishing this precedent, Blackmun states that the right to have an abortion exists in the Fourteenth Amendment’s guarantee that, "[no] State [will] deprive any person of life, liberty, or property, without due process of law" (The Constitution of the United States, US Government Printing Office, 1986) and the Ninth Amendment’s assertion that certain rights cannot be denied simply because they do not exist in the, "enumeration of the Constitution" (The Constitution of the United States).

Justice Blackmun evolves his argument logically, first asserting the acceptability of abortion at the time of the Constitution, and then showing the Court’s precedent of using implied rights of the Constitution to support a decision. If one accepts the concept of "zones of privacy," then the argument that the right to an abortion is present in the Ninth and Fourteenth Amendments follows logically. However, because of the controversial nature of the abortion debate, and the fact that the Constitution never explicitly gives the right to have an abortion, there will always be dissension surrounding Roe v. Wade.

However, Justice Blackmun’s choice of language increased the disagreement surrounding the decision. At the end of the opinion, Blackmun provided specific regulations regarding the abortion procedure. Instead of simply stating the Court’s constitutional interpretation of abortion rights, Blackmun uses words that sound lie legislation. For example, he states, "…the State…may, if it chooses, regulate the abortion procedure in ways that are reasonable related to maternal health" (RvW). The word "may" suggests the Court is commanding the states, rather than giving them its constitutional judgments and allowing them to write their own laws. The word "must" also creates this effect.

Blackmun’s choice to summarize the decision in specific rules added tot he controversy of the decision. The opinion sounds like a series of laws. The wording of Blackmun’s decision automatically took power away from state legislature and immediately forced these laws upon each state. For many dissenters, the decision seemed not only invalid, but unfair as well: a violation of the separation of powers doctrine. This feeling of unfairness added to the outrage of those who did not support Roe v. Wade.

With Roe v. Wade, the Court confronted an extremely difficult task: to make a decision, based on Constitutional interpretations, about one of the most controversial issues in American society. Justice Blackmun provides a logical series of proof to show that the right to have an abortion is implied in the Constitution. However, due to the nature of the abortion conflict, there will be controversy surrounding this decision for many years to come.

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Jennifer Silva's Essay (final draft)

Roe v. Wade: A Thorough Attempt at a Difficult Task

The 1973 Supreme Court decision Roe v. Wade (410 US 133 (1973)) caused unparalleled controversy; today, twenty-seven years later, American opinion concerning the validity of the Court’s argument remains divided. In the majority opinion, written by Justice Blackmun, the Court struck down criminal abortion laws, asserting that a woman has a constitutional, though not unqualified, right to terminate a pregnancy. The Court also created specific regulations regarding abortion procedure.

The right to have an abortion is never explicitly stated in the Constitution; for this reason, Blackmun relies on the legal history of abortion as well as the rights given in the Ninth and Fourteenth Amendments to prove that the Constitution encompasses an unwritten right to choose to terminate a pregnancy. Blackmun proves the Court’s position as thoroughly as possible, given that the argument consists of broad interpretations, rather than clearly stated facts, of the Constitution. Because the Constitution does not contain a written, absolute right to have an abortion, the Court’s decision was bound to meet disagreement concerning this controversial issue; indeed, as Harvard law professor Mary Ann Glendon argues, the Court’s decision to draft specific abortion laws increased dissension by taking legislative power away from states.

Roe v. Wade dates back to 1971, when Jane Roe, an unmarried pregnant woman from Texas, brought a class action suit against Wade, the District Attorney of Dallas. She claimed that the Texas abortion laws, which allowed abortion only to save the life of the mother, violated the Constitution on the basis of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, which all concern privacy. She also maintained that the Texas statutes were unconstitutionally vague. A three-judge District Court ruled that the Texas statutes were unconstitutional and granted declaratory, though not injunctive, relief. Both Roe and the District Attorney appealed, Roe seeking an injunction and Wade requesting that the decision be overturned.

The Supreme Court ruled on Roe v. Wade in 1973. Justice Blackmun, author of the majority opinion, summarized the Court’s finding as:

"[the Constitutional] right of privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy…but this right is not unqualified and must be considered against important state interests" (Roe v. Wade)
In other words, while finding that a woman does indeed have a right to terminate her pregnancy, the Court also decided that, throughout the pregnancy, the interests of the mother must be weighed against the state’s interest to protect the fetus. Therefore, it created separate regulations for each stage of pregnancy. The Court judged that in the first trimester of pregnancy, the abortion decision rests solely between the woman and her doctor; in the stage between the end of the first trimester and viability, the point where a fetus can live outside the mother without artificial support, the state can choose to regulate procedure; and in the stage after viability, a state can proscribe abortion.

The Court justifies its opinion by claiming that, "zones of privacy" (Roe v. Wade), or implied rights to privacy, exist in the Bill of Rights. Such rights encompass the right to distribute birth control, possess obscene material in one’s home, and keep certain information private (Gifis, Steven, Barron’s Law Dictionary, New York: Barron’s Educational Series, 1996). The Court decided that these "zones of privacy" also include the right to an abortion. In order to show the right to terminate a pregnancy, at least before viability, was implied when the Constitution was written, Blackmun first examines the roots of American abortion law.

Blackmun traces abortion laws back to Roman law codes, the foundation for English, and later American, laws. He shows that Soranos, a reputable ancient gynecologist, "found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable…Roman law afforded little protection to the unborn" (Roe v. Wade). Later, Blackmun looks at English common law, or the unwritten law of custom, concerning abortion. Until the early nineteenth century, English common law stated that before quickening, the time when the mother first felt fetal movement, abortion, "was not an indictable offense" (Roe v. Wade). After quickening, abortion was only a misdemeanor.

Because American regulation of abortion, at least until the mid-1850’s, was extremely similar to English common law, women clearly enjoyed, "a broader right to terminate a pregnancy" (Roe v. Wade) at the time of the Constitution than under the Texas laws in the nineteenth and twentieth centuries. By making this distinction, Blackmun shows that the authors of the Constitution did not intentionally exclude the right to terminate a pregnancy; rather, Blackmun suggests that this right could exist implicitly in a "zone of privacy," considering that abortion was an acceptable procedure throughout the eighteenth century. After successfully proving that abortion was not purposely omitted, Blackmun must simply validate the concept of "zones of privacy" to support his case.

Blackmun next retraces legal precedent to prove that many earlier Court cases legitimized the concept of "zones of privacy," or unwritten laws concerning privacy. He cites cases to show that since 1891, the Court has relied upon, "a guarantee of certain areas or zones of privacy" (Roe v. Wade) found in the First, Fourth, and Fifth Amendments; the penumbras of the Bill of Rights; the Ninth Amendment; and the first section of the Fourteenth Amendment, to make decisions. The Court used these laws to rule on personal rights surrounding marriage, procreation, contraception, family matters, and child-rearing; although the decisions made in these circumstances could not be supported through written laws, the Court clearly shows a long precedent of reliance on unwritten law when deciding personal matters. Blackmun solidifies the Court’s argument for including abortion in these personal matters by illustrating "zones of privacy" as an accepted tradition; this concept appears legitimate and justifiable in the light of its long legal history.

After establishing this precedent, Blackmun states that the right to have an abortion exists in the Fourteenth Amendment’s guarantee that, "[no] State [will] deprive any person of life, liberty, or property, without due process of law" (The Constitution of the United States, US Government Printing Office, 1986) and the Ninth Amendment’s assertion that certain rights cannot be denied simply because they do not exist in the, "enumeration of the Constitution" (The Constitution of the United States).
Justice Blackmun develops his argument logically, first asserting the acceptability of abortion at the time of the Constitution, and then showing the legal precedent of using implied, not explicit, rights of the Constitution. If one accepts the concept of "zones of privacy," then the argument that the right to an abortion is present in the Ninth and Fourteenth Amendments follows logically. Yet if one does not accept "zones of privacy," then Justice Blackmun’s argument has no foundation. Because the Constitution never explicitly gives the right to have an abortion, there will always be controversy surrounding this debatable issue.

However, Justice Blackmun’s choice of language increased the disagreement surrounding the decision. At the end of the opinion, Blackmun provided specific regulations regarding the abortion procedure. Instead of simply stating the Court’s constitutional interpretation of abortion rights, Blackmun uses words that sound lie legislation. For example, he states, "…the State…may, if it chooses, regulate the abortion procedure in ways that are reasonable related to maternal health" (Roe v. Wade). The word "may" suggests the Court is commanding the states, rather than giving each state the Court’s constitutional interpretation and allowing it to write its own laws. The word "must" also creates this effect.

Blackmun’s choice to summarize the decision in specific rules added to the controversy of the decision. The "to summarize and repeat" section at the end of the opinion sounds like a series of laws. The wording of this section automatically took power away from state legislature and immediately forced these laws upon the people in each state. For many people who opposed the Court’s ruling, the decision seemed not only invalid, but unfair because the standards the Court created seemed like a violation of the separation of powers doctrine. This feeling of unfairness added to the outrage of those who did not support Roe v. Wade.

With Roe v. Wade, the Court confronted an extremely difficult task: to make a decision, based on Constitutional interpretations, about one of the most controversial issues in American society. Justice Blackmun provides a logical series of evidence to show that the right to have an abortion is implied in the Constitution. Since the decision, many abortion questions not addressed in Roe v. Wade have arisen, and in deciding these cases, the Court has not consistently applied its findings from Roe v. Wade. For example, in the 1989 case, Webster v. Planned Parenthood of Missouri (494 U.S. 490) , the Court upheld a Missouri law stating that human life began at conception and allowed the state to ban use of state property for abortions and to require viability tests. Also, in the case Planned Parenthood v. Casey (505 U.S. 833) , the Court allowed the state of Pennsylvania to force women to wait twenty-four hours between the request for an procural of an abortion, and to require parental consent for minors seeking abortions. By upholding these laws, the Court contradicted Roe’s specific trimester regulations for abortion. However, although slight changes have been made to the Roe decision, the main point—a woman’s right to choose to have an abortion—has been upheld throughout the years.

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