term paper

Term Paper: Comment by Steve Batham: Cover Page consists of title and court case. Notice that “versus” is always abbreviated as “v.” and not “vs.” in legal documents

Analysis of Roe v. Wade

John Student Comment by Steve Batham: Name and any other information you want to include here. You should not have your name on every page

Hist 17C

Term Paper

Professor Batham

Section 1: Background Comment by Steve Batham: Section one starts on new page. Title at top is normal 12 point font, but underlined or bolded (or both) to clearly indicate the beginning of a new section.

This case began when a pregnant single woman, Norma McCorvey (“Roe” in this case) in Texas brought a class action law suit to challenge the constitutionality of criminal abortion laws in Texas. At the time, the laws prevented abortions from occurring except in cases of rape, incest, or where the life of the mother was deemed by a physician to be in danger[footnoteRef:0]. Initially, McCorvey had claimed she was raped in order to obtain a legal abortion and when this failed also tried to obtain an illegal abortion. Neither of her attempts were successful. At a similar time of Roe’s suit, another couple called the “Does” also filed a lawsuit against the same anti-abortion laws in Texas. The Does were pursuing a different line of reasoning than McCorvey was in arguing against the anti-abortion laws. The Does were suing because they believed that the law could create injury based on the future possibilities of contraception failing, unpreparedness for parenthood, or danger to the wife’s health[footnoteRef:1]. At the time of the lawsuit, Norma McCorvey was pregnant, but the “Does” were not pregnant, and this would play a significant role in the outcomes of the two different lawsuits. Comment by Steve Batham: Paragraphs are indented. Text is 12 point Times New Roman font and double spaced. Margins are 1” on all sides. Comment by Steve Batham: Footnotes inserted using footnote function and not simply adding a superscript number. See Chicago handout for instructions. [0: Roe v. Wade, 410 U.S. 113 (1973)] [1: Ibid.]

The case was brought to a 3-judge district court by lawyers Linda Coffee and Sarah Weddington on behalf of McCorvey and the Does. After hearing arguments, the 3-judge court made several determinations for the case. This court first decided that Roe and her physician, Hallford, both had standing to file the lawsuit, but that the “Does” did not have standing because their argument was based on future possibilities that were too vague to make judgements about[footnoteRef:2]. Though the Does argued that the future possibility of pregnancy was just as harmful as actually being pregnant, the panel of judges found that they in fact did not have standing because they were not immediately affected by the law, and their arguments about the future impact were too indefinite to constitute a legal ruling. After deciding to hear the case the court determined that the abortion statutes were void because they were too vague and infringed on the plaintiff’s Ninth and Fourteenth amendment rights. In making this initial decision the district court cited the case of Griswold v. Connecticut, claiming that the abortion laws in Texas were void in part because of the right to privacy found in the Ninth and Fourteenth Amendment in the Constitution[footnoteRef:3]. After this determination the case was heard on appeal by the Supreme Court. Comment by Steve Batham: No extra spaces between paragraphs. [2: Ibid.] [3: Ibid.]

The Supreme Court determined that only Roe had standing to file a lawsuit and that Hallford, her physician, did not[footnoteRef:4]. One of the issues in determining standing was the fact that McCorvey had already given birth to her child before the decision of the Supreme Court was made. The Supreme Court decided to hear the case because most cases cannot go through the appeals process in a period of time that is shorter than the term of a pregnancy[footnoteRef:5]. This meant that the mootness doctrine which could be used to argue that McCorvey did not have standing in the case was invalid because it would be impossible to go through the appeals process in a period of time that was shorter than the pregnancy. Thus she was granted standing and the case proceeded through the Supreme Court. Comment by Steve Batham: Section I exceeds 350 word minimum of text, excluding footnotes and long quotes Comment by Steve Batham: Section I ends and Section II begins on a new page [4: Ibid.] [5: Ibid.]

Section II: The Decision Comment by Steve Batham: Section II starts on new page with same formatting for Section I

The Supreme Court decided in favor of the plaintiff McCorvey basing its decision on matters of privacy protected by the Ninth and Fourteenth Amendment. Justice Blackmun wrote the majority opinion and based his argument on a framework of trimesters and the concept of protecting the privacy of doctor’s to make their determinations based on their own expertise and not to be coerced by state laws. Blackmun’s opinion was presented more from the perspective of protecting the privacy of doctors and was less concerned with the idea of a woman having the right to ‘bodily autonomy.’

The structure of the decision was based around the idea of trimesters when determining whether or not an abortion was permissible. The ruling stated that in the first trimester the ‘woman has the exclusive right to pursue an abortion’ outside of any state interventions, meaning that a woman’s right to an abortion in the first trimester of pregnancy was absolute and to be determined only by herself and her physician and that no laws could prevent an abortion during this time[footnoteRef:6]. In the second trimester, the ruling decided that the state could not intervene or create laws restricting access to abortion except to protect the health of the mother and that these would be the only acceptable regulations for abortion. In the third trimester, the focus shifts to the protection of the ‘potentiality’ of the fetus and its viability, and so during this time period the state could “if it chooses, regulate, and even proscribe abortion except where necessary, in appropriate medical judgement for the preservation of the life or health of the mother[footnoteRef:7].” Essentially, in the third trimester abortion could be limited to cases where it would be legal only if the life of the mother were at risk. [6: Roe v. Wade, 410 U.S. 113 (1973)] [7: Ibid.]

In total, seven of the Supreme Court Justices formed the majority opinion, but several of them had additional opinions to express in addition to Blackmun’s perspective. Justice Douglas argued that it was specifically the 14th Amendment rather than the 9th Amendment which was the source of the right to privacy which was the determining factor in this case. Justice Stewart believed that the right to privacy was specifically found in the Due Process Clause of the 14th Amendment. Finally, Justice Burger believed that the opinions of two doctors should be required before an abortion could be performed[footnoteRef:8]. [8: Ibid.]

The two Justices who dissented in this case were Justices Rehnquist and White. Each Justice wrote his own opinion dissenting with the other Justices’ majority opinion. White argued that the use of the trimester framework was inappropriate for this case because it had no basis in constitutional or legal framework. He also believed that this represented an overreach of judicial power and that the more appropriate way to determine this issue was through a political process—having new laws created through Congress—rather than through the judicial system[footnoteRef:9]. Justice Rehnquist formed his argument by researching the law that existed in the 19th century during the time of the creation of the Fourteenth Amendment. Rehnquist looked at the abortion laws present when the Fourteenth Amendment came into effect and found that there were laws prohibiting abortion at the time, and so he argued that those who created the Fourteenth Amendment never considered that it could create rights to protect privacy in matters of abortion[footnoteRef:10]. Therefore, Justice Rehnquist believed that it was inappropriate to use the Fourteenth Amendment to create a protection for abortion procedures. Comment by Steve Batham: Section I exceeds 350 word minimum of text, excluding footnotes and long quotes [9: Ibid.] [10: Ibid.]

Section III: Significance

Roe v. Wade had several instant consequences when it was decided by the Supreme Court in 1973. At the time the decision was made, nearly two-third of states had laws prohibiting abortions[footnoteRef:11]. As an immediate consequence this opened accessibility to women for abortions throughout the United States. This was seen as an expansion of civil liberties because the right of women to access abortions allows them to plan their families and to direct the course of their educational and professional lives. As a response to the decision, the United States has seen a significant resistance formed against Roe v. Wade and many efforts have been successful in limiting women’s access to abortions since the initial ruling. The decision resulted in the creation of the National Right to Life Committee, which is dedicated to protecting the rights of fetuses and embryos because members believe that life begins at conception[footnoteRef:12] and thus these fetuses deserve protection by the law. Comment by Steve Batham: Section III begins on new page Comment by Steve Batham: Notice how repeated citations look different. See Chicago handout. [11: Jenny Hontz and Estelle Rogers. "25 Years Later: The Impact of "Roe v. Wade"." Human Rights 25, no. 2 (1998): 8. http://www.jstor.org/stable/27880095.] [12: Hontz and Rogers, "25 Years Later," 9.]

In the long term the United States has seen many decisions that have resulted in restriction on access to abortions partially from the framework of the decision created by the Supreme Court. The argument behind the Supreme Court’s decision claimed that states can have an interest in the potentiality of life of the fetus and that it can balance this potential against the life of the mother. This right has also been affected by the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey[footnoteRef:13]. In this case the Supreme Court declared that before, states had to show a compelling interest in the life of the fetus in order to intervene in any decision made by the mother, but with this case switched the burden of interest to the mother resulting in mother’s needing to show that state’s restrictions place an undue burden on the right of a mother to choose what happens to her body[footnoteRef:14]. Essentially, this has forced pregnant mothers to convince the state that they have a vested interest in terminating their pregnancy that outweighs the interest of the fetus’ right to life. These restriction are more prevalent in conservative states rather than liberal states. This has resulted in many restrictions placed on the practice of abortion, especially when it comes to the federal government’s involvement in the issue. For example, the federal government does not offer access to abortion for its employees through any of its health plans, does not support any federal research into stem-cells or embryos, and limits federal funds for fetal tissue and cloning research[footnoteRef:15]. This is significant because many of these areas show promise in providing solutions to many harmful diseases facing the human population such as Parkinson’s disease, and the damage caused by strokes and heart attacks. This has also resulted in cases where the state can take a significant interest and control over embryos once the well-being of the mother is no longer an issue, such as with in vitro fertilization clinics. The impact here is clear in Louisiana where embryos are considered persons[footnoteRef:16]. Therefore, at in vitro fertilization clinics any extra embryos that are created which are not used cannot be destroyed because they are protected under the law. This creates unusual circumstances and criteria. For example, the clinics are prevented by law from destroying any extra embryos they are holding from a fertility treatment, but if mother’s were to implant the embryos, however, they would have the right to abort them, which shows a conflict between the decision of Roe v. Wade and state regulations that have come into place since then. [13: Hontz and Rogers, "25 Years Later," 9.] [14: Hontz and Rogers, "25 Years Later," 9.] [15: Hontz and Rogers, "25 Years Later," 11.] [16: Hontz and Rogers, "25 Years Later," 11.]

Roe v. Wade has also had a significant impact on decisions in other areas as well. The reasoning about rights to privacy in Roe v. Wade have been used to support the right to refuse life-sustaining medical treatment or the right not to have that treatment withdrawn. It has also allowed inmates at psychiatric hospitals the right to refuse antipsychotic drugs, and has also affected decisions about physician assisted suicide[footnoteRef:17]. In the case of Casey v. Director, Missouri Department of Health, the Supreme Court found, in part based on the decision of Roe v. Wade that a woman who was in a persistent vegetative state could not have her life-sustaining treatments removed at the request of her parents. The Supreme Court made this decision in part because of the patient’s right to privacy found and sustained by the decision of Roe v. Wade. Essentially, because the patient’s desires were not made clear before her accident, it was not possible to assume that without clear evidence her wishes would be the same as her parents and thus they did not have the right to terminate her life-sustaining medical treatments because of the patient’s right to privacy[footnoteRef:18][footnoteRef:19]. [17: Hontz and Rogers, "25 Years Later," 10.] [18: "Cruzan by Cruzan v. Director, Missouri Department of Health," Oyez, 24 Mar. 2018, www.oyez.org/cases/1989/88-1503.] [19: ]

The decision made in Roe v. Wade continues to be controversial in contemporary America with many groups fighting to place more restrictions on access to abortions and others fighting to maintain and increase access. In addition, Roe v. Wade has impacted many other decisions dealing with rights to privacy concerning the Ninth and Fourteenth Amendments and likely will continue to have an impact on future cases. It is important to understand how this decision was made in order to understand subsequent decisions of the Supreme Court. Comment by Steve Batham: Text exceeds 700 word minimum in Section III

Works Cited Comment by Steve Batham: Works cited collects all sources cited in paper, listed in alphabetical order, and single spaced. Notice that these citations look different than footnote citations. See Chicago handout.

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Hontz, Jenny, and Estelle Rogers. "25 Years Later: The Impact of "Roe v.

Wade"."  Human Rights 25, no. 2 (1998): 8-11. http://www.jstor.org/stable/27880095. Accessed 16 Mar. 2018.

Oyez. "Cruzan by Cruzan v. Director, Missouri Department of Health." Oyez, 24 Mar. 2018,

www.oyez.org/cases/1989/88-1503. Accessed 15 Mar. 2018

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