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The Legacy of Roe v. Wade

Updated March 28, 2022
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During the sexual revolution of the 1960s, many women began opposing restrictive abortion laws in the United States, as the rate of unwanted pregnancy increased. Throughout the United States, illegal abortion methods were used, which were dangerous and often led to death. In 1970, Norma McCorvey, known as Jane Roe, a pregnant Texas resident, sued Henry Wade, Dallas County District Attorney, because she wanted a safe abortion but state law prohibited abortion unless the life of the woman was in danger. Roe v. Wade was appealed to the Supreme Court and in 1973 the Court decided that a women’s right to an abortion is protected under the right to medical privacy implied by the Fourteenth Amendment.

The decision prohibited states from creating laws restricting abortion in the first trimester and required them to have a compelling interest in each abortion restriction. In 1992, Planned Parenthood v. Casey challenged many aspects of the Roe v. Wade decision, but ultimately upheld a woman’s right to an abortion. The Supreme Court decision in Planned Parenthood v. Casey was as vital for abortion rights as the decisions made in Roe v. Wade because it reaffirmed a women’s right to have an abortion and strengthened the constitutional arguments, by shifting the focus from a woman’s right to medical privacy to her individual liberty.

Prior to Roe v. Wade, the sexual revolution in the United States, in the 1960s, increased the pressure to overrule anti-abortion laws because of new views against government involvement in personal issues. Because of the sexual revolution, women began marrying later and having sexual partners before marriage. Singles bars began opened, allowing for “swingers”, the trading of sexual partners. This new view of sexuality caused many unplanned pregnancies which increased the number of women receiving illegal abortions, as restrictive abortion laws existed in most states.

These laws, enacted in the nineteenth century, heavily restricted abortion, many outlawing it, except in cases where the mother’s life was in jeopardy. These illegal abortion procedures were extremely dangerous and often led to the death of the woman. Due to this problem, many women began fighting against the restrictive laws, causing some states to relax their abortion laws. These states allowed abortion in order to protect the health of the woman, as long as they received the consent of a board of doctors and the patient’s own physician. While these new laws increased abortion safety for many women, they required women to travel to these specific states. This discriminated against poor women, as only the wealthy could afford to travel and find a physician willing to certify and perform the abortion. While the relaxation of state abortion laws increased the accessibility and safety of abortions for wealthy women, the matter had to be brought to court in order to protect all women.

Government involvement in sexual matters began being questioned in court in the second half of the nineteenth century. These cases argued that the government does not have the right to regulate sexual matters based on the individual’s right to privacy. While this right is not explicitly guaranteed in the Constitution, it is based on the Due Process Clause in the Fourteenth Amendment, which has been understood as protecting fundamental rights against governmental encroachment. In 1965, the Supreme Court ruled in Griswold v. Connecticut that restricting access to contraceptives violated the right to privacy implied in the Constitution. The Court said that outlawing contraceptives infringed on the privacy of married couples to make their own decisions. In this ruling, the Court identified privacy as a value fundamental to the American way of life and the rights established in the Bill of Rights. The interpretation of the Due Process Clause as protecting personal privacy became the basis for challenging restrictive abortion laws throughout the country.

The decision made in Griswold v. Connecticut inspired many women to fight against state abortion laws, as they understood abortion as being Constitutionally protected by the right to privacy. In 1970, Norma McCorvey, known as Jane Roe, sued district attorney Henry Wade because she believed the abortion ban, in her home state of Texas, was unconstitutional. McCorvey, an unmarried woman, became pregnant in 1969 and wished to terminate the pregnancy. Since Texas law made an abortion not intended to save the life of the woman a felony, McCorvey was unable to receive the desired procedure. She believed that this was discriminatory against the poor, as she did not have the funds for interstate travel.

McCorvey and her attorneys argued that the Texas law violated the equal protection and personal liberty established in the Fourteenth Amendment. They stated that the right to privacy is implicitly implied in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. They argued that the ban endangered the career and finances of pregnant women, as they could lose their job for being pregnant and few employers provided maternity leave. Due to the cost of travel, this ban required many low-income women to receive dangerous illegal abortions, putting their lives at risk. They argued that abortion is a safe medical procedure, and the law is too vague for doctors to determine whether a woman’s life is at risk.

Doctors were afraid that they would be put in jail for a wrong decision based on a misinterpretation of the law. Additionally, they cited the fact that in the nineteenth century, when the Fourteenth Amendment was written, fewer restrictive abortion laws existed, showing that the framers of the Amendment did not intend for it to apply to fetuses. In 1970, a Texas district court ruled the ban unconstitutional on the basis of the Ninth Amendment. Wade immediately appealed the case directly to the Supreme Court who agreed to hear the case.

In 1973, the Supreme Court reached a decision on Roe v. Wade, stating that the Texas law was unconstitutional and legalizing abortion in many cases. Although the ruling abolished many restrictive abortion laws, the majority decision set a weak precedent due to its foundation in the implied right to privacy and medically based trimester framework. In the majority opinion, Justice Harry Blackmun argued that the right to privacy, implied in the Fourteenth Amendment as personal liberty and restriction on state action and in the Ninth Amendment as the reservation of rights to the people, is broad enough to include the right for a woman to decide whether to terminate a pregnancy without the restriction of the law.

Blackmun argued that this right to privacy gave women the right to consult with her doctor and decide the course of action that would cause the least detriment to her physical and mental health. The majority opinion created a trimester framework, based on medical research, in order to protect state interests in abortion regulation. During the first trimester, the decision forbade the state from intervening as medical research stated that the rate of mortality in childbirth was higher than the rate of mortality during abortions.

After the first trimester, the Court allowed the state to regulate abortion in ways that are related to the mother’s health, in order to protect the health of women. The decision allowed the states to regulate and ban abortion based on the interest of potential life only after the fetus was viable, with exception to cases when the mother’s life is in danger. This decision set a bad precedent because the reasoning was not about the woman, it was about the medical procedure and the opinion of the physician.

Immediately following the decision, Roe v. Wade faced a lot of criticism from the American public due to the weak legal arguments. Many anti-abortion activists believed that the matter should have been left to the states because nothing is explicitly written in the Constitution. They believed that since the Constitution did not say anything on the matter, the framers were implying that this was a decision to be made by the people. While the anti-abortion movement existed prior to the Roe v. Wade, it was fairly small and heavily Catholic. Following the decision, the movement grew to include activists and state legislators who were worried about the same law applying to all states and the fact that it could only be changed on a national level. During this time, the anti-abortion movement began publicizing their cause as a human rights and civil rights issue, equating legal abortions to the Dred Scott decision, as fetuses were not being considered citizens and therefore were denied the rights in the Constitution. This movement, caused by the weak legal arguments of Roe v. Wade, created polarization among the American people, as each side continued to attack the other.

Following the Roe v. Wade decision, many states created harsh obstacles in order to circumvent the decision. In 1982, Pennsylvania passed the Abortion Control Act, requiring women to give “informed consent” before receiving an abortion and imposing a twenty-four hour waiting period before the abortion could be received. During the waiting period, women would be provided with information about abortions, often convincing them that they did not want the procedure. The law also required minors to obtain consent from their parents and wives from their husbands. Planned Parenthood of Southeastern Pennsylvania sued the state, arguing that the Abortion Control Act violated the ruling made in Roe v. Wade.

In 1992, the Supreme Court ruled on Planned Parenthood v. Casey, largely ending the legal push to overturn Roe v. Wade. Although the majority opinion of the case changed many of the legal arguments established in Roe v. Wade, it began by upholding the fundamental right to have an abortion. In the joint opinion, Justices Anthony Kennedy, David Souter and Sandra Day O’Connor explained that they upheld this constitutional right because of the fifteen year precedent. They believed that changing the precedent would be seen as caving to political pressures, without an understanding of law and legal precedent. Instead of relying on the perceived right to privacy, the court based their opinion solely on the guarantee of liberty established in the Due Process Clause of the Fourteenth Amendment.

This created a more stable legal argument, as the text being cited comes directly from the Constitution and is no longer implied. This shifted the focus from the right to medical privacy to the right for a woman to make her own decisions, creating an argument that aligned with the rights that were being pursued by women. In this opinion, the Court recognized the pain caused by depriving women of this liberty, since carrying an unwanted pregnancy to full term can cause anxiety and physical health problems, pain that only she can feel. The opinion recognized the critical role that the Roe v. Wade decision played in the lives of many American women, and therefore upheld the essential ruling while shifting the focus closer towards the woman.

As a result of the changes the Planned Parenthood v. Casey decision made to Roe v. Wade, the ruling served as a compromise for the more conservative parts of the country, as it gave states more choice in creating abortion laws. The framework established in Planned Parenthood v. Casey eliminated the trimester framework established in Roe v. Wade, making more room for laws meant to restrict abortion. Instead of the state needing a “compelling interest” to create an abortion law, the opinion allowed states to create any abortion law that did not cause an “undue burden” on a woman who wished to receive an abortion.

The Justices argued that a state abortion regulation violated a woman’s personal liberty if it caused her an “undue burden” in the decision making process or in the ability to obtain an abortion. While the Court did not consider informed consent laws, waiting periods or requiring parental notice for minors undue burden, requiring spousal notice was considered an infringement on the woman’s liberty. The Court argued that informed consent laws and waiting periods were not undue burdens because they gave the woman more choice, allowing her to be completely informed and sure of her decision. In the case of spousal consent laws, the Court recognized the pain a woman would be put through in order to obtain the consent of an abusive spouse.

This was considered an undue burden, as the women could be harmed in order to receive the consent needed to have an abortion. The Court stated that in order for an abortion law to infringe on the liberty of a woman, it must pose a substantial obstacle to her ability to obtain a safe abortion. By creating a system which gave the states a greater say in abortion laws, while still upholding the fundamental constitutional right for a woman to have an abortion, the decision of Planned Parenthood v. Casey created a compromise between the polarized opinions of the American public.

The Planned Parenthood v. Casey ruling largely ended the legal campaign to have the Supreme Court overturn Roe v. Wade because it creates a middle ground between the pro-life Republicans and pro-choice Democrats. The Justices of the plurality opinion wrote that this ruling was meant to be the end of the public debate about the constitutionality of reproductive choice. They stated that the Court’s decision takes into account both sides of the national debate and forms a “common mandate rooted in the Constitution,” which both sides should accept. Through this compromise, the Justices worked to reaffirm the fact that their decision was not about political pressure, but about their interpretation of the meaning of the Constitution.

The ruling became more consistent with the Constitution’s Tenth Amendment by giving the complete control over abortion regulation in each state, taking away the strong federal regulation established in Roe v. Wade. While the ruling made in Planned Parenthood v. Casey did not satisfy the moral beliefs of the entire country, it created a stronger precedent through a compromise of both sides. The ability for the plurality of Justices writing the Planned Parenthood v. Casey decision to create a compromise between the two polarizing opinions of the country, created a strong legal standing for the continuation of the essential ruling of Roe v. Wade.

The Supreme Court decision of Planned Parenthood v. Casey, was essential in the preservation of Roe v. Wade because it shifted the Constitutional argument from an implied right to privacy to the stated right of individual liberty. The elimination of the trimester framework to allowed states to create more restrictive abortion laws, creating a compromise between the two polarized sides of the American public. While the ruling was not popular, it was vital for the conservation of abortion rights in the United States, because it used arguments rooted in Constitutional law and took into account both sides of the American public.

The Legacy of Roe v. Wade essay

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The Legacy of Roe v. Wade. (2022, Mar 28). Retrieved from https://samploon.com/the-legacy-of-roe-v-wade/

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