brown vs boe roe vs wade

8/7/2019 brown vs boe roe vs wade

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Two major cases that changed the social law of United States were Brown

vs. Board of Education and Roe vs. Wade. Roe vs. Wade case was in 1859 and

stated that the Texas abortion law violated women's constitutional right to have an

abortion. It was ruled in favor of Roe and struck down the Texas abortion law as

unconstitutional. Brown vs. Board of Education was in 1954 and was over the

racial segregation of public schools that denied black school children equal

protection of the law under the Fourteenth Amendment.

Roe vs. Wade: The Decision and its Impact on American Society

"The Court today is correct in holding that the right asserted by Jane Roe is

embraced

within the personal liberty protected by the Due Process Clause of the

Fourteenth

Amendment. It is evident that the Texas abortion statute infringes that right

directly.

Indeed, it is difficult to imagine a more complete abridgment of a

constitutional freedom

than that worked by the inflexible criminal statute now in force in Texas.

The question

then becomes whether the state interests advanced to justify this abridgment

can survive

the 'particularly careful scrutiny' that the Fourteenth Amendment here

requires. The

asserted state interests are protection of the health and safety of the

pregnant woman,

and protection of the potential future human life within her. But such

legislation is not

before us, and I think the Court today has thoroughly demonstrated that these

state

interests cannot constitutionally support the broad abridgment of personal

liberty workedby the existing Texas law. Accordingly, I join the Court's opinion holding

that that law

is invalid under the Due Process Clause of the Fourteenth Amendment" (Craig

and O'Brien

17).

On January twenty-second, 1973 Justice Harry Blackmun delivered the opinion

of the

Supreme Court regarding the Roe vs. Wade case. A pregnant single woman, "Jane

Roe,"


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brought a class action lawsuit challenging the constitutionality of the Texas

criminal

abortion laws, which proscribed procuring or attempting an abortion except on

medical

advice for the purpose of saving the mother's life. Norma McCorvey, the real

name of the

plaintiff, was young and divorced at the time, searching for a solution to

her unplanned

pregnancy. "No legitimate doctor in Texas would touch me," stated McCorvey.

"There I was

- pregnant, unmarried, unemployed, alone and stuck" (Craig and O'Brien 5).

The

plaintiff's assertion was that prohibiting abortion at any time before birth

violated a

woman's constitutional right to privacy. The Supreme Court later agreed with

Mrs.

McCorvey, justifying the legality of abortion under the fourteenth amendment.

A person's

right to privacy now extended to choosing an abortion. Although the Court

avoided the

issue of when life actually begins, abortion became legal under this landmarkSupreme

Court decision. The debate over the legality of abortion had taken place in

America for

several decades, and the final decision rendered by Roe vs. Wade resonated

among all

Americans, influencing society to date.

Until the last third of the nineteenth century, when it was criminalized

state by state

across the land, abortion was legal before "quickening," which is

approximately the

fourth month of pregnancy. Colonial home medical guides gave recipes for

instigating

abortions with herbs that could be grown in one's garden or easily found in

the woods. By

the mid-eighteenth century, commercial preparations were widely available.

Unfortunately,

these drugs were often fatal. The first statutes regulating abortion, passed

in the 1820s

and 1830s, were actually poison-control laws: the sale of commercial

abortifacients was

banned, but abortion itself was not outlawed. Despite these new laws, the

abortion

business was booming by the 1840's, including the sale of illegal drugs,

which were

widely advertised in the popular press.

However, this trend would soon change. Following the 1840's, abortion would

soon be underattack, and a string of anti-abortion laws would be passed until the

twentieth century.

The leading force behind the criminalization of abortion was physicians and

the American

Medical Association. The AMA was founded in 1847, and the illegalization of

abortion was

one of its highest priorities. To the growing movement, "abortion was both an

immoral act


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and a medically dangerous one, given the incompetence of many of the

practitioners then"

(Joffe 28). However, the opposition went beyond these factors. To many people

during the

end of the nineteenth century, abortion represented a threat to male

authority and the

traditional role of a woman in the time period. Abortion was a symbol of

unbridled female

sexuality, expressing selfish and self-indulgent qualities. The AMA's

Committee on

Criminal Abortion expressed this view blatantly in 1871. "She yields to the

pleasures -

but shrinks from the pains and responsibilities of maternity; and, destitute

of all

delicacy and refinement, resigns herself, body and soul, into the hands of

unscrupulous

and wicked men" (Joffe 29). As the twentieth century dawned, over forty

states had

completely outlawed abortion unless the mother's life was in direct harm, and

many others

had placed strict regulations. However despite these emerging laws, peoplestill

performed abortions illegally for decades until the Roe vs. Wade decision. A

study

performed by Frederick Taussig in 1936 recorded an estimated half million

illegal

abortions. In 1953, ninety percent of all premarital pregnancies were aborted

illegally,

and twenty percent of married couples performed abortions. Illegal abortions

rose to over

a million a year until Roe vs. Wade. Although the law dictated the morality

of abortion,

abortion was still a considerable aspect of society.

The Roe vs. Wade decision was first argued in December 1971, and had been

before the

Supreme Court for over a year. Although this decision would later be

intensely analyzed

and debated, little attention was brought upon the case at the time. Chief

Justice Burger

opened the Court's oral arguments, and each side had only thirty minutes to

present their

case and answer questions. Sarah Weddington, the head lawyer defending Norma

McCorvey

argued that abortion needed to be legalized beyond in the case where a

woman's life is

threatened. The physiological and psychological harms also warranted an

abortion.

However, since the Supreme Court has no jurisdiction over public policy,Weddington

argued that current abortion laws violated the fourteenth amendment. The

fourteenth

amendment guarantees the right to liberty without due process of law, and the

decision

contended this right was extended to a woman's right to choose to be

pregnant. In her

closing argument, Weddington stated if "liberty is meaningful... that liberty

to these


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women would mean liberty from being forced to continue the unwanted

pregnancy" (Craig and

O'Brien 17).

Jay Floyd, the assistant attorney general of Texas, next presented his case

against the

legalization of abortion. Weddington had argued that many women had no other

choice

besides abortion because of their socioeconomic status. However, Floyd

contended that

despite external factors, each person had free autonomy. "Now I think she

makes her

choice prior to the time she becomes pregnant. That is the time of her

choice. It's like,

more or less, the first three or four years of our life we don't remember

anything. But

once a child is born, a woman no longer has a choice, and I think pregnancy

then

determines that choice" (Craig and O'Brien 17). Thus, Floyd contended, the

fourteenth

amendment was not violated since pregnancy was based on free will, and

liberty was notdenied. If pregnancy was a deliberate choice on the woman's part, then

abortion was not

warranted.

Another crucial aspect of the Roe vs. Wade trial was the status of when a

fetus is

guaranteed constitutional rights. In response to Texas' harsh abortion

restrictions,

Floyd explained that Texas "recognized the humanness of the embryo, or the

fetus" and had

"a compelling interest because of the protection of fetal life" (Craig and

O'Brien 17).

However, there were several flaws with this statement in the court. First,

the topic of

the Court was not the constitutional rights of embryos, but whether abortion

violated a

person's right to liberty. Second, no state law or court decision had equated

abortion

with murder. Thus, Floyd's contention amounted to a mere personal opinion,

with no

bearing on the case. The Court needed to uphold the constitutional rights of

the woman

before protecting the "rights" of the unborn fetus. The fourteenth amendment

applies only

"to all persons born or naturalized in the United States," and if the Court

guaranteed

the fourteenth amendment to unborn children, it would be an extreme case of

judicialactivism (Craig and O'Brien 20).

After two years listening to arguments, the Supreme Court finally made its

decision. The

right to privacy and liberty was broad enough to encompass a woman's decision

for

abortion. The fourteenth amendment guaranteed personal liberty, which

includes a woman's

body and unborn fetus. Although the Court established the legality of

abortion, they left


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the responsibility of implementation to the states. Like Brown vs. The Board

of Education

of Topeka, a general decision on constitutionality needed to be interpreted

and

implemented by local governments. "Where certain 'fundamental rights' are

involved, the

Court has held that regulation limiting these rights may be justified only by

a

'compelling state interest,' and that legislative enactments must be narrowly

drawn to

express only the legitimate state interests at stake" (Craig and O'Brien 27).

Although

the court did not provide any specific methods of implementation, it did set

broad

guidelines regarding the stage of the fetus. A mother had the sole choice to

abort the

child in the first trimester, but limitations on abortion were allowed in the

second and

third trimesters if the right to liberty and privacy of the mother was still

preserved.

The initial reactions to the Roe vs. Wade decision were intense and extreme,as abortion

remains to be an extremely controversial issue. The president of Planned

Parenthood

hailed the decision as "a wise and courageous stroke for the right of

privacy, and for

the protection of a woman's physical and emotional health" (Craig and O'Brien

32).

However, there were as many supporters of the decision as dissidents.

Cardinal Terence

Cooke attacked the Justices, claiming that "whatever their legal rationale,

seven men

have made a tragic utilitarian judgment regarding who shall live and who

shall die"

(Craig and O'Brien 32). Roe vs. Wade elevated the abortion issue to the

national

spectrum, becoming a source of political and social struggle in the years to

come. On the

tenth anniversary of the decision, The Washington Post illustrated its effect

on society.

"[Roe vs. Wade] has drastically changed the Court's image, fostered wholesale

attack on

'judicial activism' and mobilized thousands of supporters and opponents of

legalized

abortion in a debate that has reshaped the political terrain in many states

and, at

times, has virtually halted the work of Congress. Few court decisions have

had a moreimmediate impact on such a personal aspect of American life" (Craig and

O'Brien 35).

The Roe vs. Wade decision has affected all aspects of society, from the role

of the

Supreme Court to the human status of an unborn fetus. Many scholars refer to

the case as

the "Dred Scott" of the twentieth century. The decision sparked a national

discussion on


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judicial activism, and the role the Supreme Court has on public policy. No

other case

like Roe vs. Wade had had such a direct impact on public law. Furthermore,

the case drew

an imaginary line, diving the country into either the pro-life or pro-choice

category.

Almost immediately after the decision, a multitude of pro-life and pro-choice

groups were

formed, and abortion has remained a pressing political, social, and moral

issue. No other

subject has resonated such disparity and importance in American politics.

Finally, the

Roe vs. Wade decision is considered a representation of the changing society

during the

1970's. In the past, abortion was highly restricted and opposed, mimicking

the

conservative society. However, as the 1970's marked a rise in liberalism and

the

importance of individual freedom, the Roe vs. Wade decision to legalize

abortion mirrored

this willingness to embrace a person's autonomy. Roe vs. Wade marked adramatic change in

government, politics, and society.

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brown vs boe roe vs wade