Roe and Doe
Abortion | The sister cases behind the shaky legal foundation of elective abortion in the United States
by Leah Hickman
Posted 1/22/21, 03:10 pm
On Jan. 22, 1973, the Supreme Court handed down decisions in two cases that legalized abortion on demand. The court found in Roe v. Wade that abortion is a constitutional right, and the Doe v. Bolton decision expanded that right to women in practically any situation. Legal experts at the time saw problems with the rulings. Now, 48 years later, many still regard them as unsettled law.
The plaintiff in Roe v. Wade was a young woman named Norma McCorvey (called “Jane Roe” in the court documents), who was unmarried, pregnant with her third child, and unable to get an abortion. McCorvey’s lawyers challenged Texas’ law that only allowed abortions if the life of the mother was in danger. McCorvey later said she felt used by her lawyers. Roe v. Wade made it to the Supreme Court, where the justices voted 7-2 in favor of overturning the law. According to the majority opinion, the Constitution’s 14th Amendment implied a right to abortion by protecting a right to privacy.
The same day, the same majority also handed down its decision in Roe’s sister case, Doe v. Bolton. It challenged a Georgia law that protected unborn babies except in situations of rape, incest, fetal abnormality, or severe threats to the mother’s life or health. The lawyers argued these and other restrictions in the state were unconstitutional. The plaintiff, another young pregnant woman named Sandra Besing, known as “Mary Doe,” later claimed she was “young and ignorant,” did not know about the case, and would not have supported it if she did.
The court’s decision in Doe ultimately gave abortionists broad powers to determine what constituted a threat to a woman’s health. The justices ruled it could include physical, emotional, psychological, and familial factors, including the woman’s age. Clarke Forsythe, senior counsel for Americans United for Life, said that Doe made the United States one of only seven countries that doesn’t offer federal protection for babies after fetal viability, or 20 weeks.
Legal experts immediately saw problems with the rulings.
“I find nothing in the language or history of the Constitution to support the court’s judgment,” Justice Byron White, one of the two opposing votes, wrote in his dissent of Doe. “The court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”
Even liberal Justice Ruth Bader Ginsburg, who joined the court in 1993, said the decisions went too far by stealing the task of lawmaking from the state legislators. “I do not suggest that the court should never step ahead of the political branches in pursuit of a constitutional precept,” she wrote in 1993, but she said Roe galvanized a “well-organized and vocal right-to-life movement” that seemed to halt pro-abortion legislation making its way through state legislatures at the time.
Numerous Supreme Court cases and conservative-appointed justices since 1973 have dashed pro-lifers’ hopes for a vote to overturn or at least chip away at Roe. Republican-appointee Chief Justice John Roberts recently voted against a Louisiana pro-life law in June Medical Services v. Russo.
But Forsythe said inherent defects continue to haunt the rulings. A strong pro-life movement, advancements in technology, and the numerous state-level challenges to the decisions have also kept them from becoming settled law. Pro-lifers think the strongly pro-life Supreme Court with new Justice Amy Coney Barrett could overturn both pro-abortion rulings.
“I think we should be proud and gratified on the 48th anniversary that pro-life agitation for 48 years has kept Roe vs. Wade unsettled, and, again, that predictions are widely voiced that this court is going to overturn Roe vs. Wade,” he said. “If precedent is unsettled, then it doesn’t deserve respect as precedent.”
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