Wednesday, January 22, 2003

What Did Roe Decide? Part I. Roe v. Wade, 410 U.S. 113, decided 30 years ago today, was a lengthy. sweeping opinion which addressed a number of issues. I'd like to look at exactly what the Court announced in Roe, and then the Doe v. Bolton case, which accompanied it. I'll break it down into segments, this first dealing with some of the preliminary issues, not related directly to abortion.

According to the Justice Blackmun's opinion, the case was initially filed by Jane Roe, which we now know was the psuedonym for Norma McCorvey (see her story here). McCorvey, represented by Sarah Weddington, sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional and an injunction restraining the District Attorney in Dallas from enforcing the statutes. Her petition for relief was amended several times, first, to seek class relief. Second, she was joined by a local doctor, James Hubert Hallford, who wanted to perform abortions. Last, to complete the legal strategy, a pseudonymous married couple, John and Mary Doe (not to be confused with the Mary Doe in the companion case from Georgia) were also added.

First the Court had to address a number of issues, namely whether the named parties had standing to challenge the Texas laws and, somewhat related, whether the parties actually had a stake in the controversy. The second issue was a particular problem for Jane Roe who had filed the case in March, 1970, claiming to be pregnant at that time. Since it was over 1,000 days from the filing of the case to the Supreme Court's decision and the normal pregnancy runs about 266 days. Blackmun noted that the birth of a child
makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be "capable of repetition, yet evading review."
Actually, I must admit that I am being kind to the Justice, because he didn't say birth of the child, he wrote "the normal 266-day human gestation period is so short that the pregnancy will come to term" and then referred to the event we know as birth as "that termination." [I pause here to wonder about Harry's childhood -- did he have a happy termination day, I wonder.]

In any event, the Court held "Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot." Interestingly, especially in light of the rest of the opinion, and what would develop, the Court held that the physician and the married couple did not have standing to challenge. Referring to the married couple, Blackmun wrote: "Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health."

Next, the Court (or to be honest, Justice Blackmun) devotes 18 pages to what he "feels" is a "desirable brief[ ] survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws." (pp 130-147)

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