Landmark court ruling

ABORTION activist Norma McCorvey died on Saturday February 19, 2017 in Katy, Texas, US at the age of 69. She was the anonymous plaintiff in the Roe v Wade case, which was the landmark 1973 Supreme Court ruling that legalised abortion in the US and reshaped the nation’s social and political landscapes and inflamed to this day one of the most divisive controversies of the past four and a half decades.

Since the ruling, about 50 million legal abortions have been performed in the US. Ethical, legal and theological debates about abortion continue even today despite the ruling, especially in religious groups, governing organisations and political movements, and they have influenced elections, legislations and the lives of ordinary people through films, books, periodicals, the internet and other forums.

At the core of the substance, McCorvey, who was known as Jane Roe in court papers, became a famous character to millions of Americans.

She was a fairytale figure, a representation of what millions of American women dreamed of under an era of legalised abortion than who this woman was and what prompted her towards this action.

Jane Roe was lifted by chance into a nationwide and even global spotlight she never sought. To this day, almost every law student in the Western world globally would be required to read the Roe V Wade case as the court’s decision covers many areas of law, social and moral arguments, constitutional and state law conflicts and resolutions, theological, ethical and legal history and arguments on the abortion debate, and the need to seek a just resolution over many overriding issues.

The substantive matter at the core was a single woman living in Dallas County, Texas named Roe, who instituted a federal action in March 1970 against the District Attorney of the State of Texas. She sought judgment that the Texas criminal abortion laws were unconstitutional on their face, and sought an order restraining the defendant from enforcing the Texas laws on abortion.

She claimed that the Texas statutes were unconstitutionally vague and that they curtailed her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint, Roe purported to sue “on behalf of her and all other women” in similar situations.

The case was also explored in a television movie Roe v Wade starring Holly Hunter, who won an Emmy for her role as Jane Roe. The principal thrust of the attack on the Texas statutes was that they improperly invaded a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy.

Roe would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s due process clause or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights.

In their opinion, the judges said that Texas (Henry Wade, the Dallas County district attorney, was the defendant in the class-action suit) urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception.

The judge reserved the judgment on this issue, saying that we need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

He further clarified that it was sufficient to note briefly, the wide divergence of thinking on this most sensitive and difficult question, adding that there had always been strong support for the view that life did not begin until live birth.

In areas other than criminal abortion, the law had been reluctant to endorse any theory that life, as we recognise it, began before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth.

The judges did not agree that by adopting one theory of life Texas could in effect override the rights of the pregnant woman that was at stake.

The judges reiterated, however, that the State did have an important and legitimate interest in preserving and protecting the health of the pregnant woman and also had an interest in protecting the “potentiality” of human life.

These interests, they stated, were separate and distinct saying that each grew in substantiality as the woman approached term and, at a point during pregnancy, each became “compelling”.

The judges stated that with respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, was at approximately the end of the first trimester.

It followed that from and after that point, a State could regulate the “abortion procedure” to the extent that the regulation reasonably related to the preservation and protection of maternal health.

This meant that for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, was free to determine, without regulation by the State, which, in his medical judgment, the patient’s pregnancy should be terminated. If that decision was reached, the judgment may be effectuated by an abortion free of interference by the State.

Measured against these standards, the judges noted that the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother”, swept too broadly and was illegal and unconstitutional as the statute made no distinction between abortions performed early in pregnancy and those performed later, and was limited to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, could not survive the constitutional attack made upon it.

On January 22, 1973, the court ruled 7-2 in Roe v Wade that privacy rights under the due process and equal rights clauses of the 14th Amendment extended to a woman’s decision to have an abortion in a pregnancy’s first trimester “free of interference by the state”, in the words of Justice Harry A. Blackmun, who wrote the opinion.

* Dr Sushil K Sharma is an associate professor of meteorology at FNU. Views expressed are his and not of this newspaper or FNU.

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