Roe v. Wade (1973)
Judicial activism and judicial restraint are two opposing philosophies when it comes to the Supreme Court justices' interpretations of the United States Constitution; justices appointed by the President to the Supreme Court serve for life, and as a result their decisions shape the lives of people for a long time to come.
The primary responsibility of the Supreme Court is to discuss and settle all matters that warrant federal attention. As a result, The Supreme Court holds a influential power on public policy. To do this, the Court can govern in a manner that can be described as either judicial activism or judicial restraint. When establishing policy, the Court is said to be following a role of judicial activism. When simply reaffirming a policy, it is said to be following a role of judicial restraint. (Sidlow / Henchen, 2006)
Barrow’s Law Dictionary defines judicial activism as "a theory of behavior that advocates basing decision not on the judicial precedent but on achieving what the court perceives to be for the public welfare or what the court determines to be just and fair on the facts before it. Barrow’s Law Dictionary defines judicial restraint as “the theory of judicial behavior that advocates basing decisions on grounds that have been pervious defined by judicial precedent rather than on the basis of achieving some public good, which is viewed as the proper role of the legislature.” (Gifis, 2003 p. 277-278)
A "restrained" jurist, attempting to hold to the "original intentions" of constitutional provisions, must actively strike down statutes passed by a legislature, which repeatedly over-steps the bounds of those provisions. An "activist" jurist may passively accept expansive legislative action of a sort deemed consistent with general constitutional "values," even if lacking specific constitutional authorization or entering a "gray area" of constitutional prohibitions.
In my personal view, Roe v. Wade would fall under judicial activism. Roe v. Wade is one of the most controversial and politically significant cases in U.S. Supreme Court history. Its lesser-known companion case, Doe v. Bolton 410 U.S. 179 (1973), was decided at the same time. This case is about a pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws. These laws prohibit procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. Roe sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes. Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe clinical conditions"; that she was unable to get a "legal" abortion in Texas because her life did not appear to be endangered by the continuation of her pregnancy; and that she could not meet the expense of traveling to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they reduced 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 herself and all other women" similarly situated. (410 U.S. 113 Roe v. Wade)
This case also included a licensed physician (James Hubert Hallford). In his complaint he alleged that he had been arrested in the past for violations of the Texas abortion statutes and that two prosecutions were pending against him. Hallford described conditions of patients who came to him looking for abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a result, the statutes were vague and indeterminate, in violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to privacy in the doctor- patient relationship and his own right to practice medicine, rights he claimed were a guarantee by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. (410 U.S. 113 Roe v. Wade)
John and Mary Doe, a married couple, filed a companion lawsuit to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a "neural chemical" disorder; that her physician had "advised her to avoid pregnancy until such time as her condition has materially improved" that, pursuant to medical advice, she had discontinued use of birth control pills; and that if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue "on behalf of themselves and all couples similarly situated.” They separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, not ready for parenthood, and impairment of the wife's health. (410 U.S. 113 Roe v. Wade)
A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justifiable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and over broadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justifiable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross- appealed from the District Court's grant of declaratory relief to Roe and Hallford. (410 U.S. 113 Roe v. Wade)
“The Supreme Court heard arguments for Roe v. Wade in December 1971. After the justices debated the issues, Chief Justice Warren Burger recommended that the case be reargued, stating, “These cases…are not as simple for me as they appear to be for the [other justices].” The Court then ordered a second round of arguments, which it heard in October 1972. Finally, in January 1973 the Court decided 7-2 in favor of Roe. “ (MSN, Encarta)
Justice Harry A. Blackmun wrote the Court’s majority opinion, which is the written document that announces the Court’s decision and explains its reasoning. At the beginning of his opinion, Blackmun noted 'the sensitive and emotional nature of the abortion controversy' and the 'vigorous opposing views' held by many Americans. He also noted that 'one's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.’ However, having addressed these difficulties, Blackmun pointed out the need to resolve the issue of abortion based on an interpretation of the Constitution. (MSN, Encarta)
The Roe Court deemed abortion a fundamental right under the Constitution, in so doing it subjected all laws attempting to restrict it to the standard of strict scrutiny. Even though abortion is still considered a fundamental right, subsequent cases, notably Planned Parenthood of Southeastern Pennsylvania v. Casey, Stenberg v. Carhart, and Gonzales v. Carhart have affected the legal standard. (410 U.S. 113 Roe v. Wade)
The ruling of the Roe Court, declined to accept the district court's Ninth Amendmentinterpretation, and in its place asserted that the "right of privacy, whether it be founded in the Fourteenth Amendment's notion of personal liberty and limitations upon state action, as this Court feels it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, “is broad enough to cover a woman's decision whether or not to terminate her pregnancy.” (410 U.S. 113 Roe v. Wade) Justice Douglas, in his concurring opinion from the companion case Doe v. Bolton, stated more emphatically that, "The Ninth Amendment obviously does not create federally enforceable rights.” (410 U.S. 179 (1973) Doe v. Bolton) Thus, the Roemajority rested its opinion squarely on the Constitution's due process clause.
In my personal opinion, I feel that the case was decided correctly. I think that a majority of the justices put aside there personal feelings and decided the matter based on their interpretation of the fourteenth amendment’s due process clause. I think that women should have a right to chose whether or not to terminate a pregnancy. I do however feel that there should be some restrictions applied to abortion. I feel that minors must have parental or guardian consent to obtain one. It is a medical procedure and only life threating medical procedures can be done on minors without parental consent. I also feel that abortions past the third month should only be done if necessary to preserve the heath of the mother. Another factor that might be taken into consideration is if the fetus is healthy. I think that the parents have a right to decide to terminate a pregnancy if the fetus is malformed or has little chance at survival due to genetic or medical conditions. The decision in Roe v. Wade has not had any personal impact on my life, but I feel that if it were overturned it would do more harm than good because it would be a defeat for all women to have the right to chose taken way and it would violate women’s right to privacy. I feel that abortions would still happen even if they were illegal but they would endanger women’s lives.
References
410 U.S. 179 (1973) Doe v. Bolton located on Cornell Law School Website athttp://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0179_ZS.html last accessed on April 3, 2008
Gifis, Steven (2003) Barron’s Law Dictionary Fifth Edition Hauppauge, New York. Barron’s Educational Series Inc.
Roe v. Wade located on MSN’s Encarta athttp://encarta.msn.com/encyclopedia_761595572/roe_v_wade.html last accessed on April 4, 2008
410 U.S. 113 Roe v. Wade located at Cornell Law School Website onhttp://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZS.html last accessed on April 2, 2008
Sidlow/Henchen (2006) Power, People and Politics: An Introduction to American Government, Mason, OH. Thomson Wadsworth
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