Roe v. Wade

Roe v. Wade

Supreme Court of the United States
Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973
Full case name: Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County
Citations: 410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
Prior history: Judgment for plaintiffs, injunction denied, 314 F. Supp. 1217 (N.D. Tex. 1970); probable jurisdiction noted, 402 U.S. 941 (1971); set for reargument, 408 U.S. 919 (1972)
Subsequent history: Rehearing denied, 410 U.S. 959 (1973)
Holding
Texas laws criminalizing abortion violated women's Fourteenth Amendment right to choose whether to continue a pregnancy. U.S. District Court for the Northern District of Texas affirmed in part, reversed in part.
Court membership
Chief Justice: Warren E. Burger
Associate Justices: William O. Douglas, William J. Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Franklin Powell, Jr., William Rehnquist
Case opinions
Majority by: Blackmun
Joined by: Burger, Douglas, Brennan, Stewart, Marshall, Powell
Concurrence by: Burger
Concurrence by: Douglas
Concurrence by: Stewart
Dissent by: White
Joined by: Rehnquist
Dissent by: Rehnquist
Laws applied
U.S. Const. Amend. XIV; Tex. Code Crim. Proc. arts. 1191-94, 1196

Roe v. Wade, 410 U.S. 113 (1973),[1] is a landmark judicial opinion regarding privacy and abortion in the United States. According to the U.S. Supreme Court's Roe decision, most laws against abortion violate a constitutional right to privacy under the Due Process Clause of the Fourteenth Amendment. The decision overturned all state and federal laws outlawing or restricting abortion that were inconsistent with its holdings. It is one of the most controversial and politically significant cases in U.S. Supreme Court history, and its lesser-known companion case was decided at the same time: Doe v. Bolton, 410 U.S. 179 (1973).[2]

The central holding of Roe v. Wade was that abortions are permissible for any reason a woman chooses, up until the "point at which the fetus becomes ‘viable,’ that is, potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."[3] The decision prompted national debate that continues to this day over whether terminating pregnancies should be legal (or more precisely, whether a state can choose to deem the act illegal), the role of the Supreme Court in constitutional adjudication, and the role of religious and moral views in the political sphere. Roe v. Wade reshaped national politics, dividing much of the nation into "pro-choice" and "pro-life" camps, and inspiring grassroots activism on both sides.

Critics describe Roe as illegitimate for straying from the text and history of the Constitution, and for imposing abortion policy on the states and Congress contrarily to American principles of federalism and democracy. Some critics of Roe also believe in the personhood of fetal human life, either beginning at conception or later.

Supporters describe Roe as necessary to preserve women's equality, personal freedom, privacy, and the primacy of individual rights, although the opposition to Roe often references the primacy of the individual when referring to the fetus.

Contents

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History of cases

The case originated in Texas in March 1970 at the behest of attorneys Linda Coffee and Sarah Weddington. They filed suit on behalf of Norma L. McCorvey ("Jane Roe") who claimed her pregnancy was the result of rape. McCorvey now says that her accusation was false.

A three-judge district court ruled in favor of "Jane Roe", but refused to grant an injunction against the enforcement of the laws.[4]

Many advocates of liberalizing abortion laws saw promise in this case, as abortion was widely proscribed by state laws at that time.

Both "Jane Roe" and defendant Wade arrived at the Supreme Court on appeal, where the case was argued by Weddington and Texas Assistant Attorney General Jay Floyd on December 13, 1971. The first argument of the case was unimpressive, however, and Justice Blackmun drafted a preliminary opinion that emphasized what he saw as the Texas law's vagueness.[5] Justices William Rehnquist and Lewis F. Powell, Jr. had just joined the Court and hadn't heard the first argument. Chief Justice Burger proposed that the case be reargued, and the justices voted in favor. The case was reargued on October 11, 1972. Weddington continued to represent Roe, but Texas Assistant Attorney General Robert C. Flowers stepped in to replace Texas D.A. Wade.

Douglas threatened to write a dissent from the reargument order, but was coaxed out of the action by his colleagues; his dissent was merely mentioned in the order without further statement or opinion.

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Supreme Court decision

 The court issued its decision on January 22, 1973, with a 7 to 2 majority voting to strike down Texas' abortion laws.  However, the concurring opinions of Chief Justice Burger and Justice Douglas, and the dissenting opinion of Justice White, were issued separately, in the companion case of Doe v. Bolton.
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Abortion

The Roe Court deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny. Though abortion technically remains to this day a fundamental right, subsequent cases, notably Planned Parenthood of Southeastern Pennsylvania v. Casey and Stenberg v. Carhart, have modified the legal standard somewhat.

The opinion of the Roe Court, written by Justice Harry Blackmun, asserted that "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." Abortion before Roe had been subject to criminal statutes since the nineteenth century. Section VI of Blackmun's opinion was devoted to an analysis of historical attitudes, including those of: the Persian Empire, Greek times, the Roman era, the Hippocratic oath, the common law, English statutory law, American law, the American Medical Association, the American Public Health Association, and the American Bar Association.

Without finding what it deemed a sufficient historical basis to justify the Texas statute, the Court identified three possible justifications in Section VII of the opinion to explain the criminalization of abortion: (1) women who can receive an abortion are more likely to engage in "illicit sexual conduct", (2) the medical procedure was extremely risky prior to the development of antibiotics and, even with modern medical techniques, is still risky in late stages of pregnancy, and lastly (3) the state has an interest in protecting prenatal life. As to the first, Blackmun wrote that "no court or commentator has taken the argument seriously" and the statute failed to "distinguish between married and unwed mothers." However, according to the Court, the second and third constitute valid state interests. In Section X, the Court reiterated, "[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman ... and that it has still another important and legitimate interest in protecting the potentiality of human life."

Valid state interests, however, must be weighed against the constitutionally protected rights of individuals in order to determine whether a law is a constitutional exercise of power. Even though the "Constitution does not explicitly mention any right of privacy" the court had previously found support for various privacy rights in several provisions of the Bill of Rights and the Fourteenth Amendment, as well as in the "penumbra" of the Bill of Rights. The court found that a "right of privacy" located in the Due Process Clause of the Constitution is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

However, the Court determined that "arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive." The Court declared, "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."

When weighing the competing interests, the Court also noted that if the fetus was defined as a person for purposes of the Fourteenth Amendment then the fetus would have a specific right to life under that Amendment. However, the Court determined that the original intent of the Constitution up to the enactment of the Fourteenth Amendment in 1868 did not include the unborn. The Court's determination of whether a fetus can enjoy Constitutional protection is separate from the notion of when life begins. To that, the Court said, "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." The Court only believed itself competent to resolve the difficult question of when a right to abortion begins.

Relying on the then-current state of medical knowledge, the decision established a system of trimesters that attempted to balance the state's legitimate interests against the abortion right. The Court ruled that the state cannot restrict a woman's right to an abortion during the first trimester, the state can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health," and in the third trimester, demarcating the viability of the fetus, a state can choose to restrict or even to proscribe abortion as it sees fit.

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Justiciability

An aspect of the decision that attracted comparatively little attention was the Court's disposition of the issues of standing and mootness. The Supreme Court does not issue advisory opinions (those stating what the law would be in some hypothetical circumstance). Instead, there must be an actual "case or controversy", including particularly a plaintiff who is aggrieved and seeks relief. In the Roe case, "Jane Roe," who began the litigation in March 1970, had already given birth by the time the case was argued before the Supreme Court in December 1971. By the traditional rules, therefore, there was an argument that Roe's appeal was moot because she would not be affected by the ruling, and also because she lacked standing to assert the rights of other pregnant women. The Court concluded, however, that the case came within an established exception to the rule, one that allowed consideration of an issue that was "capable of repetition, yet evading review." Justice Blackmun's opinion noted that human pregnancy would normally conclude more quickly than an appellate process. "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied." Such a ruling was critical to the Supreme Court's power to review the case, since the Supreme Court dismissed the physician James Hubert Hallford's intervention and affirmed the dismissal of John and Mary Doe.

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Dissenting opinions

Byron White was the senior dissenting justice.
Byron White was the senior dissenting justice.

Associate Justices Byron R. White and William H. Rehnquist wrote emphatic dissenting opinions in this case. Justice White wrote:

   
Roe v. Wade
I find nothing in the language or history of the Constitution to support the Court's judgment. 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. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
   
Roe v. Wade

Justice White asserted that the Court "values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries." Even though Justice White suggested that he "might agree" with the Court's values and priorities, he saw "no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States." Justice White criticized the Court for involving itself this issue by creating "a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it." Justice White would have left this issue, for the most part, "with the people and to the political processes the people have devised to govern their affairs."

Justice Rehnquist elaborated upon several of Justice White's points, by asserting that the Court's historical analysis was flawed:

   
Roe v. Wade
To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and "has remained substantially unchanged to the present time."
   
Roe v. Wade

From this historical record, Rehnquist concluded that, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." Therefore, in his view, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."

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Controversy over Roe

At first, much of the protest over Roe came from Catholic sources, who had been opposing abortion and contraception for over a century. They were later joined by many Protestants, and by people with more secular interest. Eventually, there were letter-writing campaigns to the Supreme Court. Many pro-life supporters argued life begins upon conception, and thus that the unborn should be entitled to legal protection. Many conservatives and other supporters of federalism objected to the decision as lacking a valid constitutional foundation, maintaining the Constitution is silent on the issue and proper solutions to the question would best be found via state legislatures and the democratic process, rather than through an all-encompassing ruling from the Supreme Court. Some lawyers felt justification could be found in the Constitution, but not in the articles referenced in the decision.

Pro-life protesters have frequently picketed abortion clinics, distributed literature and other forms of persuasion to women considering abortion, and have promoted adoption efforts to steer women away from abortion. More extreme variants of the movement have also developed; abortion doctors have been the targets of harassment and even murder by individuals who claim taking the life of an abortion doctor is actually saving the lives of many human fetuses. However, activists who advocate or practice violence against abortion providers or recipients are consistently denounced by virtually all prominent pro-life groups. Every year on the anniversary of the decision, protesters continue to demonstrate outside the Supreme Court Building in Washington, D.C. in the March for Life.

In response to Roe v. Wade, several states enacted laws limiting abortion, including laws requiring parental consent for minors to obtain abortions, parental notification laws, spousal consent laws, spousal notification laws, laws requiring abortions to be performed in hospitals but not clinics, laws barring state funding for abortions, laws banning most very late term abortions utilizing intact dilation and extraction procedures (referred to as partial-birth abortion by abortion opponents), laws requiring waiting periods before abortion, laws mandating women read certain types of literature before choosing an abortion, and many more. Congress in 1976 passed the Hyde Amendment, barring federal funding for abortion. Abortions are currently prohibited in overseas military hospitals, and the United States is barred from aiding international family planning organizations providing abortion. The Supreme Court struck down several state restrictions on abortions in a long series of cases stretching from the mid-1970s to the late 1980s, but consistently upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).

Some academics also criticized the decision. In a 1973 article in the Yale Law Journal,[6] Professor John Hart Ely criticized Roe as a decision which "is not constitutional law and gives almost no sense of an obligation to try to be." Supreme Court Justice Ruth Bader Ginsburg, and other liberals such as Massachusetts congressman John F. Tierney and editorial writer Michael Kinsley, have criticized the court's ruling in Roe v. Wade as terminating a nascent democratic movement to liberalize abortion laws which they contend might have built a more durable consensus in support of abortion rights.

Some academics supported the decision, including Judith Jarvis Thomson, who before the decision had offered an influential defense of abortion.[7] Several groups have also emerged dedicated to Roe's defense. Many Americans vigorously support abortion rights as necessary to women's equality and personal liberty, just as many Americans view the issue differently. Most prominent among pro-choice groups is the National Abortion Rights Action League, as well as EMILY's List (a pro-choice political action committee). During his lifetime, Harry Blackmun, author of the Roe opinion, also was a determined advocate for the decision, making speeches across the country praising Roe as essential to women's equality and reproductive freedom. During the 1980s and 1990s, pressure grew from these groups for the Democratic Party to take a unified stand in favor of Roe.

Fueled by the intensity of feelings in both its supporters and critics, the controversy over Roe shows no sign of abating. Justice Stephen Breyer delineated the positions of the two camps in his opinion for the Court in 2000's Stenberg v. Carhart:

   
Roe v. Wade
Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death and violating the liberty of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of personal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.
   
Roe v. Wade

In addition to the two groups mentioned by Justice Breyer, it appears from polls that there are also millions of Americans who take an intermediate position.

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'Arbitrary' and 'Legislative'

Internal Supreme Court memoranda surfaced in the Library of Congress in 1988, among the personal papers of Justice Douglas and other Justices, showing the private discussions of the Justices on the case. Blackmun said of the majority decision he authored, "[Y]ou will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to the state legislatures, though he joined Blackmun's decision. Professor Douglas Kmiec testified on Justice Marshall's papers to this effect before the House Judiciary Committee in 1996. The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the Court's decision. The "viability" criterion, which Justice Blackmun acknowledged was arbitrary, is still in effect, although the point of viability has receded toward conception as medical science has found ways to help premature babies survive.

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Roe's role in subsequent decisions and politics

Opposition to Roe on the bench grew as President Ronald Reagan, who supported legislative restrictions on abortion, made federal judicial appointments. However, Reagan has denied that there was any "litmus test":

   
Roe v. Wade
I have never given a litmus test to anyone that I have appointed to the bench…. I feel very stongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We've had too many examples in recent years of courts and judges legislating. They're not interpreting what the law says and whether someone has violated it or not. In too many instances, they have been actually legislating by legal decree what they think the law should be, and that I don't go for. And I think that the two men that we're just talking about here, Rehnquist and Scalia, are interpreters of the Constitution and the law.[8]
   
Roe v. Wade

In addition to White and Rehnquist, Reagan appointee Sandra Day O'Connor began dissenting from the Court's abortion cases, arguing that the trimester-based analysis devised by the Roe Court was "unworkable." Shortly before his retirement from the bench, Chief Justice Warren Burger suggested that Roe be "reexamined," and the associate justice who filled Burger's place on the Court, Justice Antonin Scalia, is a vigorous opponent of Roe. Concerns over a possible overturning of Roe played a major role in the defeat of Robert Bork's nomination to the Court, and the man eventually appointed to replace Roe supporter Lewis Powell, Anthony M. Kennedy, was seen as a potential anti-Roe vote.

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Webster v. Reproductive Health Services

In a 5-4 decision in 1989's Webster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, but did uphold several abortion restrictions and substantially modified the Roe trimester framework. In a concurring opinion, Justice O'Connor pointedly refused to reconsider Roe. Justice Antonin Scalia, in a concurring opinion, refused to join the plurality's opinion because it refused to overrule Roe, and criticized O'Connor's ambiguous position on the matter. Justice Harry Blackmun, by now a passionate defender of his Roe opinion, dissented angrily, arguing that the plurality opinion signaled doom for the abortion right.

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Planned Parenthood v. Casey

With the retirement of Roe supporters William J. Brennan and Thurgood Marshall, and their replacement by judges David Souter and Clarence Thomas, both appointed by President George H. W. Bush, many predicted the demise of Roe. For example, during the confirmation hearings of David Souter, NOW president Molly Yard declared that confirming Souter would mean "ending freedom for women in this country . . . Women will die" [1]; a protest was subsequently called.[2]

In deliberations for Planned Parenthood v. Casey, 505 U.S. 833 (1992), an initial majority of 5 Justices that would have overturned Roe foundered when Justice Kennedy switched sides, resulting in a reexamination of Roe by the Supreme Court in this case that upheld its validity by a 5-4 vote. A plurality of Reagan-Bush appointees, O'Connor, Kennedy, and Souter, reaffirmed that the Constitution protects a right of abortion. Rehnquist and Scalia filed dissenting opinions which were joined by Justices White and Thomas. Scalia's dissent in particular boldy repudiated the central holding of Roe itself, stating that a woman's decision to abort her unborn child is not a constitutionally protected "liberty".

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Stenberg v. Carhart

During the 1990s, attempts were made at the state level to ban certain late-term abortions, which were struck down, again by a 5-4 vote, in Stenberg v. Carhart, 530 U.S. 914 (2000), with Justice Kennedy, co-author of the Casey decision, among the dissenters.

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Congressional ban on partial birth abortion: examined by the Court

Subsequent to Stenberg, Congress passed a law banning partial-birth abortions, which is currently in litigation. The Supreme Court heard arguments in November 2006 on the issue, and a decision in Gonzales v. Carhart is expected in 2007. Despite the Court's previous ruling that banning partial birth abortion is unconstitutional because such a ban would not allow for the health of the mother, the Court is again deciding whether to allow this ban because Congress researched the issue and passed a law reflecting its conclusion that this type of abortion is never necessary for the health of the mother. While the Court can trump Congressional laws if they are unconstitutional, the Court typically defers to Congress's finding of fact. Whether the Court decides for itself if Congress was clearly wrong, defers to the judgement call of Congress if Congress was not clearly wrong but the issue is reasonably disputable, or simply decides to follow Congress is yet to be seen. The case will also illuminate how the newly appointed Justices, John Roberts and Samuel Alito, reason about this and similar issues.

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"Jane Roe" switches sides

"Jane Roe," whose real name is Norma McCorvey, became a member of the pro-life movement following her conversion to Christianity, and now fights to make abortion illegal. In 1998, she testified as follows to Congress:

   
Roe v. Wade
It was my pseudonym, Jane Roe, which had been used to create the "right" to abortion out of legal thin air. But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15, 20 years later and say, "Thank you for allowing me to have my five or six abortions. Without you, it wouldn't have been possible." Sarah never mentioned women using abortions as a form of birth control. We talked about truly desperate and needy women, not women already wearing maternity clothes.[9]
   
Roe v. Wade

In a press conference held on January 18, 2005, McCorvey claimed that she was the "pawn" of Weddington, who was looking for a plaintiff to challenge the Texas state law prohibiting abortion. Using her prerogative as a party to the original litigation, she sought to reopen the case in a U.S. District Court in Texas and have it overturned. Her stance was based on claims made since the decision, claiming evidence of emotional and other harm suffered by many women who have had abortions, and increased resources for the care of unwanted children. On June 19, 2003, Judge David Godbey ruled that the motion was not made within a "reasonable time." The Fifth Circuit Court of Appeals subsequently affirmed that decision. See McCorvey v. Hill, 385 F3d 846 (5th Cir 2004). On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, ending McCorvey's appeal.

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State abortion bans seeking to overturn Roe v. Wade

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South Dakota

On February 24 2006, the South Dakota State Legislature passed a bill that was signed into law by Governor Mike Rounds on March 6 2006. The law purported to make performing all abortions a felony, including those for pregnancies resulting from rape and incest. The bill did make an exception for when a woman's life is in danger, but also directed the physician to make a reasonable effort to save both mother and fetus. Should the doctor fail to save the fetus (that is, if the fetus’s death is an unintended consequence of saving the mother), then the doctor would not have been prosecuted. This law was subsequently repealed in a referendum of November 7 2006.[10]

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Mississippi

Mississippi’s House Public Health Committee voted on February 27 2006, to approve a ban on abortion similar to South Dakota’s. Governor Haley Barbour said he would probably sign the bill into law if it makes it to his desk, though said he would prefer it to have an exception for rape and incest. Mississippi already had some of the strictest state abortion laws, requiring a 24-hour waiting period and counseling for all abortions, and the notification of both parents for minors who seek the procedure. The bill failed after the House and Senate failed to compromise on legislation.[11]

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See Also

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Footnotes

  1. Text of Roe v. Wade from Cornell Law School
  2. Text of Doe v. Bolton from Cornell Law School
  3. Roe v. Wade, 410 U.S. 113, 160 (1973). Medical advances since 1973 have pushed back the point of viability several weeks toward conception.
  4. Roe v. Wade, 314 F. Supp. 1217 (1970)
  5. The Unpublished Opinions of the Burger Court by Bernard (EDT) Schwartz, page 103 (1988 Oxford University Press).
  6. John Hart Ely, "The Wages of Crying Wolf", Yale Law Journal (1973)
  7. Judith Jarvis Thomson, "A Defense of Abortion," in Philosophy and Public Affairs, vol. 1, no. 1 (1971), pp. 47-66.
  8. Interview with LA Times (June 23, 1986).
  9. Testimony by Norma McCorvey to the Senate Subcommittee on the Constitution, Federalism and Property Rights (January 21, 1998).
  10. Megan Myers, "S.D. rejects abortion ban," AngusLeader.com, published November 8 2006, accessed December 2 2006.
  11. Krystal MacIntyre, Mississippi abortion ban bill fails as legislators miss deadline for compromise (March 28 2006)
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References

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Secondary sources

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Primary sources

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External links

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