Just what did Roe v. Wade say?
With the elevation of John Roberts to chief justice of the U. S. Supreme Court and the pending confirmation hearings of Judge Samuel Alito, you cannot have escaped the shrill cacophony sounding about first Roberts and now Alito, the origin of which lies with Roe v. Wade. Most everyone knows that Roe v. Wade insured a woman’s right to an abortion, but few have actually read the decision and know precisely what it says. Accordingly, a primer.Starting with the basicsLet’s start first at the bottom and work our way uphill. Roe v. Wade, or Me v. You, or You v. Me, designates that someone is suing (or has sued) someone else. The plaintiff’s name is first; the defendant’s name is second. “v.” between the two names means versus. Accordingly, Roe v. Wade means the plaintiff, someone named Roe, “versus” a defendant named Wade. Simply, Roe is suing Wade. Similarly, on appeal, the appellant’s name (that is, the name of the person appealing a prior decision) comes first, and the appellee’s name comes second. In the U.S. Supreme Court case, Roe was the appellant and Wade the appellee. Thus, Roe was appealing a lower court decision involving someone named Wade.Simple enough, or at least so it seems. In fact, in Roe v. Wade there was no one named Roe. “Roe” was a fictitious designation (a pseudonym) meant to protect the true identity of the appellant. Sometimes in legal matters, for various reasons, one party or another may be referred to as “John Doe” or, similarly, as “Jane Roe.” Thus it was in Roe v. Wade.Further, the correct name of the case is Jane Roe, et al. v. Henry Wade. “et al.” means “and others.” The Roe, et al. v. Wade case is so designated because it was a class action suit. A class action lawsuit, at times also referred to as a “representative action,” is one where suit is brought by a group of persons having a common complaint against the same of one or several parties. Instead of proceeding with individual lawsuits, the group proceeds together in a single suit, spearheaded by the “representative” (in this case, Roe) as well as on behalf of “others similarly situated” who are not actively involved in the proceedings.The threshold requirements for all class actions are: 1) the class (or group of people with related complaints) is so large that to name them all would be impractical; 2) there are questions of fact or law common to all members of the group; 3) the claims or defenses of the named representative are typical of those of the class as a whole; and 4) the named representative will fairly and adequately represent the class. Accordingly, the suit was larger than Roe herself.Henry Wade, by the way, was the district attorney for Dallas County, Texas, the site where the action first arose in 1970. The Supreme Court decision, after the case wound its way to that court through the process of appeal, was rendered three years later, in 1973.In the Roe case, there were further procedural complications. A Texas physician, James Hubert Hallford, was originally allowed to intervene. “Intervention” is the procedure by which a third person, not originally a party to the suit, but claiming an interest in the subject matter, comes into the case to protect his or her related rights. Additionally, a Georgia case, Doe v. Bolton, was consolidated with the Roe case at the district court level (that is, the appeal level below the Supreme Court appeal). “Consolidation” occurs where two or more parties in separate cases are entitled to appeal and where their interests are so similar, they are joined into a single appeal. “Doe” was also a pseudonym, the appellants being designated John and Mary Doe. Bolton, like Wade, was the district attorney in the jurisdiction in Georgia in which the suit was originally brought.Jane Roe was an unmarried pregnant woman who wanted to terminate her pregnancy by an abortion. Because of Texas’ criminal abortion statutes, she could not obtain an abortion in Texas unless her life was endangered by the pregnancy. Hallford was a licensed physician who, owing to the same criminal laws, had been previously arrested for performing abortions.John and Mary Doe were a childless married couple. Mrs. Doe suffered from a neurological condition, because of which her doctor had advised her to avoid pregnancy. Because of the same medical condition, she was advised to discontinue taking birth-control pills. The Does alleged that should Mrs. Doe become pregnant, she would want the right to terminate the pregnancy but could not, owing to the Georgia criminal abortion statutes.Vague, unconstitutionalRoe claimed that the Texas abortion statues were unconstitutionally vague and that they violated her right to personal privacy protected by the First, Fourth, Fifth, Ninth and 14th amendments. Hallford claimed that the laws were vague and uncertain in violation of the 14th Amendment and that they violated both his and his patients’ rights to privacy in the doctor-patient relationship as well as his own right to practice medicine. He claimed his rights (and those of his patients) were similarly protected by the First, Fourth, Fifth, Ninth and 14th amendments. The District Court held that Roe and members of her class and Hallford had “standing” (or the legal right) to sue and had justiciable controversies (that is, matter ripe for judicial determination). The Does did not. That court held that the fundamental right of a single woman and married couples to choose (or choose not to) have children is protected by the Ninth Amendment through the 14th Amendment and that the Texas abortion statues were void on their face because they were unconstitutionally vague and an over-broad infringement of the plaintiffs’ Ninth Amendment rights. The court, however, dismissed Roe and Hallford’s application for injunctive relief.Up to the Supreme CourtAs the District Court held the Does lacked standing, only the Roe case (with Hallford’s intervention) proceeded to the United States Supreme Court. The specific issue presented to the court was appeal of the District Court’s judgment denying the injunctive relief sought by the appellants. “Injunctive” relief is where a party asks the court to order another party to do (or not do) something, in this case to order Henry Wade to prevent enforcement of the Texas statutes.The Supreme Court first determined that the District Court had erred in allowing Hallford to proceed and reversed the District Court’s determination. Accordingly, in the end the Supreme Court considered only Roe and the class Roe represented.The majority decision was drafted by Justice Blackmun who identified the key thrust of the appellant’s attack as asserting that the Texas statutes improperly invade the professed right of a woman to terminate a pregnancy. Essentially, Roe asserted, this right arose under a concept of “personal liberty” embodied in the 14th Amendment’s Due Process Clause, or in personal, marital, familial and sexual privacy protected by the Bill of Rights or its “penumbras.”After lengthy discussion, and a long historical and sociological review, the court determined that the Texas statute was violative of the Due Process Clause of the 14th Amendment. Further, the court held that for the stage of pregnancy prior to the end of the first trimester, the abortion decision and its effectuation should be left to the medical judgment of the pregnant woman’s attending physician. As to the period encompassed by the second trimester, the State could reasonably regulate the abortion procedure in ways related to maternal health. For the stage subsequent to what the court termed “viability,” the State could regulate – and even proscribe – abortion except where necessary, in the exercise of appropriate medical judgment, for preservation of the health or life of the mother.Dissent and expansionAssociate Justice Rehnquist (who, of course, was later elevated to chief justice and who passed away earlier this year) wrote the sole dissenting option.The Roe opinion is a long, complex one and, owing to constraints of space, only the highlights are here underscored. Also, Roe v. Wade, now 32 years old, has spawned a myriad other cases, opinions, expansions, and refinements that have created a substantial body of case law. When Roe v. Wade is invoked in politically charged atmospheres, it is often shorthand for the larger debate about the rectitude of abortion and the progeny of cases that have followed or relied on Roe, in whole or in part. Surely, the debate will continue and will likely become increasingly shrill – both pro and con – as Judge Alito nears his showdown with the Senate as it exercises is power, under Article II of the Constitution, to advise the president and to consent (or not) to the president’s nominee.Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He can be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins can be reached at 926-4461 or at firstname.lastname@example.org.