We all know that Roe v. Wade made abortion legal across the United States, but the this shit is WAY more nuanced and complicated than most know. So let’s really dig into this bitch, because it’s interesting AF.
First, Jane Roe was a fictional name used to represent an anonymous woman. She chose to remain anonymous at the time, but was later identified as Norma McCorvey. She had gotten pregnant with her third child, and wanted an abortion. The first two she had given up for adoption, but this time, she didn’t want to go through all difficult shit associated with bringing a child to term, then putting it up for adoption.
But there was a Texas law that said outside of rape and incest, unless your doctor orders an abortion to save your life, your doctor can’t perform a fucking abortion on you.
As a result, “Jane” lied and said she had been raped. But when there was no police report to corroborate the rape, they suspected she was full of shit, and denied her an abortion, leaving her with no way in Texas to get a legal abortion.
Jane Roe wasn’t the only petitioner in the case, though. There was also an anonymous couple that had gotten pregnant, and a doctor Hallford who was under indictment for performing an abortion (Presumably not the lead singer for Judas Priest, Rob Halford, although that’d be pretty fucking awesome).
They sought justice in a Texas district court citing first amendment violations (presumably arguing it was a law based on religion). But she also argued Fourth, Fifth, Ninth, and Fourteenth Amendments violations.
The Texas district court gave her a victory on 9th amendment grounds, that just because the right to an abortion isn’t enumerated in the Constitution, doesn’t mean she doesn’t have a right to do it. But also, it effectively argues a person has a right to privacy. They cited the 14th amendment as well, which guarantees rights to “all citizens born.” So if you aren’t born yet, you’ve got no rights, little fella.
But Texas only gave a declaratory relief (they clarified the law), not injunctive relief, which would have effectively intervened on Roe’s behalf so she could get her abortion.
Texas decided that despite this decision, it was going to continue prosecuting doctors for performing illegal abortions.
By the time it made it to SCOTUS, the petitioner focused on the 9th amendment and 14th amendment arguments, since that’s how they won in Texas, when pleading their case to SCOTUS.
Also, the petitioners argued that based on some of the situations that were unique to that time, the law made Roe a victim. She noted that when a woman got pregnant, some jobs forced the woman to quit, some schools compel the woman drop out, and the woman can’t get unemployment or welfare benefits if she’s pregnant.
Counsel for Roe stated,
It disrupts her body. It disrupts her education. It disrupts her employment. And it often disrupts her entire family life.
And we feel that, because of the impact on the woman, this certainly, and as far as there are any rights which are fundamental is a matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or to terminate her pregnancy.
Here’s where this shit starts to get interesting. The Texas law only forbade a doctor from doing the abortion. And it held a significantly lower penalty than murder. Petitioners fairly argued that this showed they weren’t considering it murder. A woman could perform her own abortion, which is dangerous as hell to her (not just the fetus), and there was no law against that shit at all. As a matter of fact, in the law, the pregnant female was considered the victim, and the doctor was the criminal.
Part of the blow dealt to Texas was that from the doctor’s perspective, the law was too vague or subjective, a term under the law referred to as “Constitutionally vague.” Meaning that a doctor could run afoul of the law, and not even know. Laws must clearly define when you are crossing the line into illegality, otherwise you have no way to know how to avoid doing so.
Imagine if the doctor performed the abortion because they said the mother’s life was in danger. But then another doctor comes in after the fact and argues that the mother wasn’t in danger, the doctor performing the abortion was a shit doctor, and thus it’s an illegal abortion. Who the hell wants to sort that shit out? And what doctor will ever perform an abortion, when they know they could be thrown in jail for it later, even if they did so in good faith?
So this shady motherfucker on the side of Wade, tried to argue the case moot, because it had been 21 months, and Roe had long since given birth, then put the baby up for adoption. Basically, this dipshit was establishing a system where a woman could never get injunctive relief, because it would take too long to get it, and actually be able to perform the abortion. This case took 21 months, but obviously, the abortion needs to happen within a few months. So the court called him out on this nonsense, and the exchange was awkward at best:
Justice Byron R. White
How do you suggest, if you’re right, what procedure would you suggest for any pregnant female in the State of Texas ever to get any judicial consideration of this constitutional claim?
Jay Floyd – Wade advocate
Your Honor, let me answer your question with a statement, if I may. I do not believe it can be done. There are situations in which, of course as the Court knows, no remedy is provided.
Now I think she makes her choice prior to the time she becomes pregnant. That is the time of the choice. It’s like, more or less, the first three or four years of our life we don’t remember anything.
But, once a child is born, a woman no longer has a choice, and I think pregnancy may terminate that choice. That’s when
Justice Byron R. White
Maybe she makes her choice when she decides to live in Texas.
As arguments proceeded, the question was asked of the state by SCOTUS, what’s your interest here? To preserve the life of the fetus? So Wade’s attorney was all like, I don’t fucking know, sounds about right.
You’ll think I’m joking there, but he genuinely fucking said when asked what the state’s interest was,
“They recognized the humanness of the embryo, or the fetus, and they said, we have an interest in protecting fetal life.
Whether or not that was the original intent of the statute, I have no idea.”
Clearly, this motherfucker was prepared.
So then the justice was like, well then how the fuck is the woman the victim? Shouldn’t the woman and the doctor be the criminals, and the fetus be the victim?
It became clear that no compelling argument had been made, nor precedent set, to constitute a fetus being a life with equal protection under the law. As a matter of fact, this motherfucker when asked about not making the fetus the victim said,
That is correct, Your Honor. And the matter has been brought to my attention. Why not punish for murder, since you are destroying what you – or what has been said to be a human being?
I do not know, except that I will say this. As medical science progresses, maybe the law will progress along with it. Maybe at one time it could be possible, I suppose, statutes could be passed. Whether or not that would be constitutional or not, I don’t know.
I’ve eaten a bowl of alphabet soup and shit better arguments than that. No wonder that mother fucker lost. Seriously!
He was so bad, that when the case was re-argued at the suggestion of justice Harry Blackmun nearly a year later (due to the fact the court was two justices short from retirements prior to the case, and those seats having not yet been filled), Texas replaced his dumb ass as their advocate.
Anyway, back to Captain Anonymous, Jane Roe. Effectively, if the court accepted that the state’s interest was protecting a life other than the mother’s life, then the court was put into a quagmire, where they’re forced to choose between competing rights for the mother and the fetus.
Eventually SCOTUS decided 7-2 in favor of Roe. Based on the idea that they’re choosing one life over the other, they divide the pregnancy up into three trimesters, which is where the whole “trimester” term came to be.
They gave the mother sole discretion, with her doctor, to terminate in the first trimester, putting the mother’s rights to life and bodily autonomy first.
They gave deference to the mother in the second trimester to terminate if her life was at risk, removing the bodily autonomy right, allowing the state could regulate outside of that parameter. Then they gave deference to the state’s ability to protect the fetus in the third trimester. Basically they argued, the state could legislate it to say, “you’ve come this fucking far, just have the baby and put it up for adoption if you don’t want it.” But if the state didn’t pass such a law, go ahead and have the abortion.
No doubt a complicated case, as it’s not often two humans with rights, find themselves in a scenario where one’s rights interfere with another. As such, the trimester decision was pretty fucking fair, in my estimation.
Justices Rehnquist and White were the two who dissented.
Read about the case, and hear both oral arguments here