This introduction to law, legal institutions and the legal environment will focus on the landmark 1973 U.S. Supreme Court case of Roe versus Wade. After describing the case, the effect of the case on religions in the United States will be discussed. This will be followed by discussion of the effects of this case on the freedoms enjoyed by Americans, particularly the rights of privacy and freedom of choice for the individual.
Roe versus Wade was the outgrowth of an unmarried pregnant woman filing a class action suit in the Dallas, Texas, federal district court. Wade is the name of the District Attorney involved in the suit, while Roe is a pseudonym used by the plaintiff in filing suit. The suit sought a declaratory judgment that the Texas criminal abortion laws were unconstitutional. Texas enacted its law in 1854, and the laws stood unchanged since 1856. Texas law prohibited abortion, with the exception of attempts to save the life of the mother (Wardle, 1985).
The three-judge district court found Texas abortion law to be unconstitutionally vague, as well as overly broad to the point of infringing on the fundamental right of women (both single and married) to make the choice of whether to have children. Both defendant and plaintiff appealed the ruling to the Supreme Court. The case was first argued before the Supreme Court during the 1971 term, and then argued again with extensive briefing during the next term. The Supreme Court announced its verdict on January 22, 1973. The Supreme Court verdict affirmed the judgment of the federal district court on the merits and introduced abortion privacy as a broad doctrine of constitutional law (Wardle, 1985).
Justice Blackmun wrote the Roe v. Wade opinion. The opinion started with the observation that most criminal abortion laws are relatively recent in origin. The opinion went on to note that previous judicial decisions had given constitutional protection to family and individual privacy interests. The right of privacy was construed as being broad enough to include a woman’s decision on whether or not to terminate her pregnancy. Thus, states had to have a compelling interest if abortion were to be restricted. While protecting lives is considered a compelling interest, the Court held that fetuses were not persons under the fourteenth amendment, as the term person in the constitution refers to postnatal individuals. Concern with maternal health could be expressed by the states regulating sanitary aspects of abortions after the critical first trimester (Wardle, 1985).
Roe versus Wade has had dramatic social effects. More than 12.5 million abortions were performed in the decade after the Roe versus Wade decision. Abortions were the most frequently performed operations in the United States in 1978, with 1.5 million abortions being performed each year. One-third of all abortions were performed on teenagers, and one-third of abortions were performed on women who had previously had abortions. Three hundred out of every one thousand U.S. pregnancies were terminated by abortion in 1980, with the number of abortions exceeding the number of births in eighteen metropolitan areas (Wardle, 1985).
The major religions have not been oblivious to these facts. Besides the well-known opposition of the Catholic church to abortions, the Moral Majority has made a major national issue of the pro-life anti-abortion stance. A once obscure Baptist pastor from Lynchburg, Virginia, Jerry Falwell has risen to the status of national celebrity with the Moral Majority (Ray, 1985).
Roe versus Wade had a profound impact on Jerry Falwell. Prior to Roe versus Wade, Falwell had spent thirty-five years as a separatist, believing that social and political movements were an improper distraction for a man of God. With legalized abortion guaranteed after the landmark Roe versus Wade decision, Falwell abandoned spiritual separatism and entered the political arena through “The Old-Time Gospel Hour,” a nationally syndicated television show (Ray, 1985).
Those most receptive to Falwell’s anti-abortion, pro-life message were politically and religiously conservative members of the middle class, lower middle class and blue collar. Falwell’s religious appeal is more emotional than intellectual, with the Bible being cited as the absolute authority. The abortion issue tied into the larger theme of America being on a downhill trend caused by the evils of secular humanism. Religion in the guise of the new faith of the Moral Majority, Inc., led by Falwell, was touted as the answer to America’s ills, including the abortion controversy (Ray, 1985).
The pro-life viewpoint is challenged by nonreligious pro-choice movement. Pro-choice people support the Supreme Court decision in Roe versus Wade. Much of the argument hinges on when life is deemed to have begun. Pro-lifers argue that the fetus is a human being, while pro-choice advocates make the bodily integrity of the woman the key issue. Religion is the internal motivator of the pro-life movement, which compares itself to the abolitionists (with fetuses the equivalent of black slaves). Abortion is also related to the Haiz Holocaust and the acceptance of euthanasia and infanticide (Thompson, 1985).
Catholic Church public policy of the fetus as a living being is symbolized by the Declaration on Religious Freedom of the Second Vatican Council (Smith, 1981). Pope John Paul is having considerable influence, though there is division among Catholics on the abortion issue, with the Church opposition to abortion resting on the Pope’s contention that the basic truths of the Catholic faith are not subject to disagreement or agreement (Carey, 1987). Not all bishops in the U.S. are following the Pope’s advice to show no tolerance to those dissenting from the basic truths of the Catholic faith (Shapiro & Carey, 1987). Whether or not the divisions in the Church are a healthy positive or a negative development, depend upon which side of the issue is adopted.
Religion divides itself among those favoring abortion and those opposed to abortion. Religious attitudes influence Congressional voting on whether federal funds can fund abortions, but liberal conservative designation is paramount (Fimian, 1987).
The right to privacy inherent in Roe versus Wade was upheld when the Supreme Court upheld the right to abortion in Thornburgh v. American College of Obstetricians and Gynecologists. However, the margin was a narrow 5-4. Thus, there is a narrowing of opinion. Nonetheless, Doe v. Bolton struck down prohibitions on abortion as infringing on a woman’s right to privacy. The concept of privacy is located within the personal liberty protections of due process in the fourteenth amendment (Snedaker, 1987).
The Supreme Court maintains that Fourteenth Amendment guarantees of liberty include the right to marry, establish a home and bring up children, which are part of the common law tradition of pursuit of happiness that is enjoyed by free men. Procreation was declared a fundamental right in Skinner v. Oklahoma (1942), which struck down court-ordered sterilization of a convicted felon on grounds of violation of the equal protection clause. In Griswold v. Connecticut (1969), the Supreme Court overturned a state law prohibiting married couples from information about using contraceptives. Use of contraceptives and the marriage relationship was said by the court to be protected by the zone of privacy. Securing the right to prevent childbirth before conception may lead to the right to prevent childbirth after contraception (Snedaker, 1987).
Eisenstadt v. Baird (1972) extended to single individuals the right to privacy in procreation by nullifying a Massachusetts law that allowed distribution to married couples but not to single people. This extended pro-choice freedoms and reduced unwarranted government intrusion into private lives on the fundamental matter of having children. The freedoms with regard to child bearing now extend to marriage, child rearing, procreation, education and contraception. Freedom to control decisions integral to a person’s life are being affirmed as belonging to the involved individual, not to the government (Snedaker, 1987).
Giving women reproductive autonomy has helped women in their struggle to be gender-equal to men in all phases of life, from the political and social to economic spheres. Personal autonomy was affirmed as a fundamental right of women in Roe v. Wade. Legislative response has been to deny poor women government funding for abortion – which means more options for the middle class than for the poor. Abortion gives women the option of not having to bear the social and financial responsibility for children, which society expects even when the father skips out. Thus, Roe v. Wade gives the woman more control over her life, minimizing gender discrimination (Ginsburg, 1985).