Paper submitted on June 28, 2019.
In the fall of 1967 a young woman and her boyfriend drove south through Texas to cross the border into Mexico. Her purpose was to get an illegal abortion. The Texas statute enacted in 1857 and remaining “substantially unchanged to the present time” would not allow a woman to get an abortion unless her health was in danger. Since the only thing that was potentially in danger that year was her JD degree at the University of Texas Law School in Austin, she did what she thought she had to do to protect her future career. Six years later, at the age of 26, she would find herself standing-poised, eloquent, and articulate- at the highest judicial ground of the land—the Supreme Court. This was her shining moment. Her name was Sarah Weddington, the young, female lawyer who would represent the appellant in the United States landmark case of Roe v. Wade.
Sarah Weddington was not Jane Roe. But, by all accounts, she could have been. The truth is, most don’t know the full story of Roe v. Wade. In an impromptu survey, I had asked eight people if they knew the name of a different girl, Norma McCorvey. Interestingly enough, all eight did not know who she was. They did not know that 25 year old Norma McCorvey was the nationally acclaimed Jane Roe, the young woman searching for a way out of her pregnancy in 1969. Since they did not know her name, they also did not know her story. Although the abortion case was initiated by McCorvey, by the time the Supreme Court fully tried her case, she was no longer pregnant. She had delivered her baby. Although these personal reasons could have mooted her case, the classified class-action suit continued on with the appellant counsel Sarah Weddington, perhaps the true Jane Roe of the hour, leading the way at the Supreme Court with her opening remarks on Dec. 13, 1971.
From the start, the Supreme Court took advantage of their opportunity to practice judicial activism in Roe v. Wade. Perhaps it was the opportunity to move beyond just trying a case for jurisdiction. Perhaps it was that they only had seven fully appointed judges on the bench at the time of the first argument. Or perhaps, it was that the majority of the remaining justices among them were liberal, and they were reaching for the opportunity to make a lasting social change in the nation. Whatever their true motives were, these Supreme Court justices in the years of 1971 -1973 creatively tried a case that would end up not only altering the lives of so many women, babies, and families all across our nation, but stretching how justices can interpret and create new rights not directly found in the United States Constitution. Perhaps the greatest qualm against these justices’ actions is that they conducted these trials and wrote their opinions and decisions by using that strong measure of judicial activism that left the republic without a voice in the decision. That is what the heart of this research paper is about. In the landmark abortion trial of Roe v. Wade, the seeds of judicial activism in the Supreme Court grew until it fully produced a piece of judicial legislation that would not only adversely affect mothers and babies, but the entire nation.
Judicial Activism in Roe v. Wade
Whoever thought that judicial activism only started when Supreme Court justices were currently seated on the bench did not know the domino effect that could occur as a result of one retired judge’s article. In the fall of 1969 retired Supreme Court Justice Tom Clark published a law review article advocating legalized abortion. He had been one of the judges who had helped to strike down the Connecticut contraceptive law in Griswold before he retired. Now, he had written an article that would be cited by many lawyers and lower court justices, including two Supreme Court colleagues, Justices Douglas and Brennan, who would also favorably influence a third justice with ideas of legalizing abortion. Although Clark’s final conclusion to his random article was that in the end “It is for the legislature to determine the proper balance…,” the damage of his publication had already been completed for these liberal minded justices who wanted an opportunity to try their hand at striking down abortion laws throughout the land. Manipulative seeds of arguments for abortion rights had been scattered throughout his article, influencing these key members of the judiciary with words that would eventually make their way into the Roe v. Wade decision.
There were only seven justices on the panel when Roe v. Wade first came up for judicial review in the Supreme Court in Dec. 13, 1971. The justices had decided to hear the abortion argument without the two new judges, because at the time they had a majority of four who were favorable toward abortion, and they did not want the chance of losing their liberal advantage. They were also neither too concerned, nor too prepared for the abortion argument because it was specifically determined that Roe was going to be argued as a jurisdiction case to settle procedural issues between the church and state. As a matter of fact, it had another case even attached with it, Doe v. Bolton which would be tried in the same manner. However, the four liberal justices were eager to legislate from the bench, especially Justice Brennan who submitted his opinion of Eisenstadt v. Baird on that same day of the first arguments. Quite timely, his opinion would contain the rhetoric needed to tie abortion with the right to privacy as established as precedent in that case.
To further understand the judicial activism that was happening on the bench during Roe’s trial, we need to consider key concepts covered in Ronald Fisher’s book, The Concept of Judicial Activism. In the book, Fisher asserts that both scholars and common court observers have a hard time differentiating when the Supreme Court is legislating or interpreting in their court decisions and policies in regards to judicial activism. He claims that justices are bound by the constraints of the Constitution; otherwise, their “actions” would be dismissed.” Yet, by citing Professor Mendelson, he shows how some justices seem to have a broader, more liberal view of the Constitution:
The Constitution lives on in a changing world because it grows not only by formal amendment but also by “interpretations”—a process in which the judiciary plays a large, yet by no means an exclusive role. Lawmaking, then, is an inherent and inevitable part of the judicial process. Judges must be more than mimics. Greatness on the bench—or—elsewhere—lies in creativity.
Keeping this in mind with Roe v. Wade, it is apparent then that Justice Brennan was in agreement with Mendelson’s liberal view of “creative” judicial activism and judicial lawmaking. It is also apparent that he was working within the constraints in his mind of a living Constitution when he wrote his opinion for Eisenstadt v. Baird which held the rhetoric that would later be used in Roe v. Wade.
The majority of the seven had already decided their decision to strike down the state abortion legislation when Chief Justice Burger suggested not only once, but twice that Roe v. Wade should be reargued with a full panel of nine judges who were finally appointed to the bench. The liberal core of four were very upset. Forsythe writes, “The four liberals were enraged; fearful that a 4-3 ruling might become 5-4 against abortion rights, they immediately circulated statements that they opposed reargument. Nevertheless, Chief Justice Burger prevailed in getting the case heard by the full panel of nine for a second set of arguments in October of 1972.
In this line of thought, it is interesting to briefly highlight former Justice Black’s convictions regarding judicial activism in the Supreme Court. Fisher writes that retired “Justice Black stated that he based his faith in the Supreme Court’s ability to interpret the United States Constitution as a living document on two personal convictions: (1) his enduring belief in the Bill of Rights, and (2) his belief that there existed ‘absolutes’ in the Constitution of the United States.” Although Black had retired from the Supreme Court prior to Roe, according to Forsythe, if Black had been involved with the Roe deliberations, there were strong reasons to believe he would have voted against creating a constitutional right to abortion, and he would have been for leaving the abortion issue to the democratic process in the states. Forsythe’s reasons were because Justice Black not only dissented the decision in Griswold, Roe’s precedent, but he had also rejected Justice Douglas’ idea of the “penumbrae” in the Constitution being used. As a result, although Black was no longer on the Court, the fact that Forsythe could extrapolate Black’s views into the case of Roe ironically exposes the other justices’ liberal judicial activism.
Perhaps the strongest voice that exposed the overreach of judicial activism in Roe v. Wade, however, came from Justice Rehnquist, one of the new justices in the full panel of nine who would end up voting dissent in the Roe v. Wade decision. His arguments all revealed how the role of judicial activism in the case went beyond the bounds of the Constitution. First off, he challenged the Court’s new right of “privacy.” He declared, “The Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the test is far more appropriate to a legislative judgment than to a judicial one.” It was apparent that he saw the overreach of the Supreme Court and made it clear that they were misapplying the word “privacy” as the Constitution would originally mean it. In addition, Rehnquist challenged the “compelling state interest test” by asserting that the Supreme Court judges breaking down pregnancy for the states into three distinct terms, outlining acceptable state regulations for each trimester took “more of judicial legislation than it does of a determination of the intent of the drafter of the Fourteenth Amendment.” In other words, again, it went beyond the original intent of our Founding Fathers in the Constitution. Additionally, Rehnquist wisely took some time to do careful research into the past histories on abortion legislation to back up his dissent. As a result, his words further exposed the excessive current judicial overreach in creating a new right:
The fact that a majority of the States reflecting, after all, the majority sentiment in those States have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental…Even today when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.
As a final incitement of truth and revelation, Rehnquist ended his dissent explanations by challenging the Supreme Court by ironically addressing the original Founding Father’s intent for the use of the Fourteenth Amendment in the states:
There apparently was no question concerning the validity of this provision or of any other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the states the power to legislate with respect to this matter….
There are no better words of rebuke for the Supreme Court for their judicial overreach in Roe v. Wade than these that came directly from one of their new colleagues. Rehnquist’s’ dissent and argument succinctly revealed how the Supreme Court justices had gone over the constraints of the Constitution in their final decision of Roe v. Wade.
National Effects of Judicial Activism in Roe
The adverse effects of the Supreme Court’s decision on Jan. 22, 1973 in Roe v. Wade went beyond just mothers and babies to the whole nation. When Justice Blackman wrote the final Roe decision, he removed the abortion issue out of the legislatures and placed it in the courts. With his one decision, Blackmun and the other justices denied the people of the United States the opportunity to debate the abortion issue. Those who were opposed or who were for abortion could not go through the legislative process of contacting their state representatives regarding their views about the issue. If the republic had been allowed that democratic process, new legislation could have been formed to examine all the various aspects of the abortion issue.
David Brooks of the New York Times asserts that “If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue.” As it turns out, prosecutions were pending in many states against abortionists when the decision was published, and there were already 30 states who upheld anti-abortion laws, except in the case of saving the mother’s life. Regardless of this 3/5 majority of the states affirming anti-abortion laws, with the Blackmun decision, the Supreme Court nullified the statutes of all 50 states, requiring that they, instead, implement the new created laws given by the Supreme Court of the land.
As a result of Roe, an assumption rose in the public regarding rights, linking the court to social change. Scheingold declares that “The assumption is that litigation can evoke a declaration of rights from the courts; that it can further be used to assure the realization of the rights; and, finally that realization is tantamount to meaningful change. The myth of rights is, in other words, premised on a direct linking of litigation, rights, and remedies with social change” Because they took the fight away from the states and the public, the Supreme Court opened themselves to the precedent of creating new rights, extracting them from somewhere in the penumbrae of the Constitution.
Some justices like Skelly Wright would argue that in general the role of judicial activism in shaping our country has been “necessary and proper,” especially in areas of law where the political process has been ineffective because politicians have neglected the problems. However, in Roe v. Wade, when the Supreme Court took the debate away from the politicians and democracy, they legislated to “shape a society” where abortion would be acceptable even into the 3rd trimester, unto viability (28 weeks), even though the majority of the states had a hard time even accepting any stage of abortion outside of saving a mother’s life. If they had left the debate with the legislators and voters, who could work through the issue through the democratic processes of “bargaining, education, persuasion, and voting,” it is possible that during this process statistics would have disclosed that a woman’s health is rarely the reason why women get abortions. After all, according to Bennett’s statistics, from 1972-1991 only seven percent of all abortions actually fell into the category of threatening the mother’s health, whereas nearly 200,000 second-and-third-trimester abortions were committed annually. Without knowing the statistics at the time, in the end, seven percent, clearly a minority, is what the Supreme Court based their final Roe decision on. As a result, the majority in the nation was adversely affected, as well.
According to Brooks, there were a number of other political effects that also emanated throughout the land from the Supreme Court decision in Roe. For one, the political parties polarized. In addition, both parties developed groups to destroy future judicial nominees that might oppose their side of the abortion fight. Furthermore, the Senate, once strong in deliberation to achieve consensus, began playing manipulative games to make sure that appointed Supreme Court nominees would reflect their legislative partisan view. As a result, electing judges was no longer about the judicial wrong and right, but about the judicial left and right. Democrats began using the method of filibustering again and again, while the Republicans began threatening to change the Senate rules. According to Brooks, present-day America still needs to have this democratic abortion debate because he asserts that it is in eventually overturning Roe v. Wade, that the cycle of political viciousness and counter-viciousness will be destroyed at the root.
According to Judith Blake, a number of abortion-related bills increased significantly to oppose the Roe v. Wade decision that was released in January of 1973. Right after the Supreme Court decision, 260 bills were introduced and 39 enacted. In addition, several states enacted statutes to either deny or restrict Medicaid reimbursement for women who had abortions and expected tax dollars to cover the expense of their decision.
Blake also shared data from national surveys conducted by Gallup and NORC to reveal attitudes of those surveyed in the public prior, during, and after the abortion legislation passed. In terms of men and women’s attitude toward elective abortions, it was interesting to note the disapproval rating for abortion declined from 85 percent in 1968 to 63 percent in 1974 and 1977. Nevertheless, Blake indicated that none of the results showed more than 50 percent approving or less than 50 percent disapproving elective abortions.
In regards to questions about the timing of abortion procedures, results from Blake’s survey clearly showed that the country was in opposition with the Supreme Court here, as well. Although the Court didn’t feel it necessary at the time to solve the issue of when life began, and eventually, they extended the right to abortion up to 28 weeks, in 1975, 58 percent of the women said life began at conception. Only 11 percent agreed with the Supreme Court that it would be at viability.
Also, according to Forsythe, the abortion decision affected the other branches of government, as well. The Supreme Court’s decision in Roe v. Wade bound Congress, the President, and all state and local governments across all 50 states through the Supremacy Clause in Article VI because the supreme law superseded all the state laws of the land. With the passing of the Supreme Court legislation, abortions increased throughout the whole nation, reaching an annual high of 1.6 million in 1992, before declining to 1.2 million in 2006. According to the Guttmacher Institute, the consequence of Roe v. Wade is that from 1973-2014, the women in America have had 59, 115, 995 abortions.
More specifically, according to the Index of Leading Cultural Indicators, from the years of 1972 to 1991, there are some other startling facts that resulted from Roe v. Wade. (Because it was difficult to disaggregate the data for just the years starting from 1973, these statistics will include the initial year prior to Roe, as well). From the statistics, Bennett disclosed that 59% of abortions were committed by women under the age of 24. Also, about 40 percent of teenage pregnancies (about 400,000 a year) ended in abortion, and the teen number of abortions was one-fourth the total number of abortions that were committed yearly in the United States. Also, he reported that girls who were younger than the age of 15 had an inflating abortion rate by 18 percent between 1980 and 1987.
In lieu of these results, perhaps having more than seven justices on the panel of the first argument may have helped them consider other possible questions to address in regards to the abortion decision that would affect the whole nation. The closest they came to considering other perspectives than just the woman’s health was in the first oral arguments when Jay Floyd submitted in his conclusion that in some instances the consideration should be given to the father of the baby, if he would object abortion. Because of the connection to Doe v. Bolton, it seems likely that the main perspective and age range the justices were considering in regards to abortion legislation at that time were that of adult women, either married or single. If the thought of teenage abortions would have crossed the justices’ minds, then perhaps their conferences and drafts of opinions may have included some thought regarding parental consent for minors and whether that would even be Constitutional. However, because the seven justices on the panel denied Texas’ motion to postpone the first argument until Powell and Rehnquist had been sworn in, they were left to hear the first arguments without them on Dec. 13, 1971, and just three days later, a bloc of justices were ready to vote for abortion rights. As a result not much deliberation took place over an issue that would impact the nation for the next 43 years.
Perhaps in their scheming to leave out the other two justices and in moving too quickly through the case, the Supreme Court justices were negligent in doing their research and homework to get all the facts needed to make the most judicious decision. As Forsythe writes, “Roe and Doe began, in the Supreme Court as a serious procedural mistake that left the justices without any factual record to consider the complex historical, legal, medical, and constitutional issues surrounding abortion.” In a landmark class-action suit that would affect the whole nation, it would have been wise to do some research before applying judicial activism from the bench. After all, according to Bennett’s report, 63 percent of total abortions were committed by women who had never been married, and one of their main supports for the abortion argument was taken from Griswold v. Connecticut, which was about stablishing the Constitutional right of privacy specifically for married couples. Perhaps with some judicial restraint and taking some extra time, the Supreme Court justices may have reconsidered their decision. After all, one of the two who dissented, Justice Rehnquist, did so because he took the time to conduct some research into the opinions that were submitted by the justices to see if the judicial activism happening in the bench stayed within the constraints of the Constitution. Perhaps if more of the Supreme Court justices had chosen to just interpret the law according to the Constitution, rather than judicially legislate, these adverse effects in our nation could have been constrained.
In conclusion, Alexander Hamilton in the 78th Federal paper described judges as the guardians of the Constitution. He wrote that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” It is evident that he never expected to see the day that judges would legislate from the bench to add rights to the Constitution and change the culture of a nation. That is exactly what the Supreme Court did in Roe v. Wade.
The Supreme Court justices who used the Roe v. Wade decision to practice judicial activism went beyond the constraints of the United States Constitution to create new rights and laws that in the end have adversely affected the whole country. By establishing prior precedents in cases like Griswold v Connecticut and Eisenstadt v. Baird, the Supreme Court created new rights of privacy and abortion that are not found anywhere in the text of the Constitution. The results of this encroachment on state legislative responsibilities and the rights of the people left the country needing to fully debate the abortion issue. There was so much to consider.
The basic qualm against the Supreme Court and their decision is that they usurped the power of deliberation and representation from the democracy by judicially legislating from the bench. In hindsight, their decision was calculated, because there was a majority on the bench that wanted to strike down the abortion laws. They based so much of their opinions and decisions on penumbrae and precedents from other cases. Instead, like Justice Rehnquist, they could have considered the context of the Constitution as the Founding Fathers meant it, and they could have researched some factual evidence.
Although the fact that Norma McCorvey never had an abortion did not matter to the Supreme Court, perhaps, if they knew at the time that Sarah Weddington did have an abortion, it may have mattered. It may have made them pause, to think. Why would this woman want so badly to fight for this case? There may have been a conflict of interest with her presenting the case. In the end, Sarah Weddington may have seemed “successful” in achieving so many of her goals. After all, she graduated from law school, and she “won” the national landmark Supreme Court case of Roe v. Wade. However, I can’t imagine what the cost has been to her life. The cost of her “success” to America has been very excessive, indeed.
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