What if the Supreme Court used NowComment? (Roe v. Wade)

[Roe v. Wade brought the issue of abortion to the Supreme Court. On October 11, 1972 Ms. Sarah Weddington represented Jane Roe before the Supreme Court in a historic oral argument that led to legalized abortion in the United States. This document is a "virtual reenactment" of the court transcript (courtesy of The Oyez Project) to demonstrate how NowComment® can organize and facilitate debate and the exchange of ideas. No transcript text was deleted; any text used in comment summary lines that is not found in the transcript will be in [brackets]. I turned the transcript into exposition by Ms. Weddington and questions by the Justices and her responses to them into comments. To see the Justice's questions in chronological rather than topical order use our "sort Comments by date" feature. — Elaine Hanes, NowComment intern]

Ms Sarah Weddington: Mr. Chief Justice and may it please the Court.

We are once again before this Court to ask relief against the continued enforcement of the Texas abortion statute and ask that you affirm the ruling of the three-judge Court below which held our statute unconstitutional for two reasons, the first, that it was vague and, the second, that it interfered with the Ninth Amendment right for a woman to determine whether or not she would continue or terminate her pregnancy.

As you will recall, there are three-- four-- three plaintiffs and one intervener involved here.

The first plaintiff was Jane Roe, an unmarried pregnant girl who had sought an abortion in the State of Texas and was denied it because of the Texas abortion statute which provides an abortion is lawful only for the purpose of saving the life of the woman.

In the original action, she was joined by a married couple, John and Mary Doe.

Mrs. Doe had a medical condition.

Her doctor had recommended first that she not get pregnant and, second, that she not take the pill.

After this cause was instituted and after, in fact, the three-judge Court had been granted, those three plaintiffs were joined by an intervener, Doctor Hallford, who was, at the time he intervened, under a pending state criminal prosecution under the statute.

He did not ask that his prosecution be joined-- be stopped by the Court but, rather, joined in the original request for a declaratory judgment and injunctive relief against future prosecutions.

As a matter of fact, he has not-- his prosecution has not been continued, but the District Attorney, against whom we filed a suit, has taken a position that because there was no injunction he is still free to institute prosecutions.

There is a letter from his office in the appendix stating that he will continue prosecutions and, in fact, there had been a very limited number of prosecutions instituted in the State of Texas since the three-judge Court entered its declaratory judgment.

The problem that we face in Texas is that even though we were granted a declaratory judgment ruling the law unconstitutional and even though we’ve been before this Court once in the past, in Texas, women still are not able to receive abortions from licensed doctors because doctors still fear that they will be prosecuted under the statute.

So, if the declaratory judgment was any relief at all, it was an almost meaningful relief because the women of Texas still must either travel to other states, if they are that sophisticated and can afford it, or they must resort to some other less-- some other very undesirable alternatives and—

In fact, we’ve pointed out in our supplemental brief filed here that there had been something like 1,600 Texas women who have gone to New York City alone for abortions in the first nine months of 1971.

In addition, I think the Court would recognize there are many women going to other parts of the country.

One of the objections that our opponents have raised is saying that this Court is moot because, of course, the woman is no longer pregnant.

It’s been almost three years since we instituted the original action and, yet, we can certainly show that it is a continuing problem to Texas women.

There still are unwanted pregnancies. There are still women who, for various reasons, do not wish to continue the pregnancy whether because of personal health considerations, whether because of their family situation, whether because of financial situations, education, working situations, some of the many things we discussed in the last hearing.

Since the last hearing before this Court, there have been a few cases decided that we wanted to draw the Court’s attention to and are covered in our supplemental brief.

In addition, there is a supplemental brief filed by an amicus party, Harriet Pilpel on behalf of Planned Parenthood of New York, that seeks to point out to the Court at pages 6 and 7, subsequent pages, some of the changing medical statistics available regarding the procedure of abortion.

For example, that brief points out that the overall maternal death rate from legal abortion in New York dropped to 3.7 per 100,000 abortions in the last half of 1971 and that, in fact, is less than half of the death rate associated with live delivery for women.

That, in fact, the maternal morbidity-- mortality rate has decreased by about two-thirds to a record low in New York in 1971.

That-- now, in 1971, New York recorded the lowest infant mortality rate ever in that state.

That during the first 18 months of 19-- well, from July 1, 1970 to December 31, 1971, out of wedlock pregnancies have dropped about 14%.

We now have other statistics coming from California and other states that show that not only has the overall birthrate declined, but the welfare birthrate has also declined accordingly.

As to the women, this is their only forum.

They are in a very unique situation for several reasons.

First, because of the very nature of the interest involved, their primary interest being the interest associated with the question of whether or not they will be forced by the state to continue an unwanted pregnancy.

In our original brief, we alleged a number of constitutional grounds.

The main one that we are relying on before this Court are the Fifth, Ninth, and the Fourteenth Amendments.

There’s a great body of precedent.

Certainly, we cannot say that there isn’t a constitution so stated the right to abortion but, neither is there stated the right to travel or some of the other basic rights that this Court have held are under the United States Constitution.

The Court has in the past, for example, held that it is the right of the parents and not of the individual to determine whether or not they will send their child to private school, whether or not their children will be taught foreign languages, whether or not they will have offspring in the Skinner case, whether the right to determine for themselves whom they will marry in the Loving case, and even in Body versus Connecticut the choice saying that marriage itself is so important that the state cannot interfere with termination of a marriage just because the woman is unable to pay the cost.

Griswold, of course, is the primary case holding that the state could not interfere in the question of whether or not a married couple would use birth control and, since then, the Courts have-- this Court, of course, has held that the individual has the right to determine whether they are married or single, whether they would use birth control.

So, there is a great body of cases decided in the past by this Court in the areas of marriage, sex, contraception, procreation, childbearing, and education of children which says that there are certain things that are so much part of the individual concern that they should be left to the determination of the individual.

One of the cases decided since our last argument, December 13, was the second Connecticut case, Abele versus Markle, which Judge-- excuse me?

And, Judge Lambert concurred.

Part of the lang-- in that case, that three-judge Court held the Connecticut statute, a slightly revised statute for the second time, to be unconstitutional, and part of the language of that case pointed out that “no decision of the Supreme Court has ever permitted anyone’s constitutional right to be directly abridged to protect a state interest which is subject to such a variety of personal judgments” and, certainly, the amicus brief stag before the Court showed a variety of personal judgments that come to bear on this particular situation.

To oppose such a statute, the Court said, would be to permit the state to impose its view of the nature of a fetus upon those who have the constitutional right to base an important decision in their personal lives upon a different view.

Again, this is a very special type case for the women because of the very nature of the injury involved.

It is an irreparable injury.

Once pregnancy has started, certainly this is not the kind of injury that can be later adjudicated.

It is not the kind of injury that can later be compensated by some sort of monetary reward.

These women who have now gone through pregnancy and the women who continue to be forced to go through pregnancy have certainly gone through something that is irreparable, that can never be changed for them.

It is certainly great and it is certainly immediate.

There is no other forum available to them.

As we talked last time, they are not subject in Texas to any kind of criminal prosecution whether the woman performs self-abortion, whether she goes to a doctor, finds someone who will perform it on her.

She is guilty of no crime whatsoever and, yet, the state tries to allege that its purpose in the statute was to protect the fetus.

If that’s true, the fact the woman is guilty of no crime is not a reasonable kind of-- it does not reasonably follow.

These-- the women are not able to have any kind of declaratory judgment in Texas because of our special declaratory judgment statutes and our concurring Criminal and Civil Courts, the two different kinds of cases that we have.

So, the Federal Court was the only Court to which the women had any kind of access, and it was to the Federal Courts they came, and it’s the Federal Court, in my judgment, that should determine this case.

It’s a very unique kind of harm, certainly, that was done to them.

Even though there are many cases, some very recent from this Court, talking about the problem of when a state may interfere when they’re-- or the federal judiciary may interfere when there is a pending state criminal prosecution.

This case does come under the exceptions in that there is great, immediate, irreparable injury where there is no other forum.

It is something that, as far as these women are concerned, can never be adjudicated in a criminal prosecution, much less in a single criminal prosecution.

It certainly is an instance of a situation that is capable of repetition, yet, evading review.

The judiciary simply does not move fast enough for the case to be decided within the period of gestation, much less within the period within which an abortion would be medically safe for these women.

The state has alleged and it’s only alleged interest in the statute is the interest in protecting the life of the unborn.

However, the state has not been able to point to any authority of any nature whatsoever that would demonstrate that this statute was, in fact, adopted for that purpose.

We have some indication that other state statutes were adopted for the purpose of protecting the health of the woman.

We have an 1880 case in Texas, shortly after the 1854 statute was adopted, that states that a woman is the victim of the crime and is the only victim the Court talks about.

We have all the contradictions in the statute in the way-- so many things that just don’t make sense.

If the statute was adopted for that purpose, for example, why is the woman guilty of no crime?

If the statute was adopted for that purpose, why is it that the penalty for abortion is determined by whether or not you have the woman’s consent?

There had been two cases decided since the December 13 argument that expressly hold that a fetus has no constitutional rights, one being Byrn versus New York, and the other being the Magee-Womens Hospital cases.

In both situations, a person sought to bring that very question to the Court does in the one instance, Byrn, was a challenge to the New York revised statute, the other was a situation where a person sought to prevent Magee-Womens Hospital from allowing further abortions to be done in that hospital.

And, in both cases, it was held that the fetus had no constitutional rights.

Several of the briefs before this Court would also argue that this Court in deciding the Vuitch case which has allowed abortions to continue in the District of Columbia, certainly the Court would not have made that kind of decision if it felt there were any ingrained rights of the fetus within the constitution.

There had also-- there is also, of course--

Okay and, second, that the state has no compelling state interest.

DMU Timestamp: November 11, 2010 18:20

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