Hard News

Roe v. Wade: a deep dive

Kiley Clarquist, Writer | 6/2/2022

If you opened any major news site- the New York Times, NPR, The Guardian, NBC- you would see one common headline, entitled “Roe v. Wade”. However, many Americans are unaware as to the recent controversies surrounding it, as well as the stipulations of the actual court case.

Recounted by Oyez, a law project contributed to by students of Cornell, Justia and Chicago-Kent College of Law, Roe v. Wade is a 1973 supreme court case in which Jane Roe (a fictional name used to protect her identity) filed a lawsuit against Henry Wades, who was the district attorney of Dallas County in Texas.

Roe challenged the law that made abortion illegal except by a doctor’s orders to save a woman’s life. In her lawsuit, she alleged that the state laws were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

In a 7-2 decision in her favor, it was decided that a women had the right to terminate her pregancy through abortion. Roe v. Wade then fell under the Due Process Clause of the Fourteenth Amendment, which protects a person's right to privacy.

According to the National Constitution Center, the Due Process Clause of the Fourteenth Amendment is to protect a person’s right to “life, liberty, and property” from the government. Underneath this, the clause also protects procedural protections, such as notice and a hearing before termination of entitlements such as publicly funded medical insurance. Individual rights listed in the Bill of Rights, including freedom of speech, free exercise of religion, the right to bear arms, and a variety of criminal procedure protections.

Fundamental rights that are not specifically enumerated elsewhere in the Constitution, include the right to marry, the right to use contraception, and the right to abortion. This clause is also often referred to as a person’s “right to privacy”, as although a person does not explicitly have this right as outlined in the constitution, it is seen within the “shadowed edges'' of different statements in the US constitution.

The recent controversies surrounding Roe v. Wade occurred in early May, when an initial draft majority opinion written by Justice Samuel Alito circulated inside the court, and was eventually leaked.

In a summary by News for Jax of the 98 page draft, Alito writes, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.”

That clause says no person shall be deprived of life, liberty or property without due process of law. Alito suggests the right to abortion doesn’t apply because it’s not deeply rooted in American history or tradition. He says the right to abortion was unknown in American law until the latter part of the 20th century, noting that abortion was illegal in three-quarters of the states when the 14th Amendment was adopted in 1868.

He goes on to say that Roe is different than rights granted in other court decisions involving things including contraception and marriage because it destroys what Roe and Casey called “fetal rights” and what the Mississippi law at issue describes as an “unborn human being”.

While the draft has not yet been voted upon by the supreme court, it is up for discussion and may come up in the court in June.