Roe v. Wade

AuthorJeffrey Lehman, Shirelle Phelps

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This section allows readers to investigate the facts, the arguments, and the legal reasoning that produced the Roe v. Wade decision. It also sheds light on the roles and required skills of attorneys and judges in resolving disputes.

As you read this section, you may wish to consider the following issues:

How did the appellant's description of the issues before the Court, or questions presented, differ from the appellee's descriptions?

How did the courts and the two parties differ in describing the meaning of particular prior cases to the present case?

How did the holdings (conclusions of law) of the district court differ from those of the Supreme Court?

On what points in the Supreme Court's majority opinion do the concurring and dissenting justices agree and disagree?

How would you decide this case?


Roe versus Wade may be the most well known and the most controversial decision of the modern Supreme Court. With this decision, the Court recognized a woman's right to obtain an abortion under certain circumstances. Virtually from the moment it was handed down, Roe v. Wade has divided lawyers, politicians, and the public into those who support the decision and those who would like it overturned, either by the Supreme Court itself or by act of the legislature. A judge's or politician's position on the subject of abortion has played a major role in countless appointments and elections. After the decision and for the rest of his life, the opinion brought its author, Justice Harry Blackmun, an unending stream of mail both praising and vilifying him for the decision.

Opinion of U S. District Court, N.D. Texas, June 17, 1970

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Roe v Wade









CIV. A. NOS. 3–3690–B, 3–3691–C.




JUNE 17, 1970.

Action for judgment declaring Texas abortion laws unconstitutional and to enjoin their enforcement. The three-judge District Court held that laws prohibiting abortions except for purpose of saving life of a mother violated right secured by the Ninth Amendment to choose whether to have children and were unconstitutionally overwhelmed and vague, but Court would abstain from issuing injunction against enforcement of the laws.

Order accordingly.

Linda N. Coffee, Dallas, Tex., Sarah Weddington, Austin, Tex., for plaintiffs.

Fred Bruner, Daugherty, Bruner, Lastelick & Anderson, Ray L. Merrill, Jr., Dallas, Tex., for intervenor.

John B. Tolle, Asst. Dist. Atty., Dallas, Tex., Jay Floyd, Asst. Atty. Gen., Austin, Tex., for defendant.

Before Goldberg, Circuit Judge, and Hughes and Taylor, District Judges.


Two similar cases are presently before the Court on motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The defendant in both cases is Henry Wade, District Attorney of Dallas County, Texas. In once action plaintiffs are John and Mary Doe, and in the other Jane Roe and James Hubert Hallford, M.D., intervenor.1

[1] From their respective positions of married couple, single woman, and practicing physician, plaintiffs attack Articles 1191, 1192, 1193, 1194, and 1196 of the Texas Penal Code,2 hereinafter referred to as the Texas Abortion Laws. Plaintiffs allege that the Texas Abortion Laws deprive married couples and single women of the right to choose whether to have children, a right secured by the Ninth Amendment.

Defendant challenges the standing of each of the plaintiffs to bring this action. However, it appears to the Court that Plaintiff Roe and plaintiff-intervenor Hallford occupy positions vis-avis the Texas Abortion Laws sufficient to differentiate them from the general public. Compare Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 1678, 14 L. Ed. 2d 510 (1965),3 with Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L. Ed. 1078 (1923). Plaintiff Roe filed her portion of the suit as a pregnant woman wishing

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to exercise the asserted constitutional right to choose whether to bear the child she was carrying. Intervenor Hallford alleged in his portion of the suit that, in the course of daily exercise of his duty as a physician and in order to give his patients access to what he asserts to be their constitutional right to choose whether to have children, he must act so as to render criminal liability for himself under the Texas Abortion Laws a likelihood. Dr. Hallford further alleges that Article 1196 of the Texas Abortion Laws is so vague as to deprive him of warning of what produces criminal liability in that portion of his medical practice and consultations involving abortions.

[2] On the basis of plaintiffs' substantive contentions,4 it appears that there then exists a "nexus between the status asserted by the litigant[s] and the claim[s] [they present]." Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L. Ed. 2d 947 (1968).

[3] Further, we are satisfied that there presently exists a degree of contentiousness between Roe and Hallford and the defendant to establish a "case of actual controversy" as required by Title 28, United States Code, Section 2201. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L. Ed. 2d 113 (1969).

Each plaintiff seeks a relief, first, a judgment declaring Texas Abortion Laws unconstitutional on their face and second, an injunction against their enforcement. The nature of the relief requested suggests the order in which the issues presented should be passed upon5. Accordingly, we see the issues presented as follows:

I. Are plaintiffs entitled to a declaratory judgment that the Texas Abortion Laws are unconstitutional on their face?

II. Are plaintiffs entitled to an injunction against the enforcement of these laws?


Defendants have suggested that this Court should abstain from rendering a decision on plaintiffs' request for a declaratory judgment. However, we are guided to an opposite conclusion by the authority of Zwickler v. Koota, 389 U.S. 241, 248–249, 88 S.Ct. 391, 19 L. Ed. 2d 444 (1967):

The judge-made doctrine of abstention * * * sanctions * * * escape only in narrowly limited 'special circumstances' * * * is the susceptibility of a state statute of a construction by the state courts that would avoid or modify the constitutional question.

The Court in Zwickler v. Koota subsequently quoted from United States v. Livingston, 179 F. Supp. 9, 12–13 (E.D.S.C. 1959):

"Regard for the interest and sovereignty of the state and reluctance needlessly to adjudicate constitutional issues may require a federal District Court to abstain from adjudication if parties may avail themselves of an appropriate procedure to obtain state interpretation of state laws requiring construction. * * * The decision [Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L. Ed. 2d 1152], however, is not a broad encyclical commanding automatic remission to the state courts of all federal constitutional question, it is the duty of a federal court to decide the federal question when presented to it. Any other course would impose expense and long delay upon the litigants without hope of its bearing fruit."6

[4] Inasmuch as there is no possibility that state question adjudication in the courts of Texas would eliminate the necessity for this Court to pass upon plaintiffs' Ninth Amendment claim or Dr. Hallford's attack on Article 1196 for vagueness, abstention as to their request for declaratory judgment is unwarranted. Compare City of Chicago v. Atchison, T. & S. F. R. Co., 357 U.S. 77, 84,78 S.Ct. 1063, 2 L. Ed. 2d 1174 (1958), with Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct.788, 25 L. Ed. 2d 68 (1970).

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[5] On the merits, plaintiffs argue as their principal contention7 that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couple of their rights secured by the Ninth Amendment8 to choose whether to have children. We agree.

The essence of the interest sought to be protected here is the right of choice over events which, by their character and consequences, bear in a fundamental manner on their privacy of individuals. The manner by which such interests are secured by the Ninth Amendment is illustrated by the concurring opinion of Mr. Justice Goldberg in Griswold v. Connecticut, 381 U.S. 479, 492, 85, S.Ct. 1678 14 L. Ed. 2d 510 (1965):

"[T]he Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that ate not expressly enumerated in the first eight amendments and intent that the list of rights included there not be deemed exhaustive." * * *


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