Gitlow v New york

Gitlow  v. New York

Gitlow v. New York, 268 U.S. 52. (1925), was a decision by the United States Supreme Court, which ruled that the Fourteenth Amendment to the United States Constitution had extended the reach of certain provisions of the First Amendment—specifically the provisions protecting freedom of speech andfreedom of the press—to the governments of the individual states.

The Supreme Court previously held, in Barron v. Baltimore, 32 U.S. 243 (1833), that the Constitution's Bill of Rights applied only to the federal government, and that, consequently, the federal courts could not stop the enforcement of state laws that restricted the rights enumerated in the Bill of Rights. Gitlow v. New York's partial reversal of that precedent began a trend toward nearly complete reversal; the Supreme Court now holds that almost every provision of the Bill of Rights applies to both the federal government and the states. The Court upheld the state law challenged in Gitlow v. New York, which made it a crime to advocate the duty, need, or appropriateness of overthrowing government by force or violence. The Court's ruling on the effects of the Fourteenth Amendment was incidental to the decision, but nevertheless established an extremely significant precedent.

Background and ruling

As justification for its decision, the Supreme Court relied on the "due process clause" of the Fourteenth Amendment. This provision, contained in Section One of the amendment, prohibits any state from depriving "any person of life, liberty, or property, without due process of law." Specifically, in its decision the Court stated that "For present purposes we may and do assume that" the rights of freedom of speech and freedom of the press were "among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the states" (at 666). The Court would go on to use this logic of incorporation much more purposefully in other cases, such as De Jonge v. Oregon, 299 U.S. 353 (1937), Wolf v. Colorado, 338 U.S. 25 (1949), and Gideon v. Wainwright, 372 U.S. 335 (1963), to extend the reach of the Bill of Rights. Constitutional scholars refer to this process as the "incorporation doctrine," meaning that the Supreme Court incorporates specific rights into the due process clause of the Fourteenth Amendment.

Gitlow v. New York was also important for defining the scope of the First Amendment's protection of free speech following the period of the "Red Scare," in which Communists and Socialist Party members were routinely convicted for violating the Espionage Act of 1917 and Sedition Act of 1918. Gitlow, a Socialist, had been convicted of criminal anarchy after publishing a "Left Wing Manifesto." The Court upheld his conviction on the basis that the government may suppress or punish speech when it directly advocates the unlawful overthrowing of the government.

The opinions in this case are notable for their attempt to define more clearly the "clear and present danger" test that came out of Schenck v. United States, 249 U.S. 47 (1919). The majority opinion written by Justice Edward Terry Sanford, embracing the bad tendency test that came out from Abrams v. United States, 250 U.S. 616 (1919), stated that a "State may punish utterances endangering the foundations of government and threatening its overthrow by unlawful means" because such speech clearly "present[s] a sufficient danger to the public peace and to the security of the State." According to Sanford, "a single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration." The case was also notable for being the American Civil Liberties Union's first major First Amendment case before the Supreme Court.

Dissent

In the dissenting opinion, Justice Holmes, the original author of the clear and present danger test, disagreed, arguing that Gitlow presented no present danger because only a small minority of people shared the views presented in the manifesto and because it directed an uprising at some "indefinite time in the future."

Spencer v Harding

Spencer v Harding

Spencer v Harding (1870) LR 5 CP 561 is an English contract law case concerning the requirements of offer and acceptance in the formation of a contract. The case established that an offer inviting tenders to be submitted for the purchase of stock did not amount to an offer capable of acceptance to sell that stock, but rather amounted to an invitation to treat.

Facts

The Defendants sent out a circular containing the following wording:

“

28, King Street, Cheapside, May 17th, 1869. We are instructed to offer to the wholesale trade for sale by tender the stock in trade of Messrs. G. Eilbeck & Co., of No. 1, Milk Street, amounting as per stock-book to 2503l. 13s. 1d., and which will be sold at a discount in one lot. Payment to be made in cash. The stock may be viewed on the premises, No. 1, Milk Street, up to Thursday, the 20th instant, on which day, at 12 o'clock at noon precisely, the tenders will be received and opened at our offices. Should you tender and not attend the sale, please address to us sealed and inclosed, 'Tender for Eilbeck's stock.' Stock-books may be had at our offices on Tuesday morning. Honey, Humphreys, & Co.

”

The Defendants did not promise to sell the stock to the highest bidder for cash. The Claimants sent a tender to the Defendants which, following the submission of all tenders, was the highest tender. The Defendants refused to sell the stock to the Claimants.

The Defendants submitted that the circular was not intended to be a binding offer capable of acceptance. Rather, it was merely a circular inviting others to make offers. The Claimants submitted that the circular did constitute a valid offer and that the Claimant had, by submitting the highest tender and attending all the necessary meetings, accepted that offer.

Judgment

Willes J held that the circular was not an offer, but merely an invitation to gather tenders, upon which the Defendants were entitled to act. Willes, J. held that the absence of any specific wording such as "and we undertake to sell to the highest bidder" rebutted any presumption that the Defendants had intended to be bound by a contract and distinguished the present circumstances from instances of reward contract offers or an offer to the world.

Keating J and Montague Smith J concurred.

Partridge v crittenden (invitation to treat)

Partridge v Crittenden

Partridge v Crittenden [1968] 1 WLR 1204 is an English case, which was heard by the Divisional Court of the Queen's Bench Division of the High Court of England and Wales on appeal from the Magistrates' Court and is well-known (amongst other cases) for establishing the legal precedent in English contract law, that usually advertisements are invitations to treat.

Facts

On the 13th April 1967 an advertisement by the appellant (Arthur Robert Partridge) appeared in the periodical "Cage and Aviary Birds", under the general heading "Classified Advertisements" which contained, amongst others, the words Quality British A.B.C.R... Bramblefinch cocks, Bramblefinch hens 25 s. each. In no place was there any direct use of the words "offer for sale". A Thomas Shaw Thompson wrote to Partridge asking him to send him an ABCR Bramblefinch hen (a brambling) and enclosed a cheque for 30s. On the 1st May 1967 Partridge dispatched a brambling, which was wearing a closed-ring around its leg, to Thompson in a box. Thompson received the box on 2 May 1967 and was able to remove the ring from the bird's leg without injuring it.

Partridge was charged by Anthony Ian Crittenden, on behalf of the RSPCA, with illegally offering for sale a wild life bird which was not a close-ringed specimen, bred in captivity, against s. 6(1)* and Sch. 4* of the Protection of Birds Act 1954. The magistrates decided that the advertisement was an offer for sale and that the ABCR Bramblefinch hen was not a close-ringed specimen bred in captivity, because it was possible to remove the ring from the bird's leg.

Partridge was convicted, was fined £5 and ordered to pay £5 5 s. advocate's fee and £4 9 s. 6 d. witnesses' expenses.

Partridge appealed against conviction.

Judgement

The legal question facing the High Court was whether the appellant's advertisement constituted a legitimate offer for sale, and whether the bird was not a close-ringed specimen bred in captivity under the Protection of Birds Act 1954 if it were possible to remove the ring from its leg.

It was held that the advertisement in question constituted in law an invitation to treat and not an offer to sell; therefore the offence with which the appellant was charged was not established. The judges also said that if the only issue were whether the bird was a close-ringed specimen under the Protection of Birds Act 1954, the magistrates' judgement would have been upheld. Ashworth J gave his judgement first.

“

This is an appeal by way of case stated from a decision of Chester justices. On July 19, 1967, they heard an information preferred by the prosecutor on behalf of the RSPCA alleging against the appellant that he did unlawfully offer for sale a certain live wild bird, to wit a brambling, being a bird included in schedule 4 to the Protection of Birds Act 1954, of a species which is resident in or visits the British Isles in a wild state, other than a close-ringed specimen bred in captivity, contrary to section 6, subsection (1) of the Act. The case arose because in a periodical known as “Cage and Aviary Birds,” the issue for April 13, 1967, there appeared an advertisement inserted by the appellant containing, inter alia, the words “Quality British A.B.C.R. … bramblefinch cocks, bramblefinch hens, 25s each.” In the case stated the full advertisement is not set out, but by the agreement of counsel this court has seen a copy of the issue in question, and what is perhaps to be noted in passing is that on the page there is a whole list of different birds under the general heading of “Classified Advertisements.” In no place, so far as I can see, is there any direct use of the words “Offers for sale.” I ought to say I am not for my part deciding that that would have the result of making this judgment any different, but at least it strengthens the case for the appellant that there is no such expression on the page. Having seen that advertisement, Mr. Thompson wrote to the appellant and asked for a hen and enclosed a cheque for 30s A hen, according to the case, was sent to him on May 1, 1967, which was wearing a closed-ring, and he received it on May 2. The box was opened by Mr. Thompson in the presence of the prosecutor, and the case finds that Mr. Thompson was able to remove the ring without injury to the bird, and even taking into account that the bird had travelled from Leicester in a box on the railway, its condition was rough, it was extremely nervous, it had no perching sense at all and its plumage was rough. Stopping there, the inference from that finding is that the justices were taking the view, or could take the view, that from its appearance, at any rate, this was not such a bird as a person can legitimately sell within the Act of 1954. The case goes on to find: “The expression ‘close-ringed’ is nowhere defined nor is there any universally recommended size ring for a bramble finch... (g) The ring is placed on the bird's leg at the age of three to 10 days at which time it is not possible to determine what the eventual girth of the bird's leg will be.” Having been referred to the decision of this court in Fisher v. Bell the justices nonetheless took the view that the advertisement did constitute an offer for sale; they went on further to find that the bird was not a close-ringed specimen bred in captivity, because it was possible to remove the ring. Before this court Mr. Pitchers for the appellant, has taken two points, first, this was not an offer for sale and, secondly, that the justices' reason for finding that it was not a close-ringed bird was plainly wrong because the fact that one could remove the ring did not render it a non-close-ringed bird. It is convenient, perhaps, to deal with the question of the ring first. For my part I confess I was in ignorance, and in some state of confusion, as to the real meaning and effect of this particular phrase in the section, and I express my indebtedness to Mr. Havers, for the prosecutor, for having made the matter, as far as I am concerned, perfectly clear. I would say if one was looking for a definition of the phrase “close-ringed” it means ringed by a complete ring, which is not capable of being forced apart or broken except, of course, with the intention of damaging it. I contrast a closed-ring of that sort — it might take the form, I suppose, of an elastic band or of a metal circle ring — with the type of ring which sometimes exists which is made into a ring when a tongue is placed through a slot and then drawn back; that is a ring which can be undone and is not close-ringed. In this case what is contemplated, according to Mr. Havers, and I accept it, is that with a young bird of this sort between three and ten days after hatching a closed-ring of the type described is forced over its claws, which are obviously brought together so as to admit the passage of the ring, and it is then permanently on or around the bird's leg, and as it grows, it would be impossible to take that ring off because the claws and the like would have rendered a repetition of the earlier manoeuvre impossible. Therefore, approaching the matter this way, I can well understand how the justices came to the conclusion that this was not a close-ringed specimen, because they could take the ring off. If that were the only issue, I should not find any difficulty in upholding their decision. But the real point of substance in this case arose from the words “offer for sale,” and it is to be noted in section 6 of the Act of 1954 that the operative words are “any person sells, offers for sale or has in his possession for sale.” For some reason which Mr. Havers for the prosecutor has not been able to explain, those responsible for the prosecution in this case chose, out of the trio of possible offences, the one which could not succeed. There was a sale here, in my view, because Mr. Thompson sent his cheque and the bird was sent in reply; and a completed sale. On the evidence there was also a plain case of the appellant having in possession for sale this particular bird. But they chose to prosecute him for offering for sale, and they relied on the advertisement. A similar point arose before this court in 1960 dealing, it is true, with a different statute but with the same words, in Fisher v. Bell. The relevant words of section 1 (1) of the Restriction of Offensive Weapons Act 1959, in that case were: “Any person who … offers for sale. … (a) any knife. …” Lord Parker C.J., in giving judgment said: “The sole question is whether the exhibition of that knife in the window with the ticket constituted an offer for sale within the statute. I confess that I think that most lay people and, indeed, I myself when I first read the papers, would be inclined to the view that to say that if a knife was displayed in a window like that with a price attached to it was not offering it for sale was just nonsense. In ordinary language it is there inviting people to buy it, and it is for sale; but any statute must of course be looked at in the light of the general law of the country.” The words are the same here “offer for sale,” and in my judgment the law of the country is equally plain as it was in regard to articles in a shop window, namely that the insertion of an advertisement in the form adopted here under the title “Classified Advertisements” is simply an invitation to treat. That is really sufficient to dispose of this case. I should perhaps in passing observe that the editors of the publication Criminal Law Review had an article dealing with Fisher v. Bell in which a way round that decision was at least contemplated, suggesting that while there might be one meaning of the phrase “offer for sale” in the law of contract, a criminal court might take a stricter view, particularly having in mind the purpose of the Act, in Fisher v. Bell the stocking of flick knives, and in this case the selling of wild birds. But for my part that is met entirely by the quotation which appears in Lord Parker's judgment in Fisher v. Bell, that “It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation.” I would allow this appeal and quash the conviction. Lord Parker CJ I agree and with less reluctance than in Fisher v. Bell, and Mella v. Monahan I say “with less reluctance” because I think when one is dealing with advertisements and circulars, unless they indeed come from manufacturers, there is business sense in their being construed as invitations to treat and not offers for sale. In a very different context in Grainger & Son v. Gough Lord Herschell said dealing with a price-list: “The transmission of such a price-list does not amount to an offer to supply an unlimited quantity of the wine described at the price named, so that as soon as an order is given there is a binding contract to supply that quantity. If it were so, the merchant might find himself involved in any number of contractual obligations to supply wine of a particular description which he would be quite unable to carry out, his stock of wine of that description being necessarily limited.” It seems to me accordingly that not only is it the law but common sense supports it.

”

By Blain J concurred.

Annex

From s 6(1) of the Protection of Birds Act 1954: "If... any person sells, offers for sale... (a) any live wild bird... including in Sch. 4 to this Act of a species which is resident in or visits the British Isles in a wild state, other than a close-ringed specimen bred in captivity;... he shall be guilty of an offence..."

Sch 4 of the Protection of Birds Act 1954 has the heading: "Wild birds which may not be sold alive unless close-ringed and bred in captivity" and amongst the names in the schedule is "brambling".

Central London Property Trust Ltd v High Trees House Ltd

Central London Property Trust Ltd v High Trees House Ltd

“

a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact so acted on.

”

Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 (or the High Trees case) is an English contract law decision in the High Court. It reaffirmed the doctrine of promissory estoppel in contract law in England and Wales. Denning J held estoppel to be,

Facts

In 1937, High Trees House Ltd leased a block of flats in Balham, London, for a rate £2500/year from Central London Property Trust Ltd. Due to the conditions during the beginning of World War IIoccupancy rates were drastically lower than normal.

In January 1940, to ameliorate the situation the parties made an agreement in writing to reduce rent by half. However, neither party stipulated the period for which this reduced rental was to apply. Over the next five years, High Trees paid the reduced rate while the flats began to fill, and by 1945, the flats were back at full occupancy. Central London sued for payment of the full rental costs from June 1945 onwards (i.e. for last two quarters of 1945).

Judgment

Based on previous judgments such as Hughes v Metropolitan Railway Co, Denning J held that the full rent was payable from the time that the flats became fully occupied in mid-1945. However, he continued in an obiter statement that if Central London had tried to claim for the full rent from 1940 onwards, they would not have been able to. This was reasoned on the basis that if a party leads another party to believe that he will not enforce his strict legal rights, then the Courts will prevent him from doing so at a later stage. This obiter remark was not actually a binding precedent, yet it essentially created the doctrine of promissory estoppel.

“

If I were to consider this matter without regard to recent developments in the law, there is no doubt that had the plaintiffs claimed it, they would have been entitled to recover ground rent at the rate of 2,500l. a year from the beginning of the term, since the lease under which it was payable was a lease under seal which, according to the old common law, could not be varied by an agreement by parol (whether in writing or not), but only by deed. Equity, however stepped in, and said that if there has been a variation of a deed by a simple contract (which in the case of a lease required to be in writing would have to be evidenced by writing), the courts may give effect to it as is shown in Berry v. Berry [1929] 2 K. B. 316. That equitable doctrine, however, could hardly apply in the present case because the variation here might be said to have been made without consideration. With regard to estoppel, the representation made in relation to reducing the rent was not a representation of an existing fact. It was a representation, in effect, as to the future, namely, that payment of the rent would not be enforced at the full rate but only at the reduced rate. Such a representation would not give rise to an estoppel, because, as was said in Jorden v. Money (1854) 5 H. L. C. 185, a representation as to the future must be embodied as a contract or be nothing. But what is the position in view of developments in the law in recent years? The law has not been standing still since Jorden v. Money (1854) 5 H. L. C. 185. There has been a series of decisions over the last fifty years which, although they are said to be cases of estoppel are not really such. They are cases in which a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact so acted on. In such cases the courts have said that the promise must be honoured. The cases to which I particularly desire to refer are: Fenner v. Blake [1900] 1 Q. B. 426, In re Wickham (1917) 34 T. L. R. 158, Re William Porter & Co., Ld. [1937] 2 All E. R. 361 and Buttery v. Pickard [1946] W. N. 25. As I have said they are not cases of estoppel in the strict sense. They are really promises - promises intended to be binding, intended to be acted on, and in fact acted on. Jorden v. Money (1854) 5 H. L. C. 185 can be distinguished, because there the promisor made it clear that she did not intend to be legally bound, whereas in the cases to which I refer the proper inference was that the promisor did intend to be bound. In each case the court held the promise to be binding on the party making it, even though under the old common law it might be difficult to find any consideration for it. The courts have not gone so far as to give a cause of action in damages for the breach of such a promise, but they have refused to allow the party making it to act inconsistently with it. It is in that sense, and that sense only, that such a promise gives rise to an estoppel. The decisions are a natural result of the fusion of law and equity: for the cases of Hughes v. Metropolitan Ry. Co. (1877) 2 App. Cas. 439 , 448, Birmingham and District Land Co. v. London & North Western Ry. Co. (1888) 40 Ch. D. 268 , 286 and Salisbury (Marquess) v. Gilmore [1942] 2 K. B. 38 , 51, afford a sufficient basis for saying that a party would not be allowed in equity to go back on such a promise. In my opinion, the time has now come for the validity of such a promise to be recognized. The logical consequence, no doubt is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration: and if the fusion of law and equity leads to this result, so much the better. That aspect was not considered in Foakes v. Beer (1884) 9 App. Cas. 605. At this time of day however, when law and equity have been joined together for over seventy years, principles must be reconsidered in the light of their combined effect. It is to be noticed that in the Sixth Interim Report of the Law Revision Committee, pars. 35, 40, it is recommended that such a promise as that to which I have referred should be enforceable in law even though no consideration for it has been given by the promisee. It seems to me that, to the extent I have mentioned, that result has now been achieved by the decisions of the courts. I am satisfied that a promise such as that to which I have referred is binding and the only question remaining for my consideration is the scope of the promise in the present case. I am satisfied on all the evidence that the promise here was that the ground rent should be reduced to 1,250l. a year as a temporary expedient while the block of flats was not fully, or substantially fully let, owing to the conditions prevailing. That means that the reduction in the rent applied throughout the years down to the end of 1944, but early in 1945 it is plain that the flats were fully let, and, indeed the rents received from them (many of them not being affected by the Rent Restrictions Acts), were increased beyond the figure at which it was originally contemplated that they would be let. At all events the rent from them must have been very considerable. I find that the conditions prevailing at the time when the reduction in rent was made, had completely passed away by the early months of 1945. I am satisfied that the promise was understood by all parties only to apply under the conditions prevailing at the time when it was made, namely, when the flats were only partially let, and that it did not extend any further than that. When the flats became fully let, early in 1945, the reduction ceased to apply. In those circumstances, under the law as I hold it, it seems to me that rent is payable at the full rate for the quarters ending September 29 and December 25, 1945. If the case had been one of estoppel, it might be said that in any event the estoppel would cease when the conditions to which the representation applied came to an end, or it also might be said that it would only come to an end on notice. In either case it is only a way of ascertaining what is the scope of the representation. I prefer to apply the principle that a promise intended to be binding, intended to be acted on and in fact acted on, is binding so far as its terms properly apply. Here it was binding as covering the period down to the early part of 1945, and as from that time full rent is payable. I therefore give judgment for the plaintiff company for the amount claimed.

”

Ipact

The doctrine of promissory estoppel has had a major impact on English and Irish contract law since the High Trees case. Debates surrounding the expansion and application of the doctrine have included whether or not detrimental reliance is required in order to bring the doctrine into effect, whether the doctrine can create a cause of action or merely provide a defence to a cause of action and whether or not the evolution of the doctrine has abrogated or abolished the rule in Pinnel's case.

In Amalgamated Investment Co v Texas Bank [1982] 1 QB 122 it was held that the doctrine could act as a sword and not merely as a shield (that is, it could be used as a cause of action rather than merely providing a defence to an action).

Attempts have been made to utilize the doctrine of promissory estoppel after High Trees to create a new inroad into the rule in Pinnel's case that an agreement to accept part payment of a debt in full satisfaction of it is unenforceable for want of consideration. In the High Trees case Lord Denning commented, obiter, that such an agreement should now be enforceable under the doctrine of promissory estoppel. However, the courts have traditionally been reluctant to overrule cases like Pinnel's case and Foakes v Beer as they have formed part of the common law for so long. Lady Justice Arden inCollier v P & MJ Wright (Holdings) Ltd [2007] EWCA Civ 1329 accepted in principle that High Trees could be used to extinguish a creditor's right to full payment of a debt in such circumstances.

Roe v Wade ....legally speaking, when does a foetus become a person?

 

Roe v. Wade

Roe v. Wade, 410 U.S. 113 (1973), was a landmark controversial decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion, but that right must be balanced against the state's two legitimate interests for regulating abortions: protecting prenatal life and protecting the mother's health. Saying that these state interests become stronger over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the mother's current trimester of pregnancy.

The Court later rejected Roe's trimester framework, while affirming Roe's central holding that a person has a right to abortion up until viability. The Roedecision defined "viable" as being "potentially able to live outside the mother's womb, albeit with artificial aid," adding that viability "is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."

In disallowing many state and federal restrictions on abortion in the United States, Roe v. Wade prompted a national debate that continues today, about issues including whether and to what extent abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role should be of religious and moral views in the political sphere. Roe v. Wade reshaped national politics, dividing much of the nation into pro-choice and pro-life camps, while activating grassroots movements on both sides.

Both supporters and opponents of Roe have sometimes mischaracterized the decision’s effects. For example, a pro-choice claim is that overturning Roewould result in thousands of women per year dying from illegal abortions. A pro-life claim is that the female suicide rate worsened because of Roe. According to FactCheck, neither claim is well-founded.

In June 1969, Norma L. McCorvey discovered she was pregnant with her third child. She returned to Dallas, where friends advised her to assert falsely that she had been raped, as she could then obtain a legal abortion (with the understanding that Texas' anti-abortion laws allowed abortion in the cases of rape and incest). However, this scheme failed, as there was no police report documenting the alleged rape. She attempted to obtain an illegal abortion, but found the unauthorized site shuttered, closed down by the police. Eventually, she was referred to attorneys Linda Coffee and Sarah Weddington. (McCorvey would give birth before the case was decided.)

Prior history of the case

In 1970, attorneys Linda Coffee and Sarah Weddington filed suit in a U.S. District Court in Texas on behalf of Norma L. McCorvey (under the alias Jane Roe). The defendant in the case was Dallas County District Attorney Henry Wade, representing the State of Texas. At the time, McCorvey was no longer claiming her pregnancy was the result of rape, and she later acknowledged she had lied earlier about having been raped. "Rape" is not mentioned in the judicial opinions in this case.

The district court ruled in McCorvey's favor on the merits, and declined to grant an injunction against the enforcement of the laws barring abortion. The district court's decision was based upon theNinth Amendment, and the court relied upon a concurring opinion by Justice Arthur Goldberg in the 1965 Supreme Court case of Griswold v. Connecticut, regarding a right to use contraceptives. Few state laws proscribed contraceptives in 1965 when the Griswold case was decided, whereas abortion was widely proscribed by state laws in the early 1970s.

Roe v. Wade ultimately reached the U.S. Supreme Court on appeal. Following a first round of arguments, Justice Harry Blackmun drafted a preliminary opinion that emphasized what he saw as the Texas law's vagueness. Justices William Rehnquist and Lewis F. Powell, Jr. joined the Supreme Court too late to hear the first round of arguments. Therefore, Chief Justice Warren Burger proposed that the case be reargued; this took place on October 11, 1972. Weddington continued to represent Roe, and Texas Assistant Attorney General Robert C. Flowers stepped in to replace Wade. JusticeWilliam O. Douglas threatened to write a dissent from the reargument order, but was coaxed out of the action by his colleagues, and his dissent was merely mentioned in the reargument order without further statement or opinion.

Supreme Court decision

The court issued its decision on January 22, 1973, with a 7-to-2 majority vote in favor of Roe. Burger and Douglas' concurring opinion and White's dissenting opinion were issued separately, in the companion case of Doe v. Bolton. The Roe Court deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny.

Ninth Amendment

The opinion of the Roe Court, written by Justice Harry Blackmun, declined to adopt the district court's Ninth Amendment rationale, and instead asserted that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Douglas in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, "The Ninth Amendment obviously does not create federally enforceable rights." Thus, the Roe majority rested its opinion squarely on the Constitution's due process clause.

Justiciability

An aspect of the decision that attracted comparatively little attention was the Court's disposition of the issues of standing and mootness. Under the traditional interpretation of these rules, Jane Roe's appeal was "moot" because she had already given birth to her child and thus would not be affected by the ruling; she also lacked "standing" to assert the rights of other pregnant women. As she did not present an "actual case or controversy" (a grievance and a demand for relief), any opinion issued by the Supreme Court would constitute an advisory opinion, a practice in which the Court traditionally did not engage.

The Court concluded that the case came within an established exception to the rule; one that allowed consideration of an issue that was "capable of repetition, yet evading review." This phrase had been coined in 1911 by Justice Joseph McKenna. Blackmun's opinion quoted McKenna, and noted that pregnancy would normally conclude more quickly than an appellate process: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied."

History of abortion laws in the United States

According to the Roe Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." Before 1821, when Connecticut passed the first state statute criminalizing abortion, abortion in the United States was sometimes considered a common law crime. Every state had abortion legislation by 1900. The Court concluded that the Texas statute and other abortion legislation in the United States were aberrations.

Dissents

Associate Justices Byron R. White and William H. Rehnquist wrote emphatic dissenting opinions in this case. Justice White wrote:

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

White asserted that the Court "values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries." Despite White suggesting he "might agree" with the Court's values and priorities, he wrote that he saw "no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States." White criticized the Court for involving itself in this issue by creating "a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it." He would have left this issue, for the most part, "with the people and to the political processes the people have devised to govern their affairs."

Rehnquist elaborated upon several of White's points, by asserting that the Court's historical analysis was flawed:

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.

From this historical record, Rehnquist concluded that, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." Therefore, in his view, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."

Controversy

Some pro-life supporters suggest that personhood begins at fertilization (also referred to as conception), and should therefore be protected by the Constitution; the dissenting justices in Roe instead wrote that decisions about abortion "should be left with the people and to the political processes the people have devised to govern their affairs." The majority opinion allowed states to protect "fetal life after viability" even though a fetus is not "a person within the meaning of the Fourteenth Amendment". A prominent argument against the Roe decision is that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm.

Every year on the anniversary of the decision, pro-life supporters march up Constitution Avenue to the Supreme Court Building in Washington, D.C. in the March for Life. Around 250,000 people attend the march each year.

Advocates of Roe describe it as vital to the preservation of women's rights, personal freedom, and privacy. Denying the abortion right has been equated to compulsory motherhood, and some scholars (not including any member of the Supreme Court) have argued that abortion bans therefore violate the Thirteenth Amendment:

When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the Thirteenth Amendment….[E]ven if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant.

Opponents of Roe have objected that the decision lacks a valid constitutional foundation. Like the dissenters in Roe, they have maintained that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the democratic process, rather than through an all-encompassing ruling from the Supreme Court.

Supporters of Roe contend that the decision has a valid constitutional foundation, or contend that justification for the result in Roe could be found in the Constitution but not in the articles referenced in the decision.

In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent for minors to obtain abortions, parental notification laws, spousal mutual consent laws, spousal notification laws, laws requiring abortions to be performed in hospitals but not clinics, laws barring state funding for abortions, laws banning intact dilation and extraction (also known as partial-birth abortion), laws requiring waiting periods before abortion, or laws mandating women read certain types of literature and watch a fetal ultrasound before undergoing an abortion. Congress in 1976 passed the Hyde Amendment, barring federal funding of abortions (except in the case of rape, incest, or life of the mother) for poor women through the Medicaidprogram. The Supreme Court struck down several state restrictions on abortions in a long series of cases stretching from the mid-1970s to the late 1980s, but upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).

The most prominent organized groups that mobilized in response to Roe are the National Abortion Rights Action League on the pro-choice side, and the National Right to Life Committee on the pro-life side. The late Harry Blackmun, author of the Roe opinion, was a determined advocate for the decision. Others have joined him in support of Roe, including Judith Jarvis Thomson, who before the decision had offered an influential defense of abortion. Perhaps the most notable opposition to Roe comes from Roe herself. In 1995, Norma L. McCorvey revealed that she became pro-life and is now a vocal opponent to abortion.

Roe remains controversial. Polls show continued division about its landmark rulings, and about the decision as a whole.

Internal memoranda

Internal Supreme Court memoranda surfaced in the Library of Congress in 1988, among the personal papers of Douglas and other Justices, showing the private discussions of the Justices on the case. Blackmun said of the majority decision he authored, "You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to the state legislatures, though he joined Blackmun's decision.

The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the Court's decision.The "viability" criterion, which Blackmun acknowledged was arbitrary, is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.

Liberal critiques

Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One reaction has been to argue that Justice Blackmun reached the correct result but went about it the wrong way. Another reaction has been to argue that the ends achieved by Roe do not justify the means.

Justice John Paul Stevens, in a 2007 interview, averred that Roe "create[d] a new doctrine that really didn’t make sense," and lamented that if Justice Blackmun "could have written a better opinion[, that] ... might have avoided some of the criticism." His colleague Justice Ruth Bader Ginsburg had, before joining the Court, criticized the decision for terminating a nascent democratic movement to liberalize abortion law. Watergate prosecutor Archibald Cox wrote: "[Roe’s] failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations.... Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."

In a 1973 article in the Yale Law Journal, Professor John Hart Ely criticized Roe as a decision which "is not constitutional law and gives almost no sense of an obligation to try to be." Ely added: "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure." Professor Laurence Tribe had similar thoughts: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Liberal law professors Alan Dershowitz, Cass Sunstein, and Kermit Roosevelt have also expressed disappointment with Roe.

Jeffrey Rosen and Michael Kinsley echo Ginsburg, arguing that a democratic movement would have been the correct way to build a more durable consensus in support of abortion rights. William Saletan wrote that "Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference." Benjamin Wittes has written that Roe"disenfranchised millions of conservatives on an issue about which they care deeply". And Edward Lazarus, a former Blackmun clerk who "loved Roe’s author like a grandfather" wrote: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible....Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms."

Public opinion

See also: Abortion in the United States: Public opinion

A Gallup poll conducted in May 2009 indicates that a minority of Americans, 37%, believe that abortion should be legal in any or most circumstances, compared to 41% in May 2008. Similarly, an April 2009 Pew Research Center poll showed a softening of support for legal abortion compared to the previous years of polling. People who said they support abortion in all or most cases dropped from 54% in 2008 to 46% in 2009.

In contrast, an October 2007 Harris poll on Roe v. Wade asked the following question:

In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?

In reply, 56 percent of respondents indicated favor while 40 percent indicated opposition. The Harris organization concluded from this poll that "56 percent now favors the U.S. Supreme Court decision." Pro-life activists have disputed whether the Harris poll question is a valid measure of public opinion about Roe's overall decision, because the question focuses only on the first three months of pregnancy. The Harris poll has tracked public opinion about Roe since 1973:

Regarding the Roe decision as a whole, more Americans support it than support overturning it.When pollsters describe various regulations that Roe prevents legislatures from enacting, support forRoe drops.

Role in subsequent decisions and politics

Opposition to Roe on the bench grew when President Reagan—who supported legislative restrictions on abortion—began making federal judicial appointments in 1981. Reagan denied that there was any litmus test: "I have never given a litmus test to anyone that I have appointed to the bench…. I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We've had too many examples in recent years of courts and judges legislating."

In addition to White and Rehnquist, Reagan appointee Sandra Day O'Connor began dissenting from the Court's abortion cases, arguing in 1983 that the trimester-based analysis devised by the RoeCourt was "unworkable." Shortly before his retirement from the bench, Chief Justice Warren Burger suggested in 1986 that Roe be "re-examined"; the associate justice who filled Burger's place on the Court—Justice Antonin Scalia—vigorously opposed Roe. Concern about overturning Roe played a major role in the defeat of Robert Bork's nomination to the Court in 1987; the man eventually appointed to replace Roe-supporter Lewis Powell was Anthony M. Kennedy.

The Supreme Court of Canada used the rulings in both Roe and Doe v. Bolton as grounds to find Canada's federal law restricting access to abortions unconstitutional. That Canadian case, R. v. Morgentaler, was decided in 1988.^[65]

Webster v. Reproductive Health Services

Main article: Webster v. Reproductive Health Services

In a 5-4 decision in 1989's Webster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution." In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.

In concurring opinions, O'Connor refused to reconsider Roe, and Justice Antonin Scalia criticized the Court and O'Connor for not overruling Roe. Blackmun – author of the Roe opinion – stated in his dissent that White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their plurality opinion "foments disregard for the law." White had recently opined that the majority reasoning in Roe v. Wade was "warped."

Planned Parenthood v. Casey

Main article: Planned Parenthood v. Casey

Roe supporters William J. Brennan and Thurgood Marshall retired from the Court in 1990 and 1991, respectively. They were replaced by David Souter, who is pro-choice, and Clarence Thomas, who is pro-life. Thus, Roe was viewed for the first time as being in danger. During the confirmation hearings of David Souter, NOW president Molly Yard declared that confirming Souter would mean "ending freedom for women in this country."

According to NPR, in deliberations for Planned Parenthood v. Casey (1992), an initial majority of five Justices that would have overturned Roe foundered when Justice Kennedy switched sides.O'Connor, Kennedy, and Souter joined Blackmun and Stevens to reaffirm the central holding of Roe, saying, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Justices Rehnquist, Scalia, White and Thomas would have overturned Roe. Only Justice Blackmun would have retained Roe entirely and struck down all aspects of the statute at issue in Casey.

Scalia's dissent acknowledged that abortion rights are of "great importance to many women", but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed. Scalia concluded: "[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish."

Stenberg v. Carhart

Main article: Stenberg v. Carhart

During the 1990s, Nebraska attempted to ban a certain second-trimester abortion procedure known as intact dilation and extraction (sometimes called partial birth abortion). The Nebraska ban allowed other second-trimester abortion procedures called dilation and evacuation abortions. Ginsburg (who replaced White) stated, "this law does not save any fetus from destruction, for it targets only 'a method of performing abortion'." The Supreme Court struck down the Nebraska ban by a 5-4 vote in Stenberg v. Carhart (2000), citing a right to use the safest method of second trimester abortion.

Kennedy, who had co-authored the 5-4 Casey decision upholding Roe, was among the dissenters in Stenberg, writing that Nebraska had done nothing unconstitutional. Kennedy described the second trimester abortion procedure that Nebraska was not seeking to prohibit: "The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off." Kennedy wrote that since this dilation and evacuation procedure remained available in Nebraska, the state was free to ban the other procedure sometimes called "partial birth abortion."

The remaining three dissenters in Stenberg – Thomas, Scalia, and Rehnquist – disagreed again with Roe: "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."

Gonzales v. Carhart

Main article: Gonzales v. Carhart

In 2003, Congress passed the Partial-Birth Abortion Ban Act, which led to a lawsuit in the case of Gonzales v. Carhart. The Court had previously ruled in Stenberg v. Carhart that a state's ban on "partial birth abortion" was unconstitutional because such a ban would not allow for the health of the mother. The membership of the Court changed after Stenberg, with John Roberts and Samuel Alitoreplacing Rehnquist and O'Connor, respectively. Further, the ban at issue in Gonzales v. Carhart was a clear federal statute, rather than a relatively vague state statute as in the Stenberg case.

On April 18, 2007, the Supreme Court handed down a 5 to 4 decision upholding the constitutionality of the Partial-Birth Abortion Ban Act. Kennedy wrote the majority opinion, asserting that Congress was within its power to generally ban the procedure, although the Court left the door open for as-applied challenges. Kennedy's opinion did not reach the question whether the Court's prior decisions inRoe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart were valid, and instead the Court said that the challenged statute is consistent with those prior decisions whether or not those prior decisions were valid.

Joining the majority were Chief Justice John Roberts, Scalia, Thomas, and Alito. Ginsburg and the other three justices dissented, contending that the ruling ignored Supreme Court abortion precedent, and also offering an equality-based justification for that abortion precedent. Thomas filed a concurring opinion, joined by Scalia, contending that the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed, and also noting that the Partial-Birth Abortion Ban Act may exceed the powers of Congress under the Commerce Clause.

Activities of Norma McCorvey

Norma McCorvey became a member of the pro-life movement in 1995; she now supports making abortion illegal. In 1998, she testified to Congress:

It was my pseudonym, Jane Roe, which had been used to create the "right" to abortion out of legal thin air. But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15, 20 years later and say, "Thank you for allowing me to have my five or six abortions. Without you, it wouldn't have been possible." Sarah never mentioned women using abortions as a form of birth control. We talked about truly desperate and needy women, not women already wearing maternity clothes.

As a party to the original litigation, she sought to reopen the case in U.S. District Court in Texas to have Roe v. Wade overturned. However, the Fifth Circuit decided that her case was moot, inMcCorvey v. Hill. In a concurring opinion, Judge Edith Jones agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development, but Jones said she was compelled to agree that the case was moot. On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, and McCorvey's appeal ended.

Presidential positions

Generally, presidential opinion has been split between major party lines. The Roe decision was opposed by Presidents Gerald Ford,Ronald Reagan, and George W. Bush. President George H.W. Bush also opposed Roe, though he had supported abortion rights earlier in his career.President Richard Nixon did not publicly comment about the decision. In private conversation later revealed as part of the Nixon tapes, Nixon said "There are times when an abortion is necessary, I know that. When you have a black and a white" (a reference to interracial pregnancies) "or a rape." However, Nixon was also concerned that greater access to abortions would foster "permissiveness," and said that "it breaks the family."

Jimmy Carter supported legal abortion from an early point in his political career, in order to prevent birth defects and in other extreme cases; he encouraged the outcome in Roe and generally supported abortion rights. Roe was also supported by President Bill Clinton.President Barack Obama has taken the position that, "Abortions should be legally available in accordance with Roe v. Wade.

State laws regarding Roe

Several states have enacted so-called trigger laws which would take effect in the event that Roe v. Wade is overturned. Those states include Arkansas, Illinois, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota. Additionally, many states did not repeal pre-1973 statutes that criminalized abortion, and some of those statutes could again be in force if Roe was reversed.

Other states have passed laws to maintain the legality of abortion if Roe v. Wade is overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington.