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Under the Constitution is not permitted to create new laws. Its role is to interpret and apply the Constitution. In 1857, the Supreme Court, in a 7-2 decision known as Dred Scott, declared that Negro slaves were neither citizens nor persons within the meaning of the law and were the property of their owners just like cattle. Owners had a legal right to buy, sell or even kill their slaves. Slave owners told abolitionists that if they thought slavery was wrong they needn't buy one. It took the Civil War and the Thirteenth Amendment to the Constitution to end slavery in the United States.
The 1973 Roe v. Wade case was a challenge to a Texas law that prohibited abortion except to save the life of the mother. "Jane Roe" (a pseudonym for Norma McCorvey), a single pregnant woman who claimed to have become pregnant as a result of a gang rape (a claim that was later revealed to be false), was used by abortion advocates to bring a class action suit against the state of Texas. Jane Roe's lawyer, Sarah Weddington, argued that Jane Roe and all women have a right to abortion under the U.S. Constitution, and therefore that laws prohibiting abortion in Texas and other states are unconstitutional and should be ruled invalid.
The Court issued its decision in the Roe v. Wade case on Jan. 22, 1973. By a vote of 7-2, the Court agreed with Weddington that women have a fundamental right to abortion under the U.S. Constitution. In one decision, seven men abolished all pro-life laws that existed in states across the country.
In Roe, the Court ruled that laws prohibiting abortion, such as the Texas law, violate the Due Process Clause of the Fourteenth Amendment, which states: "No State ... shall ... deprive any person of life, liberty, or property, without due process of law." The Court divided pregnancy into three roughly three-month periods, or trimesters.
The Court ruled that during the first trimester of pregnancy, a woman has an absolute right to an abortion and the government cannot interfere with that right. In the second trimester, the woman still has a right to an abortion, but the state has an interest in protecting the woman’s health. Therefore, while states cannot ban abortion in the second trimester, they can protect the woman’s health by requiring physicians and clinics to meet certain standards (e.g., cleanliness requirements) in order to perform abortions. States can pass laws concerning abortion in the second trimester only so long as they intend to protect the woman’s health. In the third trimester of pregnancy, the Court decided that the state has a right to protect the life of the unborn if it so chooses. Because the unborn child is viable—she is capable of surviving outside the womb—the state’s right to protect the unborn is now more important than the woman’s right to have an abortion. Thus, in the third trimester, states may pass laws that significantly restrict or even prohibit abortions, as long as there are exceptions for when abortion is necessary to preserve a woman’s life or "health."
It appeared, then, that the Roe v. Wade decision would require legalized abortion for any reason through the first two trimesters of pregnancy, but would allow states to ban abortion during the final three months. But there was a catch. The Court specifically required a “health” exception for any third-trimester abortion bans, and the breadth of that exception was defined in Roe's companion case, Doe v. Bolton.
Meant to be read with Roe, the Doe decision defined the "health" exception so broadly as to encompass virtually any reason. Thus, Roe and Doe together permit abortion for any reason, throughout all nine months of pregnancy.
The aftermathSince the 1973 Roe v. Wade and Doe v. Bolton decisions, more than 55 million unborn children have been killed by abortion in the United States.
Even today, in addition to the devastating loss of life due to Roe and Doe, the effects of these decisions have left a significant mark on American society. More than three decades after the decisions were handed down, the cases remain highly controversial. For example, when new judicial nominees are considered, how they may rule on Roe if it were to come before the Court for reconsideration weighs heavily in the discussion and debate surrounding their confirmation.
Abortion on demand in Minnesota
If Roe v. Wade were to be overturned by the U.S. Supreme Court, each state would be charged with devising its own individual policies regarding abortion. Unfortunately for Minnesota, if Roe falls we would still have abortion on demand because of a Minnesota Supreme Court decision, Doe v. Gomez (1995), which found a supposed absolute "right" to abortion in the Minnesota Constitution. In that decision, the Court also required taxpayer funding of abortion. Gomez in another clear example of a court usurping the role of the Legislature and the people in determining public policy.
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