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8 - Wade-ing into controversy: a case of accidental activism

Published online by Cambridge University Press:  05 May 2016

Allan C. Hutchinson
Affiliation:
Osgoode Hall Law School, York University, Toronto
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Summary

The Supreme Court of the United States is no stranger to controversy. Its history is full of cases that have plunged the court into moral and social dilemmas of the most heated kind. As such, the justices have waded into or been thrust into deciding matters where others have feared (or been wise not) to tread. Unsurprisingly, some of its decisions have served to fan the flames of discord rather than douse them. Yet the US Supreme Court, like other highest courts of common law countries, has retained popular respect because it has managed to take a Goldilocks-style approach – not too far ahead of public opinion and not too far behind. While it might not always have been ‘just right’ in its decisions and opinions, it has succeeded in spotting and riding the incoming tide of social change in contentious matters, like school desegregation and gay rights.

However, one area of controversy that refuses to resolve itself or go away is abortion. It remains one of the most hotly contested areas on the social, moral, political and constitutional agenda. Despite the Supreme Court's 1973 decision to establish and protect a right for women to obtain an abortion, the debate around the existence and extent of such a right remains more embittered then ever. Indeed, the Supreme Court's decision in Roe v. Wade (and its legal repercussions) has become something of a lightning rod for supporters and opponents of a woman's right to choose. Whereas some harangue the decision for providing any constitutional protection for women's right to terminate a pregnancy, others criticise it for its failure to provide a compelling and solid basis for securing that right. All in all, the Roe decision has succeeded in satisfying few and alienating many.

In spite of or perhaps because of its notoriety, Roe v. Wade is accepted as one of the common law's greatest cases.

Type
Chapter
Information
Is Killing People Right?
More Great Cases that Shaped the Legal World
, pp. 114 - 131
Publisher: Cambridge University Press
Print publication year: 2016

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References

Brooks, David. ‘Op-Ed., Roe's Birth, and Death’, New York Times (21 April 2005), A23.
Brown v. Board of Education (1954), 347 US 483.
C-SPAN. ‘Justice Blackmun on Roe v. Wade (June 20, 1995)’, www.c-span.org/video/?183168-1/justice-blackmun-roe-v-wade.
Casey v. Planned Parenthood (1992), 505 US 833.
Garrow, David J. ‘She Put the v in Roe v. Wade’, New York Times (27 September 1992).
Greenhouse, Linda and Siegel, Reva B.. ‘Before (and After) Roe v. Wade: New Questions About Backlash’ (2011) 120 Yale L.J., 2028.Google Scholar
Kaplan, Laura. The Story of Jane: The Legendary Underground Feminist Abortion Service (University of Chicago Press, 1995)
Lawrence v. Texas (2003), 539 US 558.
McCorvey, Norma L. and Meisler, Andy, I Am Roe: My Life, Roe v. Wade and Freedom of Choice (1994).
National Abortion Federation. ‘History of Abortion’, www.prochoice.org/about_abortion/history_abortion.html.
Pew Research. ‘Public Opinion on Abortion and Roe v. Wade’ (22 January 2013), www.pewforum.org/2013/01/22/public-opinion-on-abortion-and-roe-v-wade/.
Pollitt, Katha. ‘Abortion in American History’, The Atlantic Monthly (May 1997), www.theatlantic.com/past/docs/issues/97may/abortion.htm
Prager, Joshua. ‘The Accidental Activist’, Vanity Fair (February 2013), www.vanityfair.com/culture/2013/02/norma-mccorvey-roe-v-wade-abortion.
Reagan, Leslie J. When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 (1997).
Roe v. Wade (1973), 410 U.S. 113.
Saxon, Wolfgang. ‘Henry Wade, Prosecutor in National Spotlight, Dies at 86’, New York Times (March 2, 2001).
Thornborough v. American College of Obstetricians (1986), 476 US 747.
Webster v. Reproductive Health Services (1989), 492 US 490.

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