Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P43 ppsx

Union University and received his LL.B. degree from Howard University School of Law in 1939. He joined the Howard Law School faculty immediately after graduation and served as a professor of law until 1948. Robinson was admitted to the Virginia bar in 1943. During his years at Howard, Robinson worked with the dean of the law school, CHARLES HAMILTON HOUSTON , and other professors and Howard Law School graduates, in a concerted effort to end racial SEGREGATION in public schools. As counsel to the Virginia branch of the NAACP LEGAL DEFENSE AND EDUCATIONAL FUND from 1948 to 1950, Robinson pursued legal action against Virginia’s segregated education system. He continued this legal attack on the SEPARATE-BUT-EQUAL doctrine as the NAACP Southeast Regional counsel in 1951, a position he retained until 1960. The NAACP’s litigation ultimately led to the momentous decision of BROWN V. BOARD OF EDUCATION 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), which struck down the separate-but-equal doctrine and struck down state-mandated segregation of public schools. Robinson established a private law practice in 1955 but returned to Howard Law School in 1960 to become its dean. During this period, he also served as a member of the U.S. COMMISSION ON CIVIL RIGHTS . In 1963, Robinson became vice president and general counsel of Consolidated Bank and Trust Company, where he served until he was appointed to the U.S. District Court for the District of Columbia in 1964. In November 1966 President LYNDON JOHNSON appointed Robinson to the U.S. Court of Appeals for the District of Columbia Circuit. He was the first African-American to be appointed to that court. Robinson served as chief judge of the court from May 1981 to July 1986. He took senior status on September 1, 1989, and retired in 1992. Robinson died in Richmond, Virginia, on October 11, 1998. RESOURCES “Biographies: The United States Court of Appeals for the District of Columbia Circuit.” 1996. George Washington Law Review 64. Kluger, Richard. 2004. Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality. New York: Vintage. Motley, Constance Baker. 1999. Equal Justice under Law: An Autobiography. New York: Farrar, Straus and Giroux. Schwartz, Bernard. 1986. Swann’s Way: The School Busing Case and the Supreme Court. New York: Oxford Univ. Press. CROSS REFERENCE School Desegregation. ROBINSON V. CALIFORNIA In Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), the U.S. Supreme Court made two landmark rulings on the scope and meaning of the CRUEL AND UNUSUAL PUNISHMENTS CLAUSE of the EIGHTH AMENDMENT to the U.S. Constitution. The EIGHTH AMENDMENT guarantees that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” At issue in Robinson v. California was the constitutionality of a California CRIMINAL LAW that made being a narcotics addict a crime. To reach this issue, Spottswood William Robinson III 1916–1998 ❖ 1916 Born, Richmond, Va. 1914–18 World War I 1939–45 World War II ▼▼ ▼▼ 1950 1925 1975 2000 1950–53 Korean War 1961–73 Vietnam War ◆ ◆ ◆ ❖ 1939 Earned LL.B. from Howard University Law School 1939–48 Taught at Howard Law School 1948–50 Served as counsel to Va. branch of NAACP Legal Defense and Educational Fund 1951–60 Served as NAACP Southeast Regional counsel 1954 Supreme Court outlawed "separate but equal" education in Brown v. Board of Education 1960–63 Served as dean of Howard Law School 1964–66 Sat on the U.S. District Court for the District of Columbia 1966–89 Sat on the U.S. Court of Appeals for the District of Columbia 1981–86 Served as chief judge of the court 1989 Took senior status 1998 Died, Richmond, Va. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 408 ROBINSON V. CALIFORNIA however, the Court first broke new ground and ruled that the Eighth Amendment applied to the states through the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT. Lawrence Robinson was stopped on a city street by a Los Angeles police officer, who had noticed that Robinson’s arms were scabbed, discolored, and filled with needle marks. The officer arrested Robinson, who was sent to the Los Angeles central jail. The next day, his arms were again examined, this time by a member of the narcotics division of the police department. Based on his examination, the officer concluded the marks and discoloration were the result of the injection of unsterilized hypodermic needles into Robinson ’s arms. Both police officers claimed that Robinson admitted he had occa- sionally used narcotics. Robinson was charged with violating a California criminal law that made it illegal to “be addicted to the use of narcotics.” At his trial, Robinson denied that he had told police he used narcotics and asserted that the marks on his arm were the result of an allergic condition contracted while he was in military service. Two witnesses corroborated his testimony. The jury was instructed that it could convict Robinson if it believed he was addicted to the use of narcotics. Unlike most criminal laws, which require that a person be convicted for a criminal act, in this case Robinson could be convicted for his condition, or status, as a drug addict. The jury convicted Robinson of the misdemeanor, and the California appellate courts upheld the conviction. The U.S. Supreme Court accepted Robinson’s appeal and reversed the conviction. Justice POTTER STEWART, in his majority opinion, had to cross a major constitutional barrier before ruling on the Eighth Ame ndment issue. Until the 1960s, the Court had abided by precedent that held that the rights guaranteed to criminal defendants by the Fourth, Fifth, Sixth, and Eighth Amendments applied only to the federal courts. However, in Robinson, the Court ruled that the Eight h Amendment applied to the states through the Due Process Clause of the Fourteenth Amendment. Having established the right of the Court to examine state criminal law for Eighth Amend- ment violations, Stewart revie wed the California statute. He acknowledged that the state had a right to regulate the sale and use of illegal narcotics, establish drug treatment programs, and seek ways of improving the economic and social conditions under which drug addiction flourishes. But he also observed that the state could choose among many options in addres- sing the problem without violating a person’s constitutional rights. The major defect of the law was making the “status” of narcotic addiction a criminal offense, for which the offender might be prosecuted at any time before reforming his ways. Stewart was troubled that “a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics withi n the State, and whether or not he has been guilty of any antisocial behavior there.” Establishing the criminal status of “narcotics addict” violated the ban on CRUEL AND UNUSUAL PUNISHMENT because a person addicted to drugs suffers from an illness. Stewart pointed out that government no longer makes it a criminal offense to be a person suffering from a contagious physical disease or mental illness. Those persons may legally be subject to compulsory treatment, such as quarantine or confinement, but they are not charged with a crime. An attempt by a state to do so, “in the light of contemporary human knowledge,” would be a violation of the Eighth and Fourteenth Amendments. The Court noted that even California admit- ted narcotic addiction was an illness that may be contracted innocently or involuntarily. In light of this admission, Stewart held that a “state law which imprisons a person thus afflicted as a criminal” inflicts cruel and unusual punishment in violation of the Fourteenth Amendment. Though Robinson would have been confined for only 90 days, “[e]ven one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” In dissenting opinions, Justices TOM CLARK and BYRON WHITE argued that the Court had unfairly disturbed a “comprehensive and en- lightened program for the control of narcotism based on the overriding policy of prevention and cure.” Clark stated that the criminal statute was intended for persons still in the early stages of addiction who retained self-control and required short-term confinement and PAROLE with frequent drug tests. Though the law appeared penal, its provisions were very similar to those for civil commitment and treatment of addicts “who have lost the power of self-control.” GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ROBINSON V. CALIFORNIA 409 The civil and criminal laws shared the common purpose of rehabilitating narcotic addicts and preventing continued addiction. In light of this common purpose, opined Clark, that one law “might be labeled ‘criminal’ seems irrelevant.” It was within the power of California to design its course of treatment. The elimination of drug addiction as a STATUS OFFENSE meant that the criminal justice system could only address specific actions of traffickers and users. Possession of narcotics is a crime, but the physical condition of addiction cannot be. The state may address addiction through civil commitment for drug treatment. Despite the Court’s holding that narcotics addiction is an illness, it later proved unwilling to draw the same conclusion concerning alcohol abuse. In Powell v. Texas, 392 U.S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968), the Court, by a 5–4 vote, upheld a Texas law that made it a crime to be publicly intoxicated. The Court reasoned that the Texas law was constitutional because it did not make the status of being an alcoholic an offense but prohibited the specific offense of public intoxication. Rather than following the Robinson approach, the Court said that knowledge about alcoholism and the record in the case were inadequate to make the punishment of alcohol-related offenses cruel and unusual. Justice ABE FORTAS, in a dissenting opinion, argued that the Robinson rule should be followed and that “criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.” FURTHER READINGS Boaz, David, ed. 1990. The Crisis in Drug Prohibition. Washington, D.C.: Cato Institute. Bodenhamer, David J., and James W. Ely, Jr. 2008. The Bill of Rights in Modern America. Bloomington: Indiana University Press. Smith, Juliette. 1996. “Arresting the Homeless for Sleeping in Public: A Paradigm for Expanding the Robinson Doctrine.” Columbia Journal of Law and Social Problems 29 (winter). Terkel, Susan N. 1990. Should Drugs Be Legalized? Danbury, Conn.: Scholastic Library. CROSS REFERENCES Drugs and Narcotics; Due Process of Law; Incorporation Doctrine. ROCHIN V. CALIFORNIA In Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952), the U.S. Supreme Court ruled that it was unconstitutional for police to pump a criminal suspect’s stomach and use the resulting evidence at trial. The Court held that such conduct was “shocking to the conscience” and that the evidenc e must be suppressed under the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT. On the morning of July 1, 1949, three Los Angeles County deputy sheriffs went to the home of Antonio Rochin. The police did not have a SEARCH WARRANT but had some informa- tion that Rochin was selling narcotics. Finding the outside door open, they entered the dwelling. They went to the second floor, where they forced open the door to Rochin’s room. They found Rochin sitting partly dressed on the side of the bed, where his wife was lying. One of the deputies noticed two capsules on a night- stand and asked, “Whose stuff is this?” Rochin grabbed the capsules and put them in his mouth. The three deputies then wrestled with Rochin and sought to open his mouth so they could extract the pills. When this failed, the deputies handcuffed Rochin and took him to a hospital, where at their direction a doctor forced an emetic solution through a tube into Rochin’s stomach. The solution induced vomit- ing, and in the vomited matter the deputies found two morphine capsules. Rochin was tried and convicted of narcotics possession. The conviction was based solely on the morphine capsules, though Rochin unsuc- cessfully challenged their admission. After the California appellate courts upheld the convic- tion, Rochin filed an appeal with the U.S. Supreme Court. At the time of Rochin v. California, the U.S. Supreme Court rarely intruded into the police procedures of the states. Not until the 1960s would the Court apply the BILL OF RIGHTS amendments dealing with CRIMINAL PROCEDURE to the states (despite the consistent effor ts of Justices HUGO L. BLACK and WILLIAM O. DOUGLAS to incorporate these rights through the Due Process Clause of the FOURTEENTH AMENDMENT). Because of this situation, Rochin could not rely on the FOURTH AMENDMENT, which protects the people against unreasonable SEARCHES AND SEIZURES , or the FIFTH AMENDMENT, which protects a person from being a witness against himself. At that time, the Fourth and Fifth Amendments applied only against the federal government. If they had applied to the states, the searches GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 410 ROCHIN V. CALIFORNIA of Rochin’s home and stomach would have been unconstitutional, and the evidence sup- pressed under the Fourth Amendment ’s EXCLU- SIONARY RULE . A majority of the Court in Rochin refused to apply the Fifth Amendment to the states despite the arguments of Justices Black and Douglas in their concurring opinions. Instead, the Court relied solely on the Fourteenth Amendment’s Due Process Clause as the basis for striking down the search. Justice FELIX FRANKFURTER wrote for the majority that the Due Process Clause contains a general standard of conduct by which states must abide. A state cannot offend “those canons of decency and fairness, which express the notions of justice of English-speaking peoples.” DUE PROCESS OF LAW requires the state to observe those principles that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” The police conduct here did more than offend “private sentimentalism about combat- ing crime too energetically.” This conduct “shock[ed] the conscience,” offending even those with hardened sensibilities. The treatment of Rochin was “too close to the rack and screw to permit of constitutional differentiation.” Frankfurter defended the SHOCK THE CON- SCIENCE TEST as a respon sible means of forcing states in their criminal prosecutions to “respect certain decencies of civilized conduct.” Due process of law cannot be precisely defined, as it is a “historic and generative principle.” It was clear to the Court that a coercive search of Rochin’s stomach contents offended “the com- munity’s sense of fair play and decency” as much as a coerced verbal confession would. At the time of Rochin, coerced confessions were inadmissible in state courts. The Supreme Court, in Adamson v. California, 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903 (1947), had applied the Due Process Clause to reach this result. It would have been unfair to admit the morphine capsules obtained by physical abuse while suppressing a confession obtained by physical abuse. Characterizing the police action as “brutal conduct,” Frankfurter concluded that allowing admission of the morphine capsules would discredit the law and “brutalize the temper of a society.” Justice Black, in his concurring opinion, agreed that the police conduct was unconstitu- tional but argued that the Court did not have to resort to its vague and subjective shock the conscience test. Black, noting the precise language of the Fifth Amendment, believed the Court could easily ground its authority in that amendment by incorporating it into the Fourteenth Amendment. This was preferable to the “nebulous standards” articulated by Frankfurter. Justice Douglas, in his concurring opinion, attacked the shock the conscience test for its conclusion that California’s state law that admitted evidence such as Rochin’s violated “decencies of civilized conduct.” He pointed out that only three states would probably exclude the Rochin evidence. The remaining states were served by “responsible courts with judges as sensitive as we are to the proper standards for law administration.” He also noted that even the Fifth Amen dment’s provision ag ainst SELF- INCRIMINATION was not recognized by “all civi- lized legal procedures.” The fact that the Framers required the Fifth Amendment to be used in federal courts made it “impossible for me to say it is not a requirement of due process for a trial in the state courthouse.” Whether Rochin retains any legal relevance has been much debated over the years. The Supreme Court incorporated the Fifth Amendment PRIVILEGE AGAINST SELF-INCRIMINATION into the Fourteen th Amendment in 1964 (Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653) and the Fourth Amendment’s exclusionary rule in 1961 ( MAPP V. OHIO, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081). As a result, state and federal criminal constitutional rights are identical. Some commentators believe Rochin is important because it stands for the proposition that the Due Process Clause provides a protec- tion for citizens separate from, and independent of, the Bill of Rights provisions like the Fourth Amendment that have now been applied to the states. The case also shows that even if the Supreme Court were to abandon the Fourth Amendment exclusionary rule, the Due Process Clause will sometimes require exclusion of evidence in cases where police conduct is egregious enough to shock the conscience. Other commentators and jud ges have expressed misgivings about the shock the conscience test. In their view, the test is too vague and gives federal judges too much power over state law enforcement. These critics argue GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ROCHIN V. CALIFORNIA 411 that no clear lin e separates conduct that is merely offensive from conduct that shocks the conscience. FURTHER READINGS Del Carmen, Rolando R. 2001. Criminal Procedure: Search and Seizure. Belmont, Calif.: Wadsworth. Marcus, Paul, and Jack Zimmerman. 2009. Criminal Procedure in Practice. 3d ed. Louisville, Colo.: National Institute for Trial Advocacy. McWhirter, Darien A. 1994. Search, Seizure, and Privacy. Westport, Conn.: Oryx. Miller, Randall K. 1997. “The Limits of U.S. International Law Enforcement after Verdugo-Urquidez: Resurrect- ing Rochin.” University of Pittsburgh Law Review 58 (summer). CROSS REFERENCES Criminal Law; Criminal Procedure; Due Process of Law; Incorporation Doctrine; Search and Seizure; Shock-the- Conscience Test. v RODNEY, CAESAR AUGUSTUS Caesar Augustus Rodney served as U.S. attorney general from 1807 to 1811. His term as attorney general was unusual in that he served in both the Jefferson and Madison administrations. A member of a prominent Delaware family, Rodney held many positions in state govern- ment as well as in the federal government. Rodney was born on January 4, 1772, in Dover, Delaware. His father was Thomas Rodney, an attorney, politician, and member of the Delaware Supreme Court. Rodney was named after his uncle, who was a delegate to the CONTINENTAL CONGRESS, president (governor) of Delaware, and a key signer of the DECLARATION OF INDEPENDENCE . Rodney graduated from the University of Pennsylvania in 1789. He then studied law under Joseph B. McKean in Philadelphia and was admi tted to the Delaware bar in 1793. He practiced law in Wilmington and New Castle for the next few years. Rodney, like his father and uncle, was attracted to politics. He was elected to the Delaware House of Representatives in 1796. He served in the U.S. House of Representatives from 1803 to 1805. He was a staunch supporter of President THOMAS JEFFERSON and sided with the Republicans in their political battles with the FEDERALIST PARTY. Rodney served as one of the House managers in the IMPEACHMENT trials of Judge John J. Pickering of the U.S. District Court for New Hampshire and Associate Justice SAMUEL CHASE, the on ly Supreme Court justice ever tried on a bill of impeachment. Both judges were Federalists and the impeach- ment trials were politically motivated. Picker- ing was found guilty, but Chase was acqu itted C. A. Rodney. LIBRARY OF CONGRESS. Caesar Augustus Rodney 1772–1824 ▼▼ ▼▼ 17501750 18251825 18001800 17751775 ◆◆◆ ◆ ◆◆◆ ❖ ❖ 1775–83 American Revolution 1772 Born, Dover, Del. 1789 Graduated from University of Pa. 1793 Admitted to Del. bar 1796 Elected to Del. House 1804 U.S. House voted to impeach Supreme Court Justice Samuel Chase 1805 U.S. Senate acquitted Chase 1803–05 Served in U.S. House 1822 Elected to U.S. Senate 1823 Appointed U.S. minister to Argentine Republic 1824 Died, Buenos Aires, Argentina 1820 Elected to U.S. House 1807–11 Served as U.S. attorney general ◆ 1812–14 War of 1812 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 412 RODNEY, CAESAR AUGUSTUS when moderate Republicans abandoned their party on the issue of political rather than criminal impeachments. Jefferson appointed Rodney attorney general on January 20, 1807, midway through his second term. The last two years of the Jefferson administration were relatively tranquil in the domestic sphere. President JAMES MADISON,who was a close friend and political ally of Jefferson, took office in 1809 and asked Rodney to continue in his post. Rodney resigned his position on December 5, 1811. During the WAR OF 1812, Rodney com- manded a company of volunteers in defense of the city of Baltimore. He returned to the U.S. House of Representatives in 1821 and was elected to the U.S. Senate in 1822. He resigned from the Senate in 1823 to accept an appoint- ment as U.S. minister to the Argentine Republic. He died in Buenos Aires on June 10, 1824. FURTHER READING U.S. Department of Justice. 1985. Attorneys General of the United States, 1789–1985. Washington, D.C.: U.S. Government Printing Office. ROE A fictitious surname used for an unknown or anonymous person or for a hypothetical person in an illustration. A lawsuit is generally named for the persons who are parties to it. When the nam e of a party is unknown, the court clerk may direct that the person be called a fictitious name in the papers of the lawsuit. This also may be done to hide the identity of a person who would needlessly suffer if his name were known—for example, the name of a parent who is giving up a child for ADOPTION or the nam e of a juvenile charged with a crime. Frequently used fictitious party names include Richard Roe, Mary Roe, and JOHN DOE. ROE V. WADE Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), was a landmark decision by the U.S. Supreme Court that declared a pregnant woman is entitled to have an ABORTION until the end of the first trimester of pregnancy without any interference by the state. In a 7–2 decision on January 22, 1973, the Supreme Court struc k down an 1857 Texas statute that made ABORTION illegal except where the life of the mother was in danger. The Court’s opinion, as written by Justice HARRY A. BLACKMUN, set forth guidelines for the drafting of future state legislation on the issue. In a long and detailed opinion, the Court specified the points during a w oman’s pregnancy when the interests of the state in the health of the mother and of the fetus emerge. Roe established the parameters of the abortion debate for decades to come. The case involved an unmarried pregnant woman at the time identified only as Jane Roe to maintain her anonymity but who has since publicly identified herself as Norma McCorvey. McCorvey, a resid ent of Texas, wanted to have an abortion, but the existing state law prevented her from doing so. She filed a lawsuit in federal district court on behalf of herself and all other pregnant women. The suit sought to have the Texas abortion law declared unconstitutional as an invasion of her right to privacy as guaranteed by the First, Fourth, Fifth, Ninth, and Four- teenth Amendments. She also sought to have an INJUNCTION, or court order, issued against the statute’s enforcement so that she might go forward with the abortion. A physician, James Hubert Hallford, who was being prosecuted under the statute for two abortions he had performed, also filed suit aga inst the law, as did a childless couple, the Does (Mary Doe and JOHN Norma McCorvey, known as Jane Roe in the abortion case of Roe v. Wade, withdrew her support from pro-choice groups and is now a pro-life activist. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ROE V. WADE 413 Norma McCorvey: The Real Jane Roe I B n a 19 84 television interview, Norma McCorvey revealed that she is Jane R oe, the plaintiff in the most famous abortion case in U.S. history, Roe v. Wade. In 1994 she published an autobiography, IAm Roe: My Life, Roe v. Wade, and Freedom of Choice, that puts a human face on the story of Roe. In her book, McCorvey cand idly recounts th e difficulties of her life, including growing up with an abusive mother, spending time in reform school as an adolescent, struggling with addictions to drugs and alcohol, and coming out as a lesbian. McCorvey was born Norma Leah Nelson on September 22, 1947, in the b ayou country of Lettesworth, Louisiana. Half Cajun and part Native American, she eventually moved with her poor, working-class family to Dallas, where she has since lived most of her life. After an unsuccessful marriage to an abusive husband, she divorced and gave up a daughter to relatives. Wrestling with drug and alcohol addictions amid the counterculture swirl of the 1960s, she later gave up two more children to adoption, inclu ding the child she c arried when she brought Roe to court. In September 1969, while working as a carnival freak show barker, McCorvey learned that she was pregnant for the third time and r eturned to D allas. Out of work, severely depressed, with no money, she decided to seek an abortion. After being told that abortion was legal in cases of rape or incest, friends advised her to lie and say t hat she had been raped. However, b ecause no police report of the fictitious rape existed, the ruse did not work. She then went to an illegal abortion clinic but found that it had been closed by the police; all that was left was an abandoned building where “ dirty instru- ments were scattered around the room, and there was dried blood on the floor.” Eventually, McCorvey was referred to Sarah Weddington and Linda Coffee, young attorneys who were looking for a plaintiff to challenge the Texas abortion la w. Weddington herself had been forced to go to Mexico in order to obtain an abortion during the 1960s. McCorvey agreed to p articipate in a lawsuit against Henry Wade, the Dallas district attorney. Although she still hoped to finish the suit in time to have an abortion, McCorvey told her attorneys, “Let’s do it for other women.” McCorvey chose to remain anonymous for several reasons: she feared publicity would h urt her five-year-old daughter, her parents w ere against abortion, and she had lied about being raped. She did not participate in court hearings in order to maintain her anonymity. On March 3, 1970, when Roe was filed in court, McCorvey was six months pregnant. In June, at 23 years of age, she gave birth, and her child went up for adoption. On January 22, 1973, over two years too late to alter the course of her pregnancy, McCorvey learned that she had won her case: The Supreme Court had ruled that the Texas abortion law was unconstitutional. In 1989 McCorvey de cided to ally herself publicly with the abortion rights movement. Shortly beforesheparticipatedinalargepro-choicerallyin Washington, D.C., someone fired gunshots at h er house and car, in one of many incidents of harassment she has had to endure since making her identity known. Frightened but undaunted, she joined the April 9 rally and m ade a speech on Capitol Hill before hundreds of thousands of people. McCorvey worked for a time at a family planning clinic and traveled around the United States giving speeches promoting the reprod uctive rights of women. In August 1995, McCorvey announced that she had switched sides on the abortion debate. “I’m pro-life,” McCorvey stated. “I think I have always been pro-life, I just didn’tknowit.” McCorvey’s reversal was attributed to her new friendship with the Reverend Philip (“Flip”) Benham, national director of th e militan t antiabortion group Operation Rescue. The group had moved its national head- quarters into an office next to the clinic where McCorvey worked. After being baptized by Benham, McCorvey declared that she would work on behalf of Operation Rescue. FURTHER READING McCorvey, Norma, with Andy Meisler. 1994. I Am Roe: My Life, Roe v. Wade, and Freedom of Choice. New York: HarperCollins. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 414 ROE V. WADE DOE). A three-judge district court combined the cases of McCorvey and Hallford and dismissed the suit brought by the Does on the grounds that neither of them had violated the law and Mary Doe was not pregnant. The district court agreed with McCorvey that the law was unconstitutionally vague and violated her right to privacy under the Ninth Amendment—which allows for the existence of rights, like that of privacy, not explicitly named in the Constitution’s Bill of Rights—and the FOURTEENTH AMENDMENT. It refused, however to grant the injunction allowing her to go ahead with the abortion. McCorvey appealed the denial of the injunction to the U.S. Supreme Court. The Supreme Court agreed to hear the case along with another, Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), relating to a 1968 Georgia abortion statute. The Court dismissed Hallford’s case because of the pending prosecutions against him. Hallford made no ALLEGATION of any substantial and immediate threat to any federal protected right that could not be asserted in his defense against the state prosec ution. Nor did he alleg e harassment or bad-faith prosecution by the state. Hallford’s case fell clearly within the ambit of the rule announced in prior Supreme Court cases that a defendant in a pen ding state criminal case cannot affirmatively challenge in federal court the statutes under which the state is prosecuting him or her (Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 [1971]; Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 [1971]; Boyle v. Landry,401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 [1971]). Justices HUGO BLACK and JOHN M. HARLAN submitted their resignations in September 1971, shortly before the beginning of the term in which the Supreme Court was scheduled to hear the arguments on the abortion cases. The case was first heard in Decembe r 1971 by seven justices, though President RICHARD NIXON had previously announced the nominations of two new justices, LEWIS F. POWELL JR. and WILLIAM H. REHNQUIST. Powell was confirmed as an associate justice by the Senate on December 7, 1971, and Rehnquist was confirmed on December 15. Both were sworn in as associate justices on January 7, 1971, about a month after the Court had originally heard the arguments in Roe. Chief Justice WARREN E. BURGER chose Justice Blackmun—who had served for many years as legal counsel to the Mayo Clinic, in Rochester, Minnesota—to write the Court’s original opin- ion, which Blackmun completed in May 1972. Blackmun’s opinion would have struck down the Texas law on the grounds of vagueness, and the result of the opinion would have been that the majority of abortion statutes in the United States would have been unconstitutionally vague as well, though the Court would not have considered whether the right to an abortion was a FUNDAMENTAL RIGHT. However, Blackmun also recommended that the Court reconsider the case with all nine justices. Instead of issuing Blackmun’s original opin- ion, the Court decided to rehear the case during the following term. The Court reheard the case beginning October 11, 1972. After the rehearing, the Court, with Blackmun again writing for the majority, found the Texas abortion law to be unconstitutional. It declared that such laws “violate the DUE PROCESS CLAUSE, which protects against STATE ACTION the right to privacy, including [a] woman’s qualified right to termi- nate her pregnancy.” Rehnquist, a politically conservative justice, wrote a dissenting opinion. In the majority opinion, the Court ruled that the right to terminate a pregnancy is part of a woman’s right to privacy. At the same time, however, it declared that “[t]his right is not unqualified and must be considered against important state interests in regulation. ” The state, the Court argued, “has legitimate interests in protecting both the pregnant woman ’s health and the potentiality of human life,” interests that change in importance as the pregnancy progresses. In the first trimester, the Court said, the state has no interest in regulating the right of a woman to obtain an abortion. In making this decision, the Court pointed to evidence showing that the health of the mother is not endangered by an abortion during the first 12 weeks of pregnancy. According to that evidence, women are less likely to die from complications of an abortion conducted in the first trimester than from carrying their pregnancy to term. The Court also found that the state may require that all abortions be performed only by licensed physicians under medically safe conditions. The Court found that the state’s interest in regulating abortion and protecting a pregnant woman’s health emerges in the second trimes- ter. “[I]n promoting its interest in the health of the mother,” the Court declared, “the state GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ROE V. WADE 415 may regulate the abortion procedure in ways that are reasonably related to maternal health.” It may, for example, impose requirements regarding the qualifications and licensing of those performing abortions; it may also regulate where abortions can be performed. Beyond these rules, the woman, in consultation with her physician, is free to decide whether to end her pregnancy. In the third trimester, the interest of the state in “the potentiality of human life”—that is, the life of the fetus before birth—makes it possible to regulate and even prohibit abortions except when necessary to save the life or health of the mother. By this period, the fetus is determined to be viable—that is, capable of living outside the womb—and therefore entitled to protection by the state. The Court did not accept arguments that the fetus be regarded as a person within the meaning of the Due Process Clause of the Fourteenth Amendment, which declares that no state shall “deprive any person of life, liberty, or property, without due process of law” (§ 1). “There is no medical or scientific proof that life is present from conception,” wrote the Court. [W]e need not resolve the difficult question of when life begins, when those trained in the respective fields of medicine, philosophy and theology are unable to arrive at any consen- sus. The judiciary at this point in the development of man’s knowledge is not in a position to speculate as to the answer. As author of the Court’s opinion, Justice Blackmun made it clear that abort ion was an extraordinarily difficult issue: We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous oppos- ing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem. Our task, of course, is to resolve the issue by constitutional mea- surement free of emotion and predilection. Although the opinion went into the “medi- cal and medical-legal” history of the issue and quoted medical authorities frequently, the Court chose to decide the case on constitutional rather than medical or philosophical grounds. In this case, the crucial constitutional consider- ation was the right to privacy, which some would arg ue is as old as the Constitution. The most important precedent for the Roe decision on this issue was the 1965 Supreme Court case GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510, which clearly set forth a constitutional right to privacy—in this instance, ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. SOURCE: Centers for Disease Control and Prevention, Abortion Surveillance—United States, 2005. U.S. Abortion Patients, by Age and Marital Status, in 2005 a 40 and older 3.2% 14 and under 0.6% 25–29 23.4% 30–34 14.5% a Numbers may not add up to 100 due to rounding. 15–19 16.4% 20–24 32.6% 35–39 8.7% Age Group Unmarried 81.0% Married or separated 19.0% Marital Status GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 416 ROE V. WADE a married couple’s right to privacy when deciding whether or not to use contraceptives. Roe was in fact part of a gradual expansion of the right to privacy during the 1960s and 1970s, to include not only a right to freedom from physical SEARCHES AND SEIZURES, for example, but also a right to make individual decisions free of coercion, whether physical or psychological, especially in matters regarding the family and REPRODUCTION. In his DISSENT in Roe, Justice Rehnquist differed with the majority on a number of points. For one thing, McCorvey had given birth in 1970 and had given her child up for ADOPTION. He argued that because McCorvey was no longer in the first term of her pregnancy, indeed was no longer pregnant, when her case came before the Supreme Court, the case had become hypothetical rather than actual and therefore outside the jurisdiction of the Court. Rehnquist also argued that the regulation of abortion should be left to the states and that the right of privacy had nothing to do with the case. “I have difficulty in concluding, as the Court does, that the right of ‘privacy’ is involved in this case,” he wrote. “The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example , partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.” Moreover, in Rehnquist’s view, the Texas abortion law met the test of having “a rational relation to a valid state objective.” Rehnquist’s fellow dissenter in Roe, Justice BYRON R. WHITE, called the decisions in Doe and Roe “an example of raw judicial power” and “an improvident and extravagant exercise of the power of judicial review” (Doe, 410 U.S. 179 at 221, 93 S. Ct. 762). The Roe decision has largely been perceived as a victory for the abortion reform and women’s rights movements and a defeat for anti-abortion forces, but in many ways it was a compromise between the two sides. Where as antiabortion forces were unhappy with the establishment of a right to abortion for women in the first trimester of pregnancy, pro-abortion groups were displeased with the limits on abortion allowed in the last two trimesters of pregnancy. The Court also compromised in its decision as to when life begins and who is to be defined as a person with full rights under the Constitution. It did not agree with the pro- abortion movement, which declared that life does not begin until birth, or with the anti- abortion movement, which maintained that life begins at conception. Instead, it chose to define the rights of the fetus as emerging when it reaches the stage of viability, when it can survive independently outside the womb. In making this decision, some have argued, the Court made personhood subject to change, particu- larly as science has moved the time of viability further back. Feminists and women’s rights advocates saw Roe as a vindication of women’s reproductive rights and a step toward greater equality between the sexes. Such equality, they argued, can happen only when women have the ability to control reproduction. Others, opposed to the decision in Roe, believed that the Supreme Court had overstepped its bounds by effectively making new social policy, a task they felt was better left to elected members of state legisla- tures. Still others felt that the Court had violated the sanctity of human life by permitting abortion. In any case, Roe has been a far- reaching decision, affecting many sphe res of U.S. life, including medicine, religion, and the family. In the decades following Roe, anti-abortion groups mounted continual campaigns to repeal the decision. Nevertheless, even when commen- tators have expected the Court to OVERRULE Roe, the Court has upheld Roe’s basic principles. The most notable case decided subsequent to Roe was Planned Parenthood of Southeastern Penn- sylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), a 5–4 decision that supported the basic provisions of Roe. FURTHER READINGS Baker, Hunter. 2001. “Storming the Gates of a Massive Cultural Investment: Reconsidering Roe in Light of Its Flawed Foundation and Undesirable Consequences.” Regent University Law Review 14. Butler, J. Douglas, and David F. Walbert, eds. 1992. Abortion, Medicine, and the Law. 4th ed. New York: Facts on File. Faux, Marian. 2000. Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal. New York: Cooper Square Press. Gonzalez, Jose L. 2001. “The Legitimization of Fetal Tissue Transplantation Research under Roe v. Wade.” Creighton Law Review 34. Lucas, Ray. 2003. “Forgotten Supreme Court Abortion Cases: Drs. Hawker and Herwitz in the Dock and Defrocked.” Pepperdine Law Review. 641. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ROE V. WADE 417 . Columbia 1966 89 Sat on the U.S. Court of Appeals for the District of Columbia 1 981 86 Served as chief judge of the court 1 989 Took senior status 19 98 Died, Richmond, Va. GALE ENCYCLOPEDIA OF AMERICAN LAW, . to Argentine Republic 182 4 Died, Buenos Aires, Argentina 182 0 Elected to U.S. House 180 7–11 Served as U.S. attorney general ◆ 181 2–14 War of 181 2 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 412. CONGRESS. Caesar Augustus Rodney 1772– 182 4 ▼▼ ▼▼ 17501750 182 5 182 5 180 0 180 0 17751775 ◆◆◆ ◆ ◆◆◆ ❖ ❖ 1775 83 American Revolution 1772 Born, Dover, Del. 1 789 Graduated from University of Pa. 1793 Admitted to Del.