Supreme Court banned the Lord’s PRAYER and Bible reading in public schools in Abington School District v.. Reacting to these and other developments, and inspired by the successes of theC
Trang 1ABIDING CONVICTION
A definite conviction of guilt derived from a thorough examination of the whole case Used commonly to instruct juries on the frame of mind required for guilt proved beyond a reasonable doubt A settled or fixed conviction
ABINGTON SCHOOL DISTRICT V
SCHEMPP
In 1963 the U.S Supreme Court banned the Lord’s PRAYER and Bible reading in public schools in Abington School District v Schempp,
374 U.S 203, 83 S Ct 1560, 10 L Ed 2d 844
The decision came one year after the Court had struck down, inENGEL V.VITALE, a state-authored prayer that was recited by public school students each morning (370 U.S 421, 82 S
Ct 1261, 8 L Ed 2d 601 [1962]) Engel had opened the floodgates; Schempp ensured that a steady flow of anti-school prayer rulings would continue into the future Schempp was in many ways a repeat of Engel: the religious practices with which it was concerned were nominally different, but the logic used to find them unconstitutional was the same This time, the majority went one step further, issuing the first concrete test for determining violations of the First Amendment’s Establishment Clause
The SchemppRULINGinvolved two cases: its namesake and Murray v Curlett, 228 Md 239,
179 A.2d 698 (Md 1962) The Schempp case concerned a 1949 Pennsylvania law that forced public schools to start each day with
a reading of ten Bible verses (24 Pa Stat § 15-1516) The law did not specify which version
of the Bible should be used—for instance, it could be the Catholic Douay text or the Jewish version of the Old Testament But local school officials only bought the Protestant King James Version Teachers ordered students
to rise and recite the verses reverently and in unison, or, as in the Abington School District, students in a BROADCASTINGclass read the verses over a public-address system Teachers could be fired for refusing to participate, and pupils occasionally were segregated from others if they did not join in the daily reading
The Pennsylvania law was challenged by the Schempps, whose three children also attended Unitarian Sunday school In 1958 a special three-judge federal court heard the case The father, Edward L Schempp, testified that he objected to parts of the Bible Leviticus, in
particular, upset him, “where they mention all sorts of blood sacrifices, uncleanness and leprosy I do not want my children believing that God is a lesser person than a human father.” Although hardly the first lawsuit
on this issue—Bible reading cases in state courts had yielded contradictory rulings since 1910— Schempp was the first to reach a federal court The three-judge panel ruled that the Bible reading statute violated the First Amendment’s Establishment Clause (“Congress shall make no law respecting an establishment ofRELIGION ”) and interfered with its Free Exercise Clause (“or prohibiting the free exercise[of religion]”) Local and state officials immediately appealed to the U.S Supreme Court
The Supreme Court agreed to hear Schempp along with Murray as a consolidated case Madalyn Murray O’Hair and her 14-year-old son, William Murray, were atheists They had challenged a 1905 Baltimore school board rule requiring each school day to start with Bible reading or the Lord’s Prayer (“Our father, who art in heaven ”), or both An ATTORNEY
herself, Murray brought the suit only after protesting to officials, stirring up media atten-tion, and encouraging her son to PROTEST in a controversial strike that kept him out of school for 18 days The suit said the rule transgressed the Establishment Clause by requiring compul-sory religious education and violated the Free Exercise Clause by discriminating against athe-ists The Murrays originally lost in state courts and onAPPEAL
When the U.S Supreme Court heard oral arguments for the consolidated cases on February 27 and 28, the nation was still reacting
to the previous year’s ruling in Engel An uproar over the Engel decision had produced 150 proposals in Congress to amend the CONSTITU-TION Schempp gave advocates of school prayer a chance to argue that the Court had been wrong
in Engel, and this they did Attorneys represent-ing Pennsylvania and Baltimore officials denied that Bible reading or prayer had a religious nature, and claimed that it therefore did not violate the Establishment Clause—which, in any event, they maintained, was only designed to prevent an official state religion Their true purpose, argued attorneys, was to keep order and provide a proper moral climate for students The Court stood by the Engel decision In
an 8–1 decision, it ruled that both Bible reading
8 ABIDING CONVICTION
Trang 2and the Lord’s Prayer violated the
Establish-ment Clause Justice Tom C Clark’s majority
opinion differed in a few respects from the
previous year’s ruling: It admonished prayer
advocates for ignoring the law, spelled out in
some detail the precedents involved, and laid
out the Court’s first explicit test for
Establish-ment Clause questions Founded on the idea of
state NEUTRALITY, this test had a vital standard:
Any law hoping to survive the prohibitions of
the Establishment Clause must have“a secular
purpose and a primary effect that neither
advances nor inhibits religion.”
The test clearly spelled out the limits Study
of the Bible or religion was acceptable, but
only so long as “presented objectively as part
of a secular program of education.” Religious
practices in public school were not allowed
under the FIRST AMENDMENT “While the Free
Exercise Clause clearly prohibits the use ofSTATE
ACTION to deny the rights of free exercise to
anyone,” Justice Clark observed, “it has never
meant that a majority could use the machinery
of the State to practice its beliefs.”
Schempp produced three concurring
opi-nions, notably a 74-page opinion by Justice
William J Brennan Jr As in Engel, the sole
dissent came from JusticePOTTER STEWART Again
he disagreed with the majority’s emphasis on
the Establishment Clause’s taking precedence
over the Free Exercise Clause For Stewart, the
key factor was whether the states in the case had
actually coerced students into praying or Bible
reading He did not think so
Schempp concluded the initial round of the
Supreme Court’s prayer ban However, the issue
did not fade from public, political, and religious
concern, and it came before the Supreme Court
two decades later inWALLACE V.JAFFREE, 472 U.S
38, 105 S Ct 2479, 86 L Ed 2d 29 (1985) (a
one-minute period of silence for meditation or
prayer had no secular purpose and was created
with religious purpose)
The constitutionality of student-led
prayers made its way to the Supreme Court
in Santa Fe Independent School District v Doe,
530 U.S 290, 120 S Ct 2266, 147 L.Ed.2d 295
(2000) The Court held that a Texas public
school district could not let its students lead
prayers over the public-address system before
its high school football games The school
district’s sponsorship of the public prayers by
elected student representatives was unconsti-tutional because the schools could not coerce anyone to support or participate in religion
The Establishment Clause barred student prayers as well as those conducted by clergy
at school events such as graduation (LEE V
WEISMAN, 505 U.S 577, 112 S Ct 2649, 120 L
Ed.2d 467 [1992])
FURTHER READINGS American Civil Liberties Union (ACLU) 2002 “The Establishment Clause and Public Schools: An ACLU Legal Bulletin ”
Blanshard, Paul 1963 Religion and the Schools: The Great Controversy Boston: Beacon Press.
Brown, Steven P., and Cynthia J Bowling 2003 “Public Schools and Religious Expression: The Diversity
of School Districts ’ Policies Regarding Religious Expres-sion ” Journal of Church and State 45, no 2 (spring).
Davis, Derek H 2003 “Moments of Silence in America’s Public Schools: Constitutional and Ethical Con-siderations ” Journal of Church and State 45, no 3 (summer).
Drakeman, Donald L 1991 Church-State Constitutional Issues: Making Sense of the Establishment Clause.
Westport, CT: Greenwood.
Levy, Leonard W 1994 The Establishment Clause: Religion and the First Amendment 2d ed Chapel Hill: Univ of North Carolina Press.
“Religion and Schools.” 1994 Congressional Quarterly (February 18).
Edward L Schempp, his wife, Sidney, and two of his three children, Roger and Donna, challenged a Pennsylvania law that made Bible reading in the state’s schools compulsory.
AP IMAGES ABINGTON SCHOOL DISTRICT V SCHEMPP 9
Trang 3CROSS REFERENCES Constitutional Amendment; Religion; Schools and School Districts.
ABJURATION
A renunciation or abandonment by or upon oath
The renunciation under oath of one’s citizenship
or some other right or privilege
ABODE One’s home; habitation; place of dwelling; or residence Ordinarily means “domicile.” Living place impermanent in character The place where
a person dwells Residence of a legal voter Fixed place of residence for the time being For service of process, one’s fixed place of residence for the time being; his or her “usual place of abode.”
ABOLITION The destruction, annihilation, abrogation, or extinguishment of anything, but especially things
of a permanent nature—such as institutions, usages, or customs, as in the abolition of slavery
In U.S.LEGAL HISTORY, the concept of abolition generally refers to the eighteenth- and nineteenth-century movement to abolish the SLAVERY
of African Americans As a significant political force in the pre-Civil War United States, the abolitionists had significant effect on the U.S legal and political landscape Their consistent efforts to end the institution of slavery culmi-nated in 1865 with the RATIFICATION of the Constitution’s THIRTEENTH AMENDMENT, which outlawed slavery The abolitionist ranks encom-passed many different factions and people of different backgrounds and viewpoints, includ-ing European and African Americans, radicals
Abode: Home Ownership vs Rentals in the United States, 2008
SOURCE: U.S Census Bureau, Housing Vacancy Survey, 2008.
Less than 62.0%
62.0 to 66.9%
67.0 to 69.9%
70.0% or higher
Home ownership rates by state
Hawaii Alaska
Montana
Washington
Oregon
California
Nevada
Idaho
Wyoming
Utah
Colorado
New Mexico
Arizona
North Dakota Minnesota
South Dakota
Nebraska
Kansas
Oklahoma
Texas
Wisconsin
Iowa
Missouri
Arkansas
Louisiana
Illinois
Michigan
Indiana Ohio Pennsylvania
New York
W.Va.
Virginia
N.Carolina
Kentucky Tennessee
Miss Alabama Georgia
S.Carolina
Florida
Maine Vt.
N.H. Mass.
R.I Conn N.J.
Del.
Md.
D.C.
Renters 28%
Homeowners 58%
Vacancies 14%
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
10 ABJURATION
Trang 4and moderates The motives of the abolitionists
spanned a broad spectrum, from those who
opposed slavery as unjust and inhumane to
those whose objections were purely economic
and focused on the effects that an unpaid
Southern workforce had on wages and prices in
the North
Efforts to abolish slavery in America began
well before the Revolutionary War and were
influenced by similar movements in Great
Britain and France By the 1770s and 1780s,
many antislavery societies, largely dominated by
Quakers, had sprung up in the North Early
American leaders such as BENJAMIN FRANKLIN,
ALEXANDER HAMILTON,JOHN JAY, andTHOMAS PAINE
made known their opposition to slavery
The early abolitionists played an important
role in outlawing slavery in Northern states
by the early nineteenth century Vermont
out-lawed slavery in 1777, and Massachusetts
declared it INCONSISTENT with its new state
CONSTITUTION, ratified in 1780 Over the next
three decades, other Northern states, including
Pennsylvania, New York, and New Jersey, passed
gradual EMANCIPATION laws that freed all future
children of slaves By 1804, every Northern state
had enacted some form of emancipation law
In the South, where slavery played a far
greater role in the economy, emancipation moved
at a much slower pace By 1800 all Southern states
except Georgia and South Carolina had passed
laws that eased the practice of private
manumis-sion—or the freeing of slaves by individual
slaveholders Abolitionists won a further victory
in the early 1800s when the United States
outlawed international trade in slaves However,
widespreadSMUGGLINGof slaves continued
During the first three decades of the 1800s,
abolitionists continued to focus largely on
gradual emancipation As the nation expanded
westward, they also opposed the introduction of
slavery into the western territories Although
abolitionists had won an early victory on
this front in 1787, when they succeeded in
prohibiting slavery in the Northwest Territory,
their efforts in the 1800s were not as completely
successful The MISSOURI COMPROMISE OF 1820
(3 Stat 545), for example, stipulated that
slavery would be prohibited only in areas of
the LOUISIANA PURCHASE north of Missouri’s
southern boundary, except for Missouri itself,
which would be admitted to the Union as a
slave state Slavery in the territories remained
one of the most divisive issues in U.S politics until the end of theCIVIL WARin 1865
Beginning in the 1830s, evangelical Chris-tian groups, particularly in New England, brought a new radicalism to the cause of abolition They focused on the sinfulness of slavery and sought to end its practice by appealing to the consciences of European Americans who supported slavery Rather than endorsing a gradual emancipation, these new abolitionists called for the immediate and complete emancipation of slaves without com-pensation to slaveowners Leaders of this movement included WILLIAM LLOYD GARRISON, founder of the abolitionist newspaper the Liberator; FREDERICK DOUGLASS, a noted African American writer and orator; the sisters Sarah Moore Grimké and Angelina Emily Grimké, lecturers for the American Anti-Slavery Society and pioneers for women’s rights; Theodore Dwight Weld, author of an influential antislav-ery book, American Slavantislav-ery as It Is (1839); and later, HARRIET BEECHER STOWE, whose 1852 novel Uncle Tom’s Cabin was another important abolitionist tract
In 1833 this new generation of abolitionists formed the American Anti-Slavery Society (AAS) The organization grew quickly, particu-larly in the North, and by 1840 had reached a height of 1,650 chapters and an estimated 130,000 to 170,000 members Nevertheless, abolitionism remained an unpopular cause even
in the North, and few mainstream politicians openly endorsed it
To achieve its goals, the AAS undertook a number of large projects, many of which were
Members of the Pennsylvania Abolition Society (seated, far right, William Lloyd Garrison, founder
of The Liberator,
an abolitionist newspaper) NATIONAL PORTRAIT GALLERY ABOLITION 11
Trang 5frustrated by Southern opposition For example, the organization initiated a massive postal campaign designed to APPEAL to the moral scruples of Southern slaveowners and voters
The campaign flooded the South with antislav-ery tracts sent through the mails Although a law that would have excluded antislavery literature from the mails was narrowly defeated
in Congress in 1836, pro-slavery forces, with the help of President Andrew Jackson’s administra-tion and local postmasters, effectively ended the dissemination of abolitionist literature in the South The AAS was similarly frustrated when it petitioned Congress on a variety of subjects related to slavery Congressional gag rules rendered the many abolitionist petitions impo-tent These rules of LEGISLATIVE procedure allowed Congress to table and effectively ignore the antislavery petitions
By the 1840s the evangelical abolitionist movement had begun to break up into different factions These factions differed on the issue of gradual versus radical change and on the inclusion of other causes, including women’s rights, in their agendas Some abolitionists decided to form a political party The Liberty party, as they named it, nominated James G
Birney for U.S president in 1840 and 1844
When differences later led to the dissolution of the Liberty party, many of its members created theFREE SOIL PARTY, which took as its main cause opposition to slavery in the territories newly acquired from Mexico They were joined by defecting Democrats who were disgruntled with the increasing domination of Southern interests
in their party In 1848 the Free Soil party nominated as its candidate for U.S president
MARTIN VAN BUREN, who had served as the eighth
PRESIDENT OF THE UNITED STATES from 1837 to
1841, but Van Buren did not win (ZACHARY TAYLORwon the election.)
After passage of the FUGITIVE SLAVE ACT OF
1850 (9 Stat 462), which required Northern states to return escaped slaves and imposed penalties on people who aided such runaways, abolitionists became actively involved in the Underground Railroad, a secretive network that provided food, shelter, and direction to escaped slaves seeking freedom in the North This network was largely maintained by free African Americans and is estimated to have helped 50,000 to 100,000 slaves to freedom Harriet Tubman, an African American and ardent abolitionist, was one organizer of the Under-ground Railroad During the 1850s she bravely traveled into Southern states to help other African Americans escape from slavery, just as she had escaped herself
Whereas the vast majority of abolitionists eschewed violence,JOHN BROWNactively partici-pated in it In response to attacks led by pro-slavery forces against the town of Lawrence, Kansas, Brown, the leader of a Free SoilMILITIA, led a reprisal attack that killed five pro-slavery settlers in 1856 Three years later, he undertook
an operation that he hoped would inspire
a massive slave rebellion Brown and 21 followers began by capturing the U.S arsenal
at Harpers Ferry, Virginia (now West Virginia) Federal forces under Robert E Lee promptly recaptured the arsenal, and Brown was hanged shortly thereafter, becoming a martyr for the cause
In 1854 abolitionists and Free Soilers joined with a variety of other interests to form the REPUBLICAN PARTY, which successfully stood
ABRAHAM LINCOLN for president in 1860 Al-though the party took a strong stand against the introduction of slavery in the territories,
it did not propose the more radical option of immediate emancipation In fact, slavery ended
as a result of the Civil War, which lasted from
1861 to 1865 Not a true abolitionist at the start
of his presidency, Lincoln became increasingly receptive to antislavery opinion In 1863 he announced the EMANCIPATION PROCLAMATION, which freed all slaves in areas still engaged in revolt against the Union The PROCLAMATION
served as an important symbol of the Union’s new commitment to ending slavery Lincoln
This frontispiece
illustration, entitled
“A Slave Father Sold
Away from His
Family,” is from the
Child’s Antislavery
Book (1860) The
book was distributed
by the Sunday School
Union in an effort to
alert children to the
horrors of slavery.
CORBIS.
12 ABOLITION
Trang 6later supported the ratification of the Thirteenth
Amendment, which officially abolished slavery
in the United States
After the war, former abolitionists,
includ-ing radical Republicans such as Senator
CHARLES SUMNER (R-Mass.), continued to lobby
for CONSTITUTIONAL amendments that would
protect the rights of the newly freed slaves,
including theFOURTEENTH AMENDMENT, ratified in
1868, which guaranteed citizenship to former
slaves and declared that no state could“deprive
any person of life, liberty, or property, without
DUE PROCESS OF LAW; nor deny to any person
the EQUAL PROTECTION of the laws.” Former
abolitionists also lobbied, albeit
unsuc-cessfully, for land redistribution that would
have given ex-slaves a share of their former
owners’ land
FURTHER READINGS
Edwards, Judith 2004 Abolitionists and Slave Resistance:
Breaking the Chains of Slavery Berkeley Heights, NJ:
Enslow.
Greenburg, Martin H., and Charles G Waugh, eds 2000.
The Price of Freedom: Slavery and the Civil War.
Nashville: Cumberland House.
Hessler, Katherine 1998 “Early Efforts to Suppress Protest:
Unwanted Abolitionist Speech ” Boston Univ Public
Interest Law Journal 7 (spring).
Klingaman, William K 2001 Abraham Lincoln and the Road
to Emancipation, 1861–1865 New York: Viking.
Merrill, Walter M 1971 Against the Wind and Tide: A
Biography of William Lloyd Garrison Cambridge, MA:
Harvard Univ Press.
Tackach, James 2002 The Abolition of American Slavery San
Diego: Lucent.
CROSS REFERENCES
Compromise of 1850; Dred Scott v Sandford; Emancipation
Proclamation; Fourteenth Amendment; Fugitive Slave Act
of 1850; Lincoln, Abraham; Missouri Compromise of 1820;
Prigg v Pennsylvania; Slavery; Sumner, Charles; Thirteenth
Amendment.
ABORTION
An abortion is the spontaneous or artificially
induced expulsion of an embryo or fetus As used
in legal context, the term usually refers to induced
abortion
History
EnglishCOMMON LAWgenerally allowed abortion
before the “quickening” of the fetus (i.e., the
first recognizable movement of the fetus in the
uterus), which occurs between the sixteenth and
eighteenth weeks of pregnancy After quicken-ing, however, common law was less clear as to whether abortion was a crime In the United States, state legislatures did not pass abortion statutes until the nineteenth century After 1880 abortion was criminalized by statute in every state of the Union, owing in large measure to strong anti-abortion positions taken by the
AMERICAN MEDICAL ASSOCIATION (AMA) Despite the illegality, many thousands of women every year sought abortions Under a heavy cloak of shame and secrecy, these abortions were performed in unsafe conditions, and many women died or suffered medical complications from the procedures
The abortion laws developed in the late nineteenth century existed largely unchanged until the 1960s and 1970s, when a number of different circumstances combined to bring about a movement for their reform Women’s rights groups, doctors, and lawyers began an organized abortion reform movement to press for changes, in part because many of them had witnessed the sometimes deadly maternal com-plications resulting from illegal abortions
Women’s organizations also began to see abortion reform as a crucial step toward the goal of equality between the sexes They argued that women must be able to control their pregnancies in order to secure equal status In addition, new concerns regarding explosive population growth and its effect on the environment increased public awareness of the need forBIRTH CONTROL At the same time, many other countries developed far more permissive
Two police officers arrest one of many protestors partcipating in a pro-life sit-in during the 2008 Democratic National Convention
in Denver, Colorado DOUG PENSINGER/GETTY IMAGES
ABORTION 13
Trang 7laws regarding abortion In Japan and Eastern Europe, abortion was available on demand, and
in much of Western Europe, abortion was permitted to protect the mother’s health
Public awareness of the abortion issue also increased through two incidents in the early 1960s that caused a greater number of children
to be born with physical defects In 1961 the drug thalidomide, used to treat nausea during pregnancy, was found to cause serious birth defects A three-year (1962–1965) German measles epidemic caused an estimated 15,000 children to be born with defects Pregnant women who were affected by these incidents could not seek safe abortions because of the strict laws then in existence
Reacting to these and other developments, and inspired by the successes of theCIVIL RIGHTS MOVEMENT of the 1950s and 1960s, women’s rights organizations, including the NATIONAL ORGANIZATION FOR WOMEN (NOW), formed in
1966, sought to reform abortion laws through
LEGISLATION and lawsuits The organization hoped to educate a male-dominated legal and judicial profession about this important issue for women This effort, supported by such groups as the AMERICAN CIVIL LIBERTIES UNION
(ACLU), quickly began to have an effect
Between 1967 and 1970, 12 states adopted abortion reform legislation However, abortion activist groups began to see the abortion issue as
a question of social justice and to press for more than reform Under the rallying cry of “repro-ductive freedom,” they began to demand an outright REPEAL of existing state laws and unobstructed access for women to legal abortion The increase in abortion-related cases be-fore the courts eventually resulted in the need for clarification of the law by the Supreme Court After considering many abortion-related appeals and petitions, on May 31, 1971, the Court accepted two cases,ROE V.WADE, 410 U.S
113, 93 S Ct 705, 35 L Ed 2d 147 (1973) and Doe v Bolton, 410 U.S 179, 93 S Ct 739, 35 L
Ed 2d 201 (1973), for hearing
Roe v Wade and Doe v Bolton
Although the two cases before the Court appeared by their titles to involve the fates of two individuals, ROE and Doe, in reality both suits were brought by many people representing many different interests Roe v Wade was argued on behalf of all women of the state of Texas; in legal terminology, it was aCLASS ACTION
suit Thirty-six abortion reform groups filed briefs, or reports, with the Court on Roe’s
Pro-life supporters
march past the
Supreme Court
during the annual
March for Life event.
AP PHOTOS.
14 ABORTION
Trang 8behalf These included women’s, medical,
university, public health, legal,WELFARE, church,
population control, and other groups The
anti-abortion side of the case included
representa-tives from seven different anti-abortion groups
and the attorneys general of five states
Roe involved a person using the pseudonym
Jane Roe—actually Norma McCorvey, who
revealed her identity in 1984 Roe, an
unmar-ried, pregnant woman from Texas, wanted to
have an abortion, but an existing abortion
statute prevented her from doing so The Texas
statute, originally passed in 1857, outlawed
abortion except to save the mother’s life Roe
filed a lawsuit in federal district court on behalf
of herself and all other pregnant women She
sought to have the abortion statute declared
unconstitutional as an invasion of her right to
PRIVACYas protected by the First, Fourth, Fifth,
Ninth, and Fourteenth Amendments in
GRIS-WOLD V CONNECTICUT, 381 U.S 479, 513, 85
S Ct 1678, 14 L Ed 2d 510 (1965) 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 The
abortion reform movement attached two other
cases to Roe’s in an attempt to represent a wider
range of the interests involved in the issue The
physician James Hallford, who was being
prosecuted under the statute for two abortions
he had performed, also filed suit against the
Texas law, as did a childless couple, the Does
The three-judge district court combined
Roe’s case with the cases of Hallford and the
Does, but later dismissed the suit brought by the
Does on the grounds that neither had violated
the law and the woman was not pregnant The
district court agreed with Roe that the law was
unconstitutionally vague and violated her right
to privacy under the NINTH AMENDMENT, which
allows for the existence of rights, such as that of
privacy, not explicitly named in the
Constitu-tion’s BILL OF RIGHTS, and the FOURTEENTH
AMENDMENT It refused, however, to grant the
injunction, allowing her to go ahead with
the abortion Roe then appealed the denial of
the injunction to the U.S Supreme Court
Doe v Bolton involved a 1968 Georgia statute
that allowed abortion if necessary to save the
mother’s life, in the case of pregnancy resulting
fromRAPEorINCEST, or if the baby was likely to
be born with serious birth defects (Ga Crim
Code § 26-1202 a, b) However, the statute also
created procedural requirements that effectively would have allowed few abortions Those requirements included hospital accreditation, committee approval, two-doctor agreement, and state residency The case concerned Mary Doe, who had sought an abortion at Grady Memorial Hospital in Atlanta She claimed that she had been advised that pregnancy would endanger her health, but the hospital’s Abortion Rights Committee denied her the abortion She sought aDECLARATORY JUDGMENT, holding that the Georgia law unconstitutionally violated her right
to privacy as well as her Fourteenth Amendment guarantees of due process andEQUAL PROTECTION She also sought an injunction against the law’s enforcement
Roe and Doe were filed in March and April
1970, and the women’s pregnancies would not have lasted through December 1970 The Court heard the cases in December 1971 and October
1972, and they were not resolved until January
1973, when the Court announced its decisions
In Roe, the Court, on a 7–2 vote, found the Texas abortion statute unconstitutional In its opinion, written by Justice HARRY A.BLACKMUN, the Court held that the law violated a right to privacy guaranteed by the due process clause of the Fourteenth Amendment However, the Court further held that such a right is a
“qualified” one and subject to regulation by the state The state has “legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life” (i.e., the life
of the fetus) To specify when the state’s interests emerge, the Court divided pregnancy
On January 22, 2005, supporters of Roe v Wade gather outside the Supreme Court building to commemorate the 33rd anniversary of the Court’s decision to legalize abortion.
AP PHOTO/PABLO MARTINEZ MONSIVAIS ABORTION 15
Trang 9into twelve-week trimesters In the first trimes-ter, the state cannot regulate abortion or prevent a woman’s access to it It can only require that abortions be performed by a licensed physician and under medically safe conditions During the second trimester, the state can regulate abortion procedures as long as the regulations are reasonably related to the promotion of the mother’s health In the third trimester, the state has a dominant interest in protecting the “potentiality” of the fetus’s life
A state may prohibit abortions during this time except in cases where they are essential to preserve the life or health of the mother The Court also cited judicial precedent in holding that the fetus is not a“person” as defined by the Fourteenth Amendment
In Doe, the Court found the Georgia statute
to be unconstitutional as well, holding that it infringed on privacy and personal liberty by permitting abortion only in restricted cases The Court ruled further that the statute’s four procedural requirements—hospital accredita-tion, hospital committee approval, two-doctor agreement, and state residency—violated the
CONSTITUTION The state could not, for example, require that abortions be performed only at certain hospitals, because it had not shown that such restrictions advanced its interest in pro-moting the health of the pregnant woman Such
a requirement interfered with a woman’s right
to have an abortion in the first trimester of pregnancy, which the Court in Roe had declared was outside the scope of state regulation
After Roe v Wade
After the Supreme Court decisions in Roe v
Wade and Doe v Bolton, states began to liberalize their abortion laws However, abor-tion quickly became a divisive political issue for Americans Grassroots opposition to abortion—supported by such influential insti-tutions as the Catholic Church—was strong from the start By the early 1980s, the anti-abortion movement had become a powerful political force
President RONALD REAGAN strongly opposed abortion and used his administration to try to change abortion rulings He appointed a
SURGEON GENERAL, C Everett Koop, who opposed abortion, and Reagan made it a top priority of hisJUSTICE DEPARTMENTto effect a reversal of Roe
Reagan even published a book on the subject in
1984, Abortion and the Conscience of a Nation,
which contains many of the essential positions
of the anti-abortion movement Reagan argued that the fetus has rights equal to those of people who are already born He also cited figures indicating that 15 million abortions had been performed since 1973, and he stated his belief that the fetus experienced great pain as a result
of the abortion procedure He quoted a statement by Mother Teresa, the famed nun who helped the poor of Calcutta:“The greatest misery of our time is the generalized abortion of children.” Whereas abortion rights, or pro-choice, advocates argued that there were public health advantages of the new abortion laws, opponents of abortion, such as Reagan, referred
to abortion as a“silent holocaust.”
The anti-abortion, or pro-life, movement has challenged abortion in a number of different ways It has sponsoredCONSTITUTIONAL
amendments that would effectively reverse Roe,
as well as legislation that would limit and regulate access to abortion, including govern-ment financing of abortion procedures Some anti-abortion groups have practiced CIVIL DIS-OBEDIENCE, attempting to disrupt and block abortion clinic activities The most extreme opponents have resorted to violence and even
MURDERin an attempt to eliminate abortion All these methods have resulted in a great deal of LITIGATIONand added to the complexity
of the abortion issue Many of the subsequent cases have come before the Supreme Court Observers have often expected the Court to overturn its Roe decision, particularly after the Reagan administration appointed three justices to the Court However, although the Court allowed increasingly strict state regulation of abortion after Roe, it stuck to the essential finding in the case that women have
a limited right to terminate their pregnancies This entitlement is incorporated in the right of privacy guaranteed by the Fourteenth Amendment
Constitutional Amendments Although amend-ing the Constitution is the most direct way to reverse Roe v Wade, neither Congress nor the states have passed a CONSTITUTIONAL AMENDMENT
related to the issue of abortion The anti-abortion forces have found it extremely difficult to achieve
a public consensus on this divisive issue However, at least 19 state legislatures have passed applications to convene a constitutional conven-tion to propose an amendment that would
16 ABORTION
Trang 10outlaw abortions Congressional representatives
have also worked to bring such an amendment
about The many dozens of amendments that
have been proposed can be grouped into two
main categories: states’ rights and the right to life
The former would restore to the states the
same control over abortion that they exercised
prior to Roe The latter would designate the
fetus as a person, entitled to all the privileges and
rights guaranteed under the Fourteenth
Amendment
One unsuccessful attempt at changing the
Constitution was the Hatch amendment of 1983,
sponsored by Senator Orrin G Hatch (R-Utah),
which stated,“A right to abortion is not secured
by this Constitution.” It did not receive the
two-thirds majority necessary in Congress to be
submitted to the states forRATIFICATION
Congress has also sponsored legislation that
would effectively reverse Roe For example, the
Human Life Bill (S 158), introduced by Senator
JESSE HELMS (R-N.C.) in 1981, would have
established that the fetus is a person, entitled
to the full rights and privileges guaranteed by
the Fourteenth Amendment The bill did not
pass, and it is doubtful whether Congress has
the constitutional authority to overturn a
Supreme Court precedent without violating
theSEPARATION OF POWERS
Federal Financing In 1976 Representative
Henry J Hyde (R-lll.) sponsored an amendment
to theFEDERAL BUDGETappropriations bill for the
DEPARTMENT OF HEALTH AND HUMAN SERVICES(HHS)
His amendment denied MEDICAID funding for
abortion unless the woman’s life is in danger or
she is pregnant as a result of rape or incest, but
only if the woman reports the incident at the time
of its occurrence Despite opposition from
pro-abortion groups, Hyde attached this amendment
every year to the same appropriations bill The
Supreme Court has upheld the constitutionality
of the Hyde amendment (Harris v McRae, 448 U
S 297, 100 S Ct 2671, 65 L Ed 2d 784[1980];
McGowan v Maryland, 366 U.S 420, 81 S Ct
1101, 6 L Ed 2d 393[1961]) Evidence suggests
that these federal actions have caused fewer
women to have abortions
In the late 1980s, with its composition
having been changed by three Reagan
appoin-tees (Justices Sandra Day O’Connor, ANTONIN
SCALIA, and ANTHONY M KENNEDY), the Court
issued a RULING related to federal financing
of abortion that many perceived as a dramatic
shift against abortion rights In WEBSTER V
REPRODUCTIVE HEALTH SERVICES, 492 U.S 490,
109 S Ct 3040, 106 L Ed 2d 410 (1989), the Supreme Court upheld a Missouri law prohibit-ing the use of public funds and buildprohibit-ings for abortion procedures and counseling, including
a provision that required fetal testing for viability for abortions performed after the twentieth week of pregnancy (Mo Rev Stat
§§ 1.205.1, 1.205.2, 188.205, 188.210, 188.215)
Scalia, appointed in 1986, argued in his concurring opinion that Roe v Wade should
be overruled and that the Court had missed an opportunity in not doing so in this case
The Webster decision resulted in a flood of new state legislation related to abortion Many states sought to reactivate old abortion laws that had never been taken off the books subsequent to Roe Louisiana, for example, sought to reinstate
an 1855 law making all abortions illegal and imposing a ten-year sentence on doctors and women violating it However, in January 1990 a federal district court ruled that the 1855 law could not be reinstated and that subsequent laws allowing abortions in certain circumstances took precedence (Weeks v Connick, 733 F Supp 1036 [E.D La 1990]) By mid-1991, Pennsylvania, Guam, Utah, and Louisiana had all enacted laws banning abortions except in limited circum-stances Pennsylvania became the first to approve new abortion restrictions when it amended its Abortion Control Act (Pa Cons Stat Ann § 3201) to create strict new regulations on abortion procedures (see the discussion of Planned Parenthood of Southeastern Pennsylvania v Casey under“Other Major Abortion Regulations,” later
in this entry) In other states such as South and North Dakota, legislation that would have sharply restricted abortion was only narrowly defeated However, some states, including Con-necticut and Maryland, reacted to the Webster decision by passing legislation protecting women’s rights to abortion
Before the Court ruled on Pennsylvania’s Abortion Control Act, it decided a major case relating to federal funding and regulation of family planning clinics In Rust v Sullivan, 500 U.S 173, 111 S Ct 1759, 114 L Ed 2d 233 (1991), the Court upheld a series of regulations issued in 1988 by the Reagan administration’s Justice Department affecting family planning clinics that receive funds through Title X of the
PUBLIC HEALTH SERVICE Act of 1970, 42 U.S.C §§
300 to 300a-6 The regulations prohibited
ABORTION 17