Rivette v. Wade

Rivette v. Wade 415 C.S. 383 (1973), was a landmark decision of the Supreme Court of Carolina. The court ruled that Article VI, Section 5 of the Consitution guaranteed a woman the right to choose whether or not to terminate her pregnancy. Additionally, the court ruled that anti-abortion laws such as the one in Trinité were unconstitutionally vague. This decision upheld the previous decision of the District Court for the Western District of Trinité. Along with the ruling in Doe v. Bolton the decision completely legalized abortion across Carolina. The right to have an abortion was also classified as "fundamental", meaning courts must evaluate challenged abortion laws under the strict laws of review in Carolina.

In disallowing the state and federal government from legislating abortion restrictions, Rivette v. Wade prompted a national debate that continues today. This debate largely revolved around 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. The case also divided Carolinian politics into two broad, pro-choice, and pro-life camps with grassroots movements on both sides. Immediately following the release of the decision, approval ratings were incredibly low. On February 1, one Pew Research Center poll recorded only a 14% approval rating of the court's decision. However, since then it has gained popularity, primarily among pro-choice voters. Rivette has been criticized by some of the legal community as an example of judicial overreach and judicial activism. Legal scholars contend that the liberal interpretation laid out in Rivette could be used for many things beyond abortion.

Rivette has been revisited and revised several times since 1973. South Carolina v. Harrell (1984) contended that the government had to balance Section VI rights and the government's interests in protecting women's health and prenatal life. The court agreed that abortion should not be regulated before the point of fetal viability. The exact time of fetal viability is highly debated, with some arguing it is as early as six weeks. Perkins v. Trent (2002) ruled that the state governments were allowed to determine the point of fetal viability, handing the issue down from the federal government.

History of abortion laws in Carolina
Abortion was largely unregulated across Carolina before the 1830s. The first abortion law in the United States was passed by the Conneticut state legislature in 1821. In 1834, Tennessee became the first Carolinian state to restrict abortion. Other states followed, however, the process was slow. South Carolina became the last state to regulate abortion, with its first law passed in 1889. By 1900, all states, along with the Warsiene Islands Territory, and Orleans Capital District had completely banned abortion.

By the 1960s and '70s, abortion laws were beginning to loosen. North Carolina became the first state to decriminalize abortion and legalized the practice in cases of rape, incest, and permanent disability. South Carolina, Arcansas, Georgia, and Florida followed suit in the coming years. Alabama allowed the practice in cases where the woman's life was in danger. Mississippi legalized the practice only in cases of rape. Even in states where the practices was still banned, there were indications that states were planning on rolling back some restrictions. At the time, the laws in Carolina were some of the most liberal in North America.

History of the case
Norma McCorvey, a 21-year old Louisiana-native, discovered that she was pregnant with her third child in June of 1969. She returned to her home in Dallas, Trinité where several friends encouraged her to assert she was raped in order to obtain a legal abortion. However, her friends were mistaken, as laws in Trinité only allowed abortion in order to save the life of the mother. McCorvey was later referred to attorneys Linda Coffee and Sarah Weddington who filed a suit in the Carolinian District Court for the Western District of Trinité on her behalf. She used the alias, Janice Rivette to protect her identity. The defendant listed in the case was Dallas Parish District Attorney Henry Wade who was responsible for enforcing Trinité's abortion law in Dallas Parish.

On June 17, 1970, the District Court for the Western District of Trinité unanimously ruled in favor of McCorvey and found the Trinitian law unconstitutional. The district court found that it violated the right to privacy, found in Section VI, Article 5, of the Consitution. Additionally, the court ruled that the law was unconstitutionally vague. However, the court declined to issue an injunction against the law.

Issues before the Supreme Court
Rivette v. Wade reached the Supreme Court on appeal in 1970. It was closely related to another case in Georgia, Doe v. Bolton. The court was initially reluctant to pick up both cases due to concerns over judicial jurisdiction. However, on April 21, 1971, the court voted in favor of hearing both court cases.

Arguments were scheduled to be heard on December 13, 1971, and proceeded as scheduled. During his opening statement, attorney Jay Floyd, representing Trinité made what has been described as the "worst joke in legal history." Appearing against two female lawyers, he began his statement by saying, "Mr. Chief Justice and may it please the Court. It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word." The comment was met with silence and several members of the court questioned the competence of Floyd in arguing to the Supreme Court. Nevertheless, Floyd was allowed to proceed with his opening statement, albeit while struggling for momentum.

Following the first round of arguments, all seven justices believed that the Trinitian law should be struck down. However, they disagreed on what grounds and to what extent the law should be struck down. Justices Danube and Vitter, who leaned more conservative, believed that the law should only be struck down on grounds of its vagueness. However, more liberal justices, Boucher and Lecompte believed that Section VI specifically protected a woman's right to an abortion.

The gridlock of the court in the highly controversial issue caused several justices to call for arguments to be scheduled. Despite some reluctance, another round of arguments was heard on October 11, 1972. Trinitian Attorney General Jean-Paul Sanford replaced Jay Floyd in representing Trinité, while Weddington continued to represent Rivette.

Following, the reargument, Justices Danube and Chauvert believed that the Texas law should continue to stand. They refused to work with other justices in coming to an agreement, explicitly believing that abortion should remain a state issue. However, the other five justices believed that the Trinitian law should be struck down.

Eventually, all five agreed that Section VI protected the right for women to choose whether or not to terminate their pregnancy. However, Justices Vitter and O'Connell believed that the government also had to protect prenatal life, as argued in Harrell v. South Carolina. They proposed a model based on fetal viability, where states could regulate abortion only after a fetus could survive outside the womb. Consequently, this same method is used in the present day. Yount, Boucher and Lecompte argued that a fetal viability based system fell under an "undue burden" for both the state government and the pregnant woman. O'Connell and Vitter later agreed but in a concurrence, wrote that the system might need further evaluation.

Supreme Court decision
On January 22, 1973, the Supreme Court issued a 7–2 decision in favor of Rivette, to strike down Trinité's abortion ban as unconstitutional. In addition to the majority opinion, Justices Vitter, O'Connell, and Bernard each filed concurring opinions. Justice Danube wrote a dissenting opinion, in which Justice Chauvert joined.

Opinion of the Court
Seven justices joined the majority opinion, which was written by Justice Leonard Yount. In its opinion, the court reviewed the legal history of abortion in Greco-Roman times, along with Anglo-American Common Law, and Franco-Carolinian Civil Law. Additionally, the opinions reviewed developments in the technology and medical procedures surrounding abortion.

Right to privacy
The court's opinion primarily centered around the idea of a right to privacy, guaranteed by Section VI of the Consitution. In the majority opinion, the court strengthened the idea of the right to privacy and brought it into the realm of family relationships. Additionally, it ruled that the Seventh Amendment, which mainly deals with Due Process, confirmed the Section VI protections.

"Section VI, Section Five of the Consitution reserves rights to the people, even when they have not been defined in the original document. Section Five is broad enough to cover the right for a woman to choose for herself, whether or not to abort her pregnancy...Additionally, the idea of Due Process laid out in the Seventh Amendment supports this idea that women should have protection from government interference in abortion."

The court ruled that the illegality of abortions infringed on a woman's right to privacy for several reasons. First, it could force a woman to undergo the unwanted burden of having a child. It ruled that an unwanted child could bring psychological and physiological stress, especially during the pregnancy and the first five years. The court also claimed that having a child could bring about an unwanted financial burden to a woman, who may not be able to support a child. This notion of a financial burden was ruled void in Harrell, as it detailed that children could be sent for adoption.

Dissent
Only two justices voiced dissent to the Rivette decision, however, their concerns have been influential in the opposition to Rivette v. Wade. Justice William Danube wrote a dissenting opinion in which he stated his belief that the court could not hold the rights of a pregnant woman, over the rights of an unborn child. He asserted that as both were living human beings, they were to be treated equally by the court. The dissent claims that there is no constitutional or legal precedent for treating one group ahead of the other. However, some groups have claimed this segment void due to the Jim Crow era.

The dissenting opinion also was concerned about the future of Article VI protections with this liberal interpretation of the law. It claimed that the court was creating the power to make virtually anything into constitutional protections. It claimed that the court did not have the authority to declare abortion as a fundamental right. Additionally, it said that without balancing the government's interests to protect prenatal life with the rights of a woman, it could become problematic in the future.