Roe, Doe and Women's Rights

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Roe, Doe & Women’s Rights

THE CLAIM: Those who want the United States Supreme Court to uphold Roe and Doe frequently claim that overruling these cases will bring about an end to women’s rights.

THE TRUTH: Neither these cases nor Planned Parenthood v. Casey has had any impact upon women’s rights outside of the abortion context.

Research was conducted in 2003 to answer the question of whether these cases have ever been used to define women’s rights outside the context of abortion, particularly in the areas of sex discrimination, adoption and custody, abuse, prostitution and statutory rape. The research reviewed all federal and state cases decided since January 22, 1973 in which either Roe v. Wade, or Planned Parenthood v. Casey was cited within a “paragraph” (as WESTLAW broadly defines that term) of key search terms, “discrimination,” “adoption,” “custody,” “abuse,” “prostitution” and “statutory rape.” Over 3600 cases were reviewed.

No cases were found in which either Roe or Casey was cited in the context of an opinion addressing an issue of sex discrimination. This is not surprising because there were very few such decisions in the first twenty years after Roe was decided. Following are examples of how Roe and Casey have been used to attempt to impact other issues related to women’s rights.

Prostitution

In Doe v. Butterworth, 988 F. Supp. 1569, 1573-80 (S.D. Fla. 1997), aff’d, 129 F.3d 1221 (11th Cir. 1997), cert. denied, 523 U.S. 1024 (1998), the district court rejected an argument that Roe v. Wade confers a privacy interest in engaging in acts of prostitution.

Sex Offender Registration

In Paul P. v. Verniero, 982 F.Supp. 961, 966-68 (D. N.J. 1997), aff’d, 170 F.3d 396 (3d Cir. 1999), the district court, in an opinion distinguishing Roe and other authorities, held that the community notification provisions of “Megan’s Law,” requiring registration of sex offenders, did not unconstitutionally implicate the registrants’ right to privacy.

Open Adoption Statues

In two cases, one from Oregon and another from Tennessee, one state court and one federal court rejected challenges to “open adoption” statutes that retroactively opened adoption records to adoptees who were adopted under “closed adoption” statutes. See Does 1, 2, 3, 4, 5, 6 and 7 v. State, 992P.2d 822 (Or. Ct. App. 1999), and Doe v. Sundquist, 943 F.Supp. 886 (M.D. Tenn. 1996), aff’d 106 F.3d 702 (6th Cir. 1997). In each case, the plaintiffs had cited Roe, along with other authorities, in alleging a privacy interest in maintaining the confidentiality of adoption records.

Child Abuse

In a case later reversed by the Wisconsin Supreme Court, the Wisconsin Court of Appeals cited Roe in support of the authority of a juvenile court to order a pregnant women with a viable fetus to be confined to a hospital until birth to prevent the child from being injured by the mother’s drug abuse problem. See State v. Kruzicki, 541 N.W.2d 482, 489-90 (Wis. Ct. App. 1995), rev’d, 561 N.W.2d 729 (Wis. 1997).

In In re Baby Boy Blackshear, 1999 WL 770788 (Ohio Ct. App. Sept. 7, 1999), however, the Ohio Court of Appeals distinguished both Roe and Casey in holding that a finding of abuse (under a civil statute) could be based upon a woman’s smoking of crack cocaine during pregnancy.

CONCLUSION: Neither Roe, Doe nor Casey has been used as a legal basis for establishing any new rights for women. However, these cases have been cited by those seeking to strike down laws prohibiting spousal rape and prostitution. Progress in women’s economic, legal and social rights has come from legislation and cases using other legal grounds such as equal protection and due process.