Editing Roe v. Wade (section)

===Postponement===
''Roe v. Wade'' reached the Supreme Court when both sides appealed in 1970. It bypassed the Court of Appeals for the Fifth Circuit<ref>{{cite web|url=https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpeccol-e564|access-date=2024-04-05|first=Merle|last=Weiner|title=Roe v Wade Case (US)|publisher=Oxford Constitutional Law|date=August 2016}}</ref> because 28 USC § 1253 authorizes a direct appeal to the Supreme Court in cases concerning the granting or denial of a civil injunction decided by a three judge panel.<ref>{{cite news|access-date=2024-04-05|url=https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1415&context=fac_pubs|date=2022|first1=Michael|last1=Solimine|title=The Strange Career of the Three-Judge District Court: Federalism and Civil Rights, 1954-76 and Civil Rights, 1954-76|first2=James|last2=Walker|publisher=Case Western Reserve Law Review|volume=72|number=4}}</ref>
The case continued under the name ''Roe v. Wade'' instead of being switched to ''Wade v. Roe''. The justices delayed taking action on ''Roe'' and a closely related case, ''[[Doe v. Bolton]]'', until they had first decided certain other cases. One case they decided first was ''[[Younger v. Harris]]''. The justices felt the appeals raised difficult questions on judicial [[jurisdiction]].

Another case was ''[[United States v. Vuitch]]'', in which they considered the constitutionality of a [[Washington D.C.|District of Columbia]] statute which banned abortion except when the mother's life or health was endangered. The Court upheld the statute on the grounds that the word "health" was not [[Vagueness doctrine#Unconstitutional vagueness|unconstitutionally vague]] and placed the [[Burden of proof (law)|burden of proof]] concerning dangers to the life or health of the mother on the prosecutor instead of on the person who had performed the abortion.<ref>[https://supreme.justia.com/cases/federal/us/402/62/ ''United States v. Vuitch'', 402 U.S. 62 (1971)], ''justia.com''</ref>

Justice [[William O. Douglas]] wrote a lengthy dissenting opinion to this case. He argued that the right to marital privacy and the limitation of family size from ''[[Griswold v. Connecticut]]'' also applied here, although he acknowledged that "on the other side is the belief of many that the fetus, once formed, is a member of the human family and that mere personal inconvenience cannot justify the fetus' destruction." He also challenged the majority opinion with a series of hypothetical questions asking whether "health" might also include the stigma of having an [[Legitimacy (family law)|illegitimate]] child, anxiety from the pregnancy being unwanted, the physical work of raising a child, the financial drain from the added expense of another child, and far off health risks that may never actually materialize in a similar fashion to how risks were warded off with [[Prophylactic surgery|prophylactic]] appendectomy.<ref>[https://caselaw.findlaw.com/us-supreme-court/402/62.html United States v. Vuitch] (1971), No. 84 Argued: January 12, 1971, Decided: April 21, 1971, ''findlaw.com''</ref> Douglas' dissent made a similar legal argument to the one used two years later in ''Roe v. Wade''.<ref>{{cite book|url=https://books.google.com/books?id=AZlzCQAAQBAJ&pg=PA56|title=The Politics of Abortion in the United States and Canada: A Comparative Study|first=Raymond|last=Tatalovich|location=New York|publisher=Routledge|year=1997|page= 56|isbn=978-1-317-45539-4 }}</ref> The following day after their decision was announced, the court voted to hear both ''Roe'' and ''Doe''.{{sfnp|Greenhouse|2005|pp=77–79}}

According to Blackmun, Stewart felt the cases were a straightforward application of ''Younger v. Harris'', and enough justices agreed to hear the cases to review whether they would be suitable for federal as opposed to only state courts.<ref name=forsythe98>{{harvnb|Forsythe|2013|p=98}}</ref> This sort of review was not about the constitutionality of abortion and would not have required evidence, witnesses, or a record of facts.<ref>{{harvnb|Forsythe|2013|p=92}}</ref> The oral argument was scheduled by the full Court for December 13, 1971. Before the Court could hear the oral argument, Justices [[Hugo Black]] and [[John Marshall Harlan II]] retired. Chief Justice [[Warren Burger]] asked Justice [[Potter Stewart]] and Justice Blackmun to determine whether ''Roe'' and ''Doe'', among others, should be heard as scheduled. They recommended that the Court continue on as scheduled.{{sfnp|Greenhouse|2005|p=80}}