Who knows about Roy's case

(1) In the history of more than 200 years in the United States, there has never been a case that has aroused such extensive and lasting opposition in the whole society as the Federal Supreme Court (hereinafter referred to as the Supreme Court) 1973 Roy v. Wade [1] (hereinafter referred to as Roy case or Roy case).

After Roy's case, members of the Senate and the House of Representatives who opposed abortion put forward constitutional amendment bills in that year, such as "the constitutional protection of the legislative power of abortion in all states", "the constitutional protection of life starting from fertilization" and "the constitutional protection of unborn children", trying to overturn Roy's case through constitutional amendment, although it was hopeless to pass a "one size fits all" abortion constitutional amendment bill. After the 1980s, the legislative motion changed from amending the law to enacting a civil rights bill. The party opposed to abortion put forward a civil rights bill for unborn children, which advocates that life begins with conception, and a civil rights bill for fetuses, which prohibits abortion based on the sex of the fetus. The side supporting abortion put forward the Law on Women's Health Equality, the Law on Free Choice and the Law on Reproductive Health Protection. 1996, the Senate and the House of Representatives passed an anti-abortion law prohibiting "partial birth" by a majority vote, and President Clinton exercised his veto power to prevent the law from taking effect.

During the Republican administration, successive presidents of the United States took overthrowing the Roy case as one of the main political goals during their term of office. Opposing abortion is an important part of Reagan's campaign platform "moral majority" Reagan claimed: "A society denies the value of a part of human life-the fetus, and this society also devalues all human lives." [2] As an amicus curiae for many times, the federal government has an interest in the judgment of the case in cases involving public interests, so it is allowed to support one party in court. Together with the state government, it has asked the Supreme Court to overturn Roy's precedent.

The president of the United States has always influenced the judiciary by nominating federal court judges, but the presidential nomination must be recognized by the majority of the Senate. After the Roy case, changing the power balance of the Supreme Court by nominating justices became an important political strategy for the President of the United States to overthrow or maintain the Roy case. At the Senate hearing, there is often a heated debate between the members who support and oppose the presidential nomination, and the attitude of the candidate for justice to abortion is often the focus of controversy. [3] From the Roy case to the appointment of two justices by Clinton in 1993 and 1994, the power balance of the Supreme Court changed substantially: the judges who supported Roy case changed from the majority to the minority, and the judges who advocated overthrowing Roy case in whole or in part changed from the minority to the majority. At present, the nine justices of the Supreme Court are divided into three groups: following precedent, limiting precedent and overturning precedent. They are deadlocked on some controversial points, so that they cannot form a majority opinion.

Whenever the Supreme Court hears an abortion case, people who support and oppose abortion will hold a large-scale demonstration in tit-for-tat manner. One slogan is "I am the master in reproductive choice", and the other slogan is "There is no privacy to kill". At the same time, lobbying protest letters flooded into the Supreme Court. Throughout the country, it is common for demonstrators to block abortion clinics and discourage pregnant women from seeking abortion counseling. In extreme cases, anti-abortion sentiment leads to violence, such as shooting abortion clinics. Scalia, the current Justice, said in her objection to Kaiser's case: "The Roy case is not the main reason for resolving people's differences on abortion, but the main reason for deepening and expanding these differences. It was the Roy case that pushed the differences to the whole country, thus creating endless difficulties for resolving differences. " 〔4〕

(2) The Roy case shows how judges, parties and scholars compete for legitimacy by interpreting the law around a case. This competition process itself can explain more than any theory: what is legal interpretation?

If we discuss legal interpretation in general, we will always struggle with some preconditions, such as: why explain it? What is the problem that leads to the explanation? What is the purpose of explanation? Is the explanation method appropriate? These preconditions can be omitted or observed when we observe the explanation process from a difficult case. Because: 1. A real dispute was brought to court. When there is a dispute between the parties, they ask the court to solve the dispute, instead of the court creating a legal problem that is divorced from specific facts and then making a general legal interpretation. Of course, the court can find controversial issues by choosing cases, but the court is at least passive in form.

2. In the whole dispute process, the roles of the participants are predetermined and unchangeable, and each party should establish the legitimacy of its own claims and break the legitimacy of the other party's claims. The whole process of dispute resolution is a legal competition through adversarial litigation, and judges must judge the result of legal competition. In most cases, the judge can only decide that one party wins the case and the other party loses the case at a certain dispute focus, and there is no other choice. So, all sides launched a contest that was destined to win or lose around a question that was destined to have an answer-not a single martial arts performance, but a duet that decided the outcome. An unchangeable fact is that people can't give up the explanation because of the differences between the explanation methods and theories, and they can't wait until the explanation methods and theories are "perfect" before drawing conclusions. Therefore, the debate about the interpretation method and theory only shows its practical significance as an integral part of legal competition.

3. Both the judge and the parties admit that there is an authoritative text to decide the legality dispute outside the parties and the court. The object of interpretation is not only definite and explicable, but also binding on participants and judges, at least in form. Even if the parties argue about the rationality of a law itself, they still admit that there is another more authoritative legal text, otherwise, the issue of legal interpretation cannot enter the court.

4. One difference between litigation and sports competition is that the judge needs to state the reasons for judging the outcome, and the sports referee only makes a conclusion without talking about the reasons. Judges are qualified to decide whether to win or lose because they can provide reasons for judgment; Sports referees also have their own reasons, but the sports rules themselves are simpler and clearer than the legal rules. The referees need to announce the winners and losers on the spot and have no time to state the reasons. The judge needs to tell the parties: where the rules that determine the result come from, how the rules apply to controversial facts, whether the rules follow precedents and so on. The judge needs to prove that the referee conforms to an authoritative text that is divorced from the participants in the game. As for whether a judge draws an "objective" conclusion after comparing facts and laws, or whether he first forms a "preconceived opinion" and then cuts facts and laws according to the "preconceived opinion", this is an unverifiable state of mind of the judge-a question determined by the professional conscience of the judge. But in any case, the judge is obliged to make every effort to form the conviction of the parties: the judgment comes from the legal text that the judge must obey, not from the judge's own moral philosophy, ideology or prejudice.

In adversarial litigation, one side usually wins and the other side loses (except that both sides win or lose). If all the judges agree on the verdict (the conclusion and reasons are the same), the reason for the trial is usually to strengthen the legitimacy of one party and deny the legitimacy of the other party. The judge is essentially joining one side's camp, and the reason for the judgment is essentially the explanation of the litigant's claim and the legitimacy of the judgment itself. Therefore, the problem is not how judges with the same educational background hold different opinions on the same fact and the same law, but how they use basically the same source of legitimacy to establish different reasons for trial. The reason for the trial is legal interpretation. In this regard, an award without trial grounds cannot be regarded as a judicial award.

(3) The legal issues caused by Roy's case include: Is the legality of abortion a political issue that should be solved by legislation or a legal issue that should be solved by the Supreme Court? Should judicial decisions follow precedent or conform to public opinion? According to the amendment to the Constitution 14, does the inalienable personal freedom without due process include women's freedom of abortion, and does the inalienable personal life without due process include "fetus"? Is the court's interpretation of the constitution based on the constitutional provisions and the intention of the constitutional makers, or is it a constitutional "basic value" that allows judges to play freely? The debate around these issues is by no means a unified understanding, but a contest in role legitimacy, value judgment and legal interpretation methods-a contest of legitimacy under a specific system and a specific case background.

The questions surrounding Roy's case are all related to legal interpretation, because on the basic premise related to the dispute, both sides have * * * knowledge: first, the authenticity of the question is not disputed, and only with such * * knowledge can we enter the first question of Roy's case-is this a question that should be answered by the court? Secondly, both the judge and the parties admit that the constitution is more authoritative than themselves, and whether the opinions of the parties and the judgment of the court are legal depends on whether they can be supported by the constitution; What matters is not what the judge has decided, but whether the judge's decision can be supported by the constitution. Therefore, the second question in Roy's case-did the judge go beyond the meaning of the constitutional text and the creator's intention to explain whether the constitution deviated from its due role? Third, the constitutional precedent constitutes a binding authority for the court after it takes effect. However, the court does not rule out the possibility of overturning precedent. Therefore, the third question that enters Roy's case-should the court respond to the public's reaction and overturn the case?

Although the controversy surrounding Roy's case has always been based on constitutional interpretation and focused on the legitimate role of the court, the motive force of the dispute is legitimate interest competition. On the one hand, Roy case legalized female abortion, on the other hand, Roy case offended other value judgments of American society and broke the legal boundary formed by tradition. Roy's case is a blasphemy against the religion that life begins with conception: when the court declared that the fetus is not life, a secular authority invaded the traditional territory of religious authority; An important reason why the voice against Roy's case is so intense, extensive and lasting is the hatred between the judicial and religious circles. Roy's case poses a severe challenge to the legislative power of each state: the three-stage division of pregnancy in Roy's case actually provides legislative plans for each state government, and the radical infringement of the legislative territory of each state by federal judges naturally causes strong resistance.

The impact of Roy's case on the boundary of traditional legitimate interests goes far beyond the issue of reproductive autonomy. When the court declared that abortion was a right of privacy protected by the Constitution, it triggered a wider controversy about the legalization of interests:

1. Since maternity and abortion are rights that are equally protected, does the government violate the rule of equal protection by subsidizing maternity but not abortion? The legitimacy of the government's allocation of social resources is facing challenges.

2. Since abortion is the right to privacy, why can't homosexuality be the right to privacy, and why can't gay couples get the same welfare benefits as heterosexual spouses? Why can't homosexuals adopt children and become the legal heirs of each other?

3. Since abortion is the freedom for individuals to control their own bodies, is euthanasia freedom? Does the person have the right to commit suicide? Can doctors help patients realize this right? When a traditional "illegal" claim was "rehabilitated", similar illegal claims followed, demanding "rehabilitation" in succession, which triggered a series of struggles to redraw the boundaries of legitimate interests.

Roy's case is not a simple question of legal interpretation, but the opposing parties expand their legal territory and redraw their legal boundaries through legal interpretation. However, the legal issues raised by Roy's case are not new, but an old topic that has been debated since the Supreme Court claimed the right to review unconstitutionality. People argue about these old topics not for the purpose of "unifying thoughts" or seeking common ground while reserving differences, but because whenever a force tries to change the traditional border, the arguments of both sides who advocate maintaining the original state and changing the border always start a new round of contest around the old topics.