Roe V. Wade

Roe V. Wade

BIBLIOGRAPHY

Few U.S. Supreme Court rulings have been as contentious as the Court’s 1973 decision in Roe v. Wade. This landmark decision not only invalidated a number of state abortion laws, it also served to further divide public opinion with respect to “discretionary” abortion decisions (Franklin and Kosaki 1989, p. 759).

A number of states reformed their abortion statutes to broaden access to legal abortions in the late 1960s. Some of these laws, for example, permitted abortion when a woman’s health was in danger as opposed to only her life. Some reforms, moreover, provided for legal abortions if a woman had been a victim of rape or incest, as well as in situations in which a fetal defect was present (Tribe 1991, p. 42). Of course, prior to Roe, a number of states, including Texas, prohibited abortions except when a woman’s life was in danger.

In addition to a perceived need for further abortion law reform, developments in the Supreme Court’s privacy doctrine with respect to the use and distribution of contraceptives provided constitutional arguments that could potentially be applied to the expansion of abortion rights (Nossiff 2001, p. 41). In Griswold v. Connecticut (1965), the Supreme Court held that a Connecticut statute prohibiting the use of contraceptives violated a married couple’s constitutional right to privacy. In Eisenstadt v. Baird (1972), the Court recognized that single persons also enjoy a right to privacy with respect to reproductive decisions when it struck down a Massachusetts law banning the provision of contraceptives to unmarried persons in order to prevent pregnancy.

The legal question as to whether a woman’s privacy right could extend to her decision to terminate a pregnancy was presented to the Supreme Court in Roe v. Wade. Jane Roe, who would later reveal her identity as Norma McCorvey, was pregnant and wanted to obtain an abortion in Texas, her state of residence. Texas law, however, prohibited abortions except when necessary to preserve the mother’s life. McCorvey’s pregnancy did not threaten her life, nor did she have the finances to travel to a state in which abortion was legal. A Dallas attorney referred McCorvey to Sarah Weddington and Linda Coffee, two attorneys who were preparing a legal challenge to the Texas abortion laws. The case, which eventually became a class-action lawsuit, also involved a married couple dubbed John and Mary Doe. They argued that the law interfered with their marital relationship since Mary’s physician had cautioned her about becoming pregnant but directed her to refrain from using birth control pills because of a medical condition. Under Texas law, however, abortion would be a foreclosed option for the couple in the event of an unintended pregnancy. James Hallford, a physician who was charged with violating the Texas abortion laws, also participated in the lawsuit. The plaintiffs sought a declaration that the Texas laws were unconstitutional, as well as an injunction to prevent their enforcement (Weddington 1992, pp. 50–62).

Jay Floyd, representing the Texas Office of the Attorney General, raised important challenges concerning the plaintiffs’ standing to sue and the timing of the lawsuit. With respect to the merits, he argued that there was no constitutional right to an abortion and that the state had a “compelling interest in protecting the fetus” (Weddington 1992, p. 66). The representative for the district attorney’s office argued further that abortion was an appropriate area for state regulation and also suggested that the privacy interests of women seeking abortions must give way to the protection of the unborn (Weddington 1992, pp. 65–66).

Although the three-judge trial court agreed with Floyd’s argument that John and Mary Doe did not have standing to sue, the court held that Roe and Hallford could pursue their claims. On the merits, the court found that the laws violated the constitutional right of individuals to determine whether they wanted children; however, it refused to issue the plaintiffs’ request for an injunction. Dallas County district attorney Henry Wade’s assertion that he would continue to enforce the contested law assisted Weddington’s efforts in obtaining a Supreme Court review of the decision (Weddington 1992, pp. 67–69).

The Supreme Court first heard oral arguments in Roe in 1971. However, the justices agreed that the case should be reargued to allow newly appointed justices William Rehnquist (1924–2005) and Lewis Powell (1907–1998) to take part in the decision. Accordingly, the Court issued its landmark decision in 1973. Writing for a seven-member majority, Justice Harry Blackmun (1908–1999) argued that a constitutional “right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” (410 U.S. 113, 153). However, the majority also recognized that the state has legitimate interests with respect to “health,” “medical standards,” and “potential life” that might justify regulating abortion at certain points (410 U.S. 113, 154).

Specifically, Blackmun articulated a trimester framework to evaluate when these state interests could justify regulation of a woman’s decision to have an abortion. During the first trimester of a woman’s pregnancy, when the risk of mortality from an abortion is low relative to the risk of childbirth, the Court held that “the abortion decision … must be left to the medical judgment” of a woman’s doctor (410 U.S. 113, 164). However, by the second trimester, the state could regulate abortions in order to protect maternal health (410 U.S. 113, 163). Finally, the state’s interest in protecting “potential life” could justify regulation when the fetus reaches the stage of “viability,” defined as the point at which it has “the capability of meaningful life outside the mother’s womb.” At this stage, Blackmun held that the state could prohibit abortion so long as exceptions were made “to preserve the life or health of the mother” (410 U.S. 113, 154).

While many individuals and groups defended the Supreme Court’s decision in Roe, others criticized the ruling in the hope of seeing it limited or overruled. At the state level, for example, attempts to restrict access to abortion have been made through laws requiring parental or spousal notification or consent, informed consent, waiting periods, and tests to determine fetal viability, as well as through laws prohibiting public financing or assistance for abortion procedures (Nossiff 2001, p. 148; Tribe 1991, p. 144). McCorvey herself later backed away from her affiliation with the Roe decision and the pro-choice movement. In 1995 McCorvey was baptized by the national director of Operation Rescue, a well-known organization opposing abortion rights in the United States (New York Times 1995, p. A12), and in 2003 she unsuccessfully petitioned a federal court to reconsider the result announced in Roe (New York Sun 2003, p. 6).

The battle over abortion rights and the Roe decision has also colored the Supreme Court judicial selection process. Nominees to the Court after Roe have been scrutinized concerning their positions on privacy rights generally and their opinion of Roe specifically. Although John Roberts was tapped to replace Chief Justice Rehnquist in 2005, particular concern was raised that Justice Sandra Day O’Connor’s replacement in 2006, Samuel Alito, might provide the Court with the votes needed to overrule this controversial decision. However, as legal analyst Jeffrey Toobin (2005, p. 81) noted, a number of Republican-appointed justices have joined the Court since Roe, and, although the Court has revisited the topic of abortion rights in a number of cases, it has yet to overrule the decision.

SEE ALSO Abortion; Supreme Court, U.S.;Women’s Movement

BIBLIOGRAPHY

Eisenstadt v. Baird, 405 U.S. 438 (1972).

Franklin, Charles H., and Liane C. Kosaki. 1989. Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion. American Political Science Review 83 (3): 751–771.

Griswold v. Connecticut, 381 U.S. 479 (1965).

New York Sun. 2003. Roe’s Regrets. June 23: 6.

New York Times. 1995. “Jane Roe” Joins Anti-Abortion Group. August 11: A12.

Nossiff, Rosemary. 2001. Before Roe: Abortion Policy in the States. Philadelphia: Temple University Press.

O’Brien, David M. 1993. A Struggle for Power. In Storm Center: The Supreme Court in American Politics, 3rd ed., 23–64. New York: Norton.

Roe v. Wade, 410 U.S. 113 (1973).

Toobin, Jeffrey. 2005. Still Standing: The Resilience of Roe v. Wade. New Yorker. November 28: 70–81.

Tribe, Laurence H. 1991. Abortion: The Clash of Absolutes. New York: Norton.

Weddington, Sarah. 1992. A Question of Choice. New York: Putnam’s.

Erin B. Kaheny