ROE V. WADE

Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), was a landmark decision by the U.S. Supreme Court that declared a pregnant woman is entitled to have an abortion until the end of the first trimester of pregnancy without any interference by the state.

In a 7–2 decision on January 22, 1973, the Supreme Court struck down an 1857 Texas statute that made abortion illegal except where the life of the mother was in danger. The Court's opinion, as written by Justice harry a. blackmun, set forth guidelines for the drafting of future state legislation on the issue. In a long and detailed opinion, the Court specified the points during a woman's pregnancy when the interests of the state in the health of the mother and of the fetus emerge. Roe established the parameters of the abortion debate for decades to come.

The case involved an unmarried pregnant woman who was at the time identified only as Jane Roe in order to maintain her anonymity but who has since publicly identified herself as Norma McCorvey. McCorvey, a resident of Texas, wanted to have an abortion, but the existing state law prevented her from doing so. She filed a lawsuit in federal district court on behalf of herself and all other pregnant women. The suit sought to have the Texas abortion law declared unconstitutional as an invasion of her right to privacy as guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. She also sought to have an injunction, or court order, issued against the statute's enforcement so that she might go forward with the abortion. A physician, James Hubert Hallford,

who was being prosecuted under the statute for two abortions he had performed, also filed suit against the law, as did a childless couple, the Does (Mary Doe and john doe). A three-judge district court combined the cases of McCorvey and Hallford and dismissed the suit brought by the Does on the grounds that neither of them had violated the law and Mary Doe was not pregnant.

The district court agreed with McCorvey that the law was unconstitutionally vague and violated her right to privacy under the Ninth Amendment—which allows for the existence of rights, like that of privacy, not explicitly named in the Constitution's Bill of Rights—and the fourteenth amendment. It refused, however to grant the injunction allowing her to go ahead with the abortion. McCorvey appealed the denial of the injunction to the U.S. Supreme Court. The Supreme Court agreed to hear the case along with another, Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), relating to a 1968 Georgia abortion statute. The Court dismissed Hallford's case because of the pending prosecutions against him. Hallford made no allegation of any substantial and immediate threat to any federal protected right that could not be asserted in his defense against the state prosecution. Nor did he allege harassment or bad-faith prosecution by the state. Hallford's case fell clearly within the ambit of the rule announced in prior Supreme Court cases

Norma McCorvey: The Real Jane Roe

In a 1984 television interview, Norma McCorvey revealed that she is Jane Roe, the plaintiff in the most famous abortion case in U.S. history, Roe v. Wade. In 1994, she published an autobiography, I Am Roe: My Life, Roe v. Wade, and Freedom of Choice, that puts a human face on the story of Roe. In her book, McCorvey candidly recounts the difficulties of her life, including growing up with an abusive mother, spending time in reform school as an adolescent, struggling with addictions to drugs and alcohol, and coming out as a lesbian.

McCorvey was born Norma Leah Nelson on September 22, 1947, in the bayou country of Lettesworth, Louisiana. Half Cajun and part Native American, she eventually moved with her poor, working-class family to Dallas, where she has since lived most of her life. After an unsuccessful marriage to an abusive husband, she divorced and gave up a daughter to relatives. Wrestling with drug and alcohol addictions amid the counterculture swirl of the 1960s, she later gave up two more children to adoption, including the child she carried when she brought Roeto court.

In September 1969, while working as a carnival freak show barker, McCorvey learned that she was pregnant for the third time and returned to Dallas. Out of work, severely depressed, with no money, she decided to seek an abortion. After being told that abortion was legal in cases of rape or incest, friends advised her to lie and say that she had been raped. However, since no police report of the fictitious rape existed, the ruse did not work. She then went to an illegal abortion clinic but found that it had been closed by the police; all that was left was an abandoned building where "dirty instruments were scattered around the room, and there was dried blood on the floor."

Eventually, McCorvey was referred to sarah weddington and Linda Coffee, young attorneys who were looking for a plaintiff to challenge the Texas abortion law. Weddington herself had been forced to go to Mexico in order to obtain an abortion during the 1960s. McCorvey agreed to participate in a lawsuit against Henry Wade, the Dallas district attorney. Although she still hoped to finish the suit in time to have an abortion, McCorvey told her attorneys, "Let's do it for other women." McCorvey chose to remain anonymous for several reasons: she feared publicity would hurt her five-year-old daughter, her parents were against abortion, and she had lied about being raped. She did not participate in court hearings in order to maintain her anonymity.

On March 3, 1970, when Roewas filed in court, McCorvey was six months pregnant. In June, at twenty-three years of age, she gave birth, and her child went up for adoption. On January 22, 1973, over two years too late to alter the course of her pregnancy, McCorvey learned that she had won her case: the Supreme Court had ruled that the Texas abortion law was unconstitutional.

In 1989, McCorvey decided to ally herself publicly with the abortion rights movement. Shortly before she participated in a large pro-choice rally in Washington, D.C., someone fired gunshots at her house and car, in one of many incidents of harassment she has had to endure since making her identity known. Frightened but undaunted, she joined the April 9 rally and made a speech on Capitol Hill before hundreds of thousands of people. McCorvey worked for a time at a family planning clinic and traveled around the United States giving speeches promoting the reproductive rights of women.

In August 1995, McCorvey announced that she had switched sides on the abortion debate. "I'm pro-life," McCorvey stated. "I think I have always been pro-life, I just didn't know it." McCorvey's reversal was attributed to her new friendship with the Reverend Philip ("Flip") Benham, national director of the militant antiabortion group Operation Rescue. The group had moved its national headquarters into an office next to the clinic where McCorvey worked. After being baptized by Benham, McCorvey declared that she would work on behalf of Operation Rescue.

further readings

McCorvey, Norma, with Andy Meisler. 1994. I Am Roe: My Life, Roe v. Wade, and Freedom of Choice. New York: Harper-Collins.

that a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the state is prosecuting him or her (Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 [1971]; Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 [1971]; Boyle v. Landry, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 [1971]).

Justices hugo black and john m. harlan submitted their resignations in September 1971, shortly before the beginning of the term in which the Supreme Court was scheduled to hear the arguments on the abortion cases. The case was first heard in December 1971 by seven justices, though President richard nixon had previously announced the nominations of two new justices, lewis f. powell jr. and william h. rehnquist.

Powell was confirmed as an associate justice by the Senate on December 7, 1971, and Rehnquist was confirmed on December 15. Both were sworn in as associate justices on January 7, 1971, about a month after the Court had originally heard the arguments in Roe. Chief Justice warren e. burger chose Justice Blackmun—who had served for many years as legal counsel to the Mayo Clinic, in Rochester, Minnesota—to write the Court's original opinion, which Blackmun completed in May 1972. Blackmun's opinion would have struck down the Texas law on the grounds of vagueness, and the result of the opinion would have been that the majority of abortion statutes in the United States would have been unconstitutionally vague as well, though the Court would not have considered whether the right to an abortion was a fundamental right. However, Blackmun also recommended that the Court reconsider the case with all nine justices.

Instead of issuing Blackmun's original opinion, the Court decided to rehear the case during the following term. The Court reheard the case beginning October 11, 1972. After the rehearing, the Court, with Blackmun again writing for the majority, found the Texas abortion law to be unconstitutional. It declared that such laws "violate the due process clause, which protects against state action the right to privacy, including [a] woman's qualified right to terminate her pregnancy." Rehnquist, a politically conservative justice, wrote a dissenting opinion.

In its opinion, the Court ruled that the right to terminate a pregnancy is part of a woman's right to privacy. At the same time, however, it declared that "[t]his right is not unqualified and must be considered against important state interests in regulation." The state, the Court argued, "has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life," interests that change in importance as the pregnancy progresses. In the first trimester, the Court said, the state has no interest in regulating the right of a woman to obtain an abortion. In making this decision, the Court pointed to evidence showing that the health of the mother is not endangered by an abortion during the first 12 weeks of pregnancy. According to that evidence, women are less likely to die from complications of an abortion conducted in the first trimester than from carrying their pregnancy to term. The Court also found that the state may require that all abortions be performed only by licensed physicians under medically safe conditions.

The Court found that the state's interest in regulating abortion and protecting a pregnant woman's health emerges in the second trimester. "[I]n promoting its interest in the health of the mother," the Court declared, "the state may regulate the abortion procedure in ways that are reasonably related to maternal health." It may, for example, impose requirements regarding the qualifications and licensing of those performing abortions; it may also regulate where abortions can be performed. Beyond these rules, the woman, in consultation with her physician, is free to decide whether to end her pregnancy.

In the third trimester, the interest of the state in "the potentiality of human life"—that is, the life of the fetus before birth—makes it possible to regulate and even prohibit abortions except when necessary to save the life or health of the mother. By this period, the fetus is determined to be viable—that is, capable of living outside the womb—and therefore entitled to protection by the state.

The Court did not accept arguments that the fetus be regarded as a person within the meaning of the Due Process Clause of the Fourteenth Amendment, which declares that no state shall "deprive any person of life, liberty, or property, without due process of law" (§ 1). "There is no medical or scientific proof that life is present from conception," wrote the Court.

[W]e need not resolve the difficult question of when life begins, when those trained in the respective fields of medicine, philosophy and theology are unable to arrive at any consensus. The judiciary at this point in the

development of man's knowledge is not in a position to speculate as to the answer.

As author of the Court's opinion, Justice Blackmun made it clear that abortion was an extraordinarily difficult issue:

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement free of emotion and predilection.

Although the opinion went into the "medical and medical-legal" history of the issue and quoted medical authorities frequently, the Court chose to decide the case on constitutional rather than medical or philosophical grounds. In this case, the crucial constitutional consideration was the right to privacy, which some would argue is as old as the Constitution. The most important precedent for the Roe decision on this issue was the 1965 Supreme Court case griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510, which clearly set forth a constitutional right to privacy—in this instance, a married couple's right to privacy when deciding whether or not to use contraceptives. Roe was in fact part of a gradual expansion of the right to privacy during the 1960s and 1970s, to include not only a right to freedom from physical searches and seizures, for example, but also a right to make individual decisions free of coercion, whether physical or psychological, especially in matters regarding the family and reproduction.

In his dissent in Roe, Justice Rehnquist differed with the majority on a number of points. For one thing, McCorvey had given birth in 1970 and had given her child up for adoption. He argued that because McCorvey was no longer in the first term of her pregnancy, indeed was no longer pregnant, when her case came before the Supreme Court, the case had become hypothetical rather than actual and therefore outside the jurisdiction of the Court. Rehnquist also argued that the regulation of abortion should be left to the states and that the right of privacy had nothing to do with the case. "I have difficulty in concluding, as the Court does, that the right of 'privacy' is involved in this case," he wrote. "The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment." Moreover, in Rehnquist's view, the Texas abortion law met the test of having "a rational relation to a valid state objective." Rehnquist's fellow dissenter in Roe, Justice byron r. white, called the decisions in Doe and Roe "an example of raw judicial power" and "an improvident and extravagant exercise of the power of judicial review" (Doe, 410 U.S. 179 at 221, 93 S. Ct. 762).

The Roe decision has largely been perceived as a victory for the abortion reform and women's rights movements and a defeat for antiabortion forces, but in many ways it was a compromise between the two sides. While antiabortion forces were unhappy with the establishment of a right to abortion for women in the first trimester of pregnancy, pro-abortion groups were displeased with the limits on abortion allowed in the last two trimesters of pregnancy. The Court also compromised in its decision as to when life begins and who is to be defined as a person with full rights under the Constitution. It did not agree with the pro-abortion movement, which declared that life does not begin until birth, or with the antiabortion movement, which maintained that life begins at conception. Instead, it chose to define the rights of the fetus as emerging when it reaches the stage of viability, when it can survive independently outside the womb. In making this decision, some have argued, the Court made personhood subject to change, particularly as science has moved the time of viability further back.

Feminists and women's rights advocates saw Roe as a vindication of women's reproductive rights and a step toward greater equality between the sexes. Such equality, they argued, can happen only when women have the ability to control reproduction. Others, opposed to the decision in Roe, believed that the Supreme Court had overstepped its bounds by effectively making new social policy, a task they felt was better left to elected members of state legislatures. Still others felt that the Court had violated the sanctity of human life by permitting abortion. In any case, Roe has been a far-reaching decision, affecting many spheres of U.S. life, including medicine, religion, and the family.

In the decades following Roe, antiabortion groups mounted continual campaigns to repeal the decision. Despite these challenges, the Supreme Court repeatedly supported the essential elements of that decision, particularly as regards the right to privacy.

further readings

Baker, Hunter. 2001. "Storming the Gates of a Massive Cultural Investment: Reconsidering Roe in Light of Its Flawed Foundation and Undesirable Consequences." Regent University Law Review 14.

Butler, J. Douglas, and David F. Walbert, eds. 1992. Abortion, Medicine, and the Law. 4th ed. New York: Facts on File.

Faux, Marian. 2000. Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal. New York: Cooper Square Press.

Gonzalez, Jose L. 2001. "The Legitimization of Fetal Tissue Transplantation Research Under Roe v. Wade." Creighton Law Review 34.

Lucas, Ray. 2003. "Forgotten Supreme Court Abortion Cases: Drs. Hawker and Herwitz in the Dock and Defrocked." Pepperdine Law Review. 641.

McCorvey, Norma. 1994. I Am Roe: My Life, Roe v. Wade, and Freedom of Choice. New York: HarperCollins.

Payment, Simone. 2003. Roe v. Wade: The Right to Choose. New York: Rosen.

Rubin, Eva R. 1987. Abortion, Politics and the Courts: Roe v. Wade and Its Aftermath. New York: Greenwood.

Simon, James F. 1995. The Center Holds: The Power Struggle Inside the Rehnquist Court. New York: Simon & Schuster.

cross-references

Fetal Rights; Fetal Tissue Research; Penumbra; "Roe v. Wade" (Appendix, Milestone); Wattleton, Alice Faye.

Roe v. Wade, 410 U.S. 113 (1973), argued 13 Dec. 1971, reargued 11 Oct. 1972, decided 22 Jan. 1973 by vote of 7 to 2; Blackmun for the Court, Douglas, Stewart, and Burger concurring, White and Rehnquist in dissent. After the middle of the nineteenth century most states, under the prodding of physicians wishing to establish the scientific stature of their activities, adopted laws severely restricting the availability of abortion. The so‐called sexual revolution of the 1950s and 1960s, which fostered increased access to contraceptives and the development of contraceptive drugs, also resulted in an increasing number of situations in which women desired abortions. In the 1960s and early 1970s the discovery that thalidomide, a drug that many women had used in early stages of pregnancy to relieve morning sickness, occasionally caused birth defects, as well as the highly publicized case of Sherry Finkbine, an Arizona broadcasting figure who went to Sweden to obtain an abortion when she feared her baby would be severely handicapped, increased public pressure to relax the abortion laws. Illegal abortions were widespread, though their exact number is impossible to determine, and some women died because of the unsanitary conditions in which illegal abortions were sometimes performed. The revitalized women's movement made change in the abortion laws one of its priority goals.

Abortion reform took two forms. State legislatures began to make it easier to obtain abortions, usually by allowing abortion to protect a woman's health, broadly defined, but also requiring approval of the abortion by a committee of doctors in addition to the woman's own physician. Once some states had begun to relax abortion restrictions, any woman who could afford it found it relatively easy to travel to a state with an unrestrictive law or to find a doctor who would certify that the abortion was necessary to preserve her health.

Court attacks on restrictive abortion laws focused initially on the most restrictive of the traditional laws; challengers argued that such laws, which permitted abortions only to save a woman's life, were so vague that doctors could not know when they were committing an illegal act. The California Supreme Court agreed with such a challenge in People v. Belous (1969), and the United States Supreme Court in United States v. Vuitch (1971) avoided a decision on the constitutional question by construing a federal abortion law, applicable in the District of Columbia, to allow abortions when the woman's health, broadly defined, was in danger.

At the time these challenges were being brought, the Court was also developing a law of personal privacy in sexual matters, holding, for example, that a severe restriction on the availability of contraceptives was a violation of a constitutional right to privacy in Griswold v. Connecticut, 1965. Challenges to restrictive abortion laws relied on Griswold as the basis for arguing that such laws violated the right to privacy.

Roe v. Wade involved a challenge to a traditional, severely restrictive abortion law (from Texas) as well as a challenge to a more modern abortion law (from Georgia) that allowed abortions to be performed in hospitals, when approved by a hospital committee, to avoid danger to a woman's health. The action was brought in the name of Jane Roe, a procedure adopted to ensure that the plaintiff would not have to reveal the facts surrounding her pregnancy to the Court. Although those facts were irrelevant in light of the Court's analysis of the legal issues, shortly after the case was decided the plaintiff was identified as Norma McCorvey. At first McCorvey stated that her pregnancy had resulted from a gang rape; later she revealed that it resulted from a failed relationship.

Blackmun's Analysis

When the case was first argued, Justice Harry Blackmun, who had once served as counsel to the Mayo Clinic in Rochester, Minnesota, drafted an opinion that would have held both statutes unconstitutionally vague. In part because his analysis was clearly unpersuasive and in part because some justices believed that the case had been improperly assigned to Blackmun to write, the case was set for reargument. During the summer preceding the reargument, Blackmun engaged in an extensive study of medical material relating to abortion.

After reargument, Blackmun circulated an opinion finding both statutes unconstitutional on the ground that they violated the woman's right to privacy, which the opinion located in the Due Process Clause of the Fourteenth Amendment. Justice Potter Stewart's concurring opinion properly pointed out that this invocation of substantive due process meant that the Court was enforcing a right not specifically spelled out in the Constitution.

After finding that the case was not moot despite the fact that there had been no time to secure a decision before the opportunity for obtaining an abortion had passed, Blackmun's opinion acknowledged that states had some valid interests in regulating abortion. The opinion divided pregnancy into three periods, or trimesters. During the first trimester the woman had an essentially unrestricted right to choose abortion in consultation with her physician; thus, Blackmun held, the hospitalization and committee requirements of the more “liberal” state laws were unconstitutional. During the second trimester, when according to medical experts abortion posed a greater threat to a woman's health, states could regulate abortion to protect her health. Only in the third trimester was the state's interest in protecting the potential life of the fetus great enough to warrant severe restrictions on abortion, and even then, the Court held, states must permit abortions to save a woman's life. In the course of this analysis, Blackmun's opinion stated that because of uncertainty about the medical and moral status of the fetus, the states could not adopt a particular theory of when life begins—they could not decide, for example, that because life begins at conception fetuses have the same rights as newborn infants.

Although Chief Justice Warren Burger's concurring opinion denied that Roe had established a right to abortion on demand, that was its practical effect. Justices Byron White and William Rehnquist, in separate dissents, criticized the Court for enforcing a right not specified in the Constitution to overturn statutes that were no more restrictive than those widely in force when the Fourteenth Amendment was adopted. In addition, they criticized the Court for the trimester framework, which, in their view, was arbitrary. If the state had an interest in protecting the potential life of the fetus, that interest existed, and was equally strong, through the entire pregnancy. Further, they said, the Court's balancing of competing interests and careful laying out of what doctors could do in various circumstances resembled a statute.

Three justices appointed by President Richard Nixon joined the majority in Roe, whose outcome appears to be inconsistent with the sort of “strict construction” of the Constitution that they were said to support. In political terms, Roe is probably best understood as part of the Court's attempt to respond to and develop support within an important emerging constituency, the organized women's movement. Although the opinion did not treat the issue as one of gender discrimination, there were plainly questions of gender at stake in the abortion controversy, for it was widely understood that the burdens of undesired pregnancy fell exclusively on women. Restrictive abortion laws have typically been enacted by legislatures dominated by men. This practice could have been treated as raising questions of gender discrimination. The Court's failure to present its opinion on these grounds may have been a serious tactical error, for the flaws of Blackmun's privacy analysis, employing a newly discovered constitutional “right,” were widely noted after Roe was decided.

Criticism and Aftermath of Roe

Academic critics of Roe argued that invalidating legislation where there was no constitutional text or history to indicate that the legislation contravened fundamental values protected by the Constitution was reminiscent of the Lochner v. New York era, when the Court invalidated many statutes aimed at improving the economic conditions of workers on the ground that the statutes violated a “liberty of contract” nowhere spelled out in the Constitution (see Contract, Freedom of). Critics also pointed out that, given the acknowledged impact of abortion on the fetus and the medical dimensions of the technique, it was silly to treat the case as one involving “privacy” in the way that Griswold, which was about the use of contraceptives, involved actions performed in the privacy of the home.

Academic defenders of Roe offered two lines of argument. Some suggested that the case should be reconceptualized as a case of gender discrimination, which, they argued, was indeed barred by the Equal Protection Clause of the Fourteenth Amendment. Others agreed that Roe resembled Lochner but argued that the vice of Lochner was not that it enforced values not found in the constitutional text but that it enforced values that were not fundamental according to any well‐developed theory of rights, whereas the right to privacy, or to personal autonomy in sexual matters, was fundamental under many uncontroversial versions of liberal political theory.

Roe was even more controversial among the public. It generated a substantial “right to life” movement that lobbied legislatures to adopt regulations that went as far as possible within the Roe framework to restrict the availability of abortions and was particularly influential in gaining power within the Republican party, whose presidential candidates in the 1980s agreed not to appoint judges who were sympathetic to the constitutional analysis adopted in Roe.

The Court adhered to the Roe analysis for the next decade, but in several important cases it upheld legislative attempts to restrict a woman's right to choose an abortion. Perhaps the most important early such decision was Harris v. McRae (1980), which held that Congress did not violate the Constitution when it prohibited the use of Medicaid funds to pay for nontherapeutic abortions. In an earlier decision, Maher v. Roe (1977), the Court had held, similarly, that the states were not required to fund abortions for indigent women. (Most states do not fund nontherapeutic abortions, but some do.)

A predicted likely effect of these decisions was the return to the situation that prevailed before Roe, in which women who could afford them secured abortions relatively easily, while women without means were forced to rely on illegal abortions or, like Jane Roe, left to carry their unwanted pregnancies to term. The actual impact of Harris, however, is uncertain, since despite the absence of public funding legal abortions rose steadily, reaching a high of about 1.6 million abortions annually in 1991. Private charitable sources now fund a majority of those abortions.

Other restrictions the Court upheld were requirements regarding record keeping about abortions and regulations requiring the notification of the parents of a minor woman seeking an abortion unless the woman could show a court that notifying the parents was inappropriate. The Court, however, did strike down requirements of parental and spousal consent as well as a variety of regulations designed to make the decision to have an abortion more difficult (e.g., Akron v. Akron Center for Reproductive Health, 1983; Thornburgh v. American College of Obstetricians & Gynecologists, 1986).

The retirements of Burger and Stewart, both of whom were in the majority in Roe, gave President Ronald Reagan the opportunity to begin to reshape the Court's position on the abortion issue, but it was the retirement of Justice Lewis Powell in 1987 that provided the greatest opportunity for change. Reagan nominated Judge Robert Bork to succeed Powell, in part because of Bork's vigorous and well‐known opposition to Roe. That opposition was a source of great concern to supporters of Roe, who formed an important part of the political coalition that defeated Bork's nomination.

In 1989 the Court, with Justice Anthony Kennedy sitting in an abortion case of the first time, came close to overruling Roe in Webster v. Reproductive Services, but in the end a majority of the justices held only that two additional restrictions on abortions were relatively minor extensions of what Roe itself allowed. Partisans on both sides of the abortion issue, however, took Webster as a signal that further political action was appropriate. Abortion‐rights activists, in particular, realized that the right to choose abortion might no longer be adequately protected in the courts, and they revived the sort of political lobbying in which they had engaged prior to Roe. Immediately after Webster two gubernatorial elections suggested that the threat to abortion rights was an important factor in the election of two Democratic governors, but as the Webster decision became part of the overall political landscape the implications for the long term were less clear.

The most significant threat to Rose emerged in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey. A deeply and bitterly divided Court sustained the Pennsylvania law placing certain restrictions on access to abortions, but the justices refused to overturn the Roe precedent. Justice Sandra Day O'Connor's opinion reaffirmed that a woman has a constitutional right to an abortion before the fetus attains viability, at roughly six months of pregnancy. In the wake of Casey, anti‐abortion groups turned to new tactics designed to harass persons attempting to use abortion clinics and those who worked in them. The justices in National Organization of Women v. Scheidler (1994) held that abortion clinics could deal with these tactics by invoking the Federal Racketeering law to sue violent antiabortion protest groups for damages.

Bibliography

Marian Faux , Roe v. Wade (1988).
Laurence Tribe , Abortion: The Clash of Absolutes (1990).

Mark V. Tushnet

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

ROE V. WADE

ROE V. WADE, 410 U.S. 113 (1973), the landmark case establishing a woman's constitutional right to an abortion, was initiated by attorneys Sarah Weddington and Linda Coffee with Norma McCorvey as one of the plaintiffs. A single pregnant woman known as "Jane Roe" to protect her privacy, McCorvey had been denied an abortion under a Texas law. The 7 to 3 decision, which also covered Doe v. Bolton, a Georgia case, upheld federal appeals court's decisions striking down provisions of both the Texas and Georgia laws. Effectively rendered unconstitutional were all statutes that either prohibited abortion (Texas) or encumbered legal abortions in such excessive regulation as to make then virtually unattainable (Georgia).

The decision was the culmination of ongoing efforts of several groups seeking decriminalization and reflected changing public opinion about abortion. Support for legal reform had grown stronger when the news broke that the drug thalidomide, extensively prescribed to alleviate morning sickness in the early stages of pregnancy, produced severe physical defects in children. In a much publicized incident, Sherry Finkbine, an Arizona woman who had taken thalidomide, requested an abortion with the support of her doctors. Because of the threat of prosecution by local authorities, the Finkbines, seeking a more favorable legal climate, fled to Sweden where abortion was legal. Her plight dramatized to both the medical profession and ordinary citizens the need for legal change, as did figures on illegal abortions, which ranged from 200,000 to 1,200,000 annually. Fatalities for the women undergoing the procedure, always estimates, were high. In 1955, the annual American loss of women's lives was put at from three thousand to eight thousand.

The justices, no longer able to avoid the issue, agonized over the decision—none more than Justice Harry Blackmun, who wrote the majority opinion resting the right to an abortion on the right to privacy. The right to privacy in sexual and reproductive matters, while not specified in the Bill of Rights, had recently evolved. Building on Griswold v. Connecticut (1965), a case involving the use of birth control by a married couple, abortion rights lawyers had persuaded the lower courts to extend the right of privacy implied in the Fourth Amendment's guarantee against unreasonable searches to other reproductive decisions, notably whether to carry a fetus to term. That right, however, was never intended by the Court to be absolute. After much internal debate concerning the cutoff point at which the state's interest in protecting potential life should take precedence over a woman's right to terminate a pregnancy, the majority reached a compromise that Blackmun tied to the trimester system. During the first three months of pregnancy, a woman was to be free to make the decision in consultation with her doctor. In the second trimester, the states could regulate abortion in order to protect maternal health, but could not prohibit the procedure. While rejecting the notion that the fetus from the moment of conception was a constitutionally protected "person" under the Fourteenth Amendment, the Court used the stage in fetal development when survival was possible outside the woman's body as the point at which state interest in protecting potential life took precedence. Since viability occurred at approximately the end of six months, Roe stipulated that states could prohibit abortions in the third trimester.

The decision, which imposed the Court's regulatory formula upon the states, evoked intense resentment and high praise. Irate legislators charged that their law-making function had been usurped. Abortion rights supporters, dismayed that only three states had legalized abortion by 1970, rejoiced. Catholic clergy attacked the decision as sanctioning the taking of a human life, while mainline Protestant clergy appreciated the option it offered the anguished women they counseled. Legal critics found the fragile textual backing for privacy to be weak constitutional grounding for abortion rights and the trimester formula to be problematic. Others argued that the Court had moved too far too fast. Its mistake, they argued, was abandoning an incremental approach to the abortion issue that would have produced smaller changes over time, allowing the public time to adjust. Pro-choice attorneys, while elated by the scope of the decision, also had legal concerns. Fearful that relying on privacy instead of equal protection made the decision constitutionally vulnerable, they further criticized Roe as too medicalized, privileging physicians' autonomy over women's. Concerned that state regulation in later trimesters would not take into account the needs of pregnant woman, feminists warned that the Court's compromise could lead to government coercion and involuntary motherhood.

What was indisputable was the immediate formation of a grassroots movement by opponents eager to erode the abortion rights conferred in Roe. Although the Court initially rejected state restrictions, in 1980 it upheld the "Hyde Amendment" by which Congress refused to fund even medically necessary abortions of indigent women (Harris v. Mc Rae, 488 U.S. 297), a practice that many states followed. And in Webster v. Reproductive Health Services (1989), the Court, by a 5 to 3 vote, upheld the right of Missouri legislators to deny the use of public employees and facilities to perform or assist abortions. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court finally reaffirmed Roe in a 5 to 3 vote. But though the formal right to an abortion had survived, other tactics of the antiabortion movement had reduced it as a practical option, especially for poor and rural women.

BIBLIOGRAPHY

Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. Updated and with a new preface and epilogue. Berkeley and Los Angeles: University of California Press, 1998.

Petchesky, Rosalind P. Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom. Rev. ed. Boston: Northeastern University Press, 1990.

Siegel, Reva. "Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection," 44 (Jan. 1992): 261–381.

Jane SherronDe Hart

See alsoAbortion ; Equal Rights Amendment .

Roe v. Wade (1973). In Roe v. Wade, the U.S Supreme Court found unconstitutional state criminal abortion laws dating back to the 1860s and 1870s. By a 7–2 vote, announced on 22 January 1973, the court ruled that prohibiting abortion violated a woman's right to privacy in determining whether or not to carry a pregnancy to term. The Court declared, however, that this right was not “absolute,” but balanced against state interests. States were prohibited from interfering with abortion during the first trimester of pregnancy; they were allowed to regulate abortions in the second trimester to ensure the safety of the woman; and they could prohibit abortion in the third trimester to protect fetal life, unless the pregnancy jeopardized the woman's life or health. In a companion opinion, Doe v. Bolton, the Court found that policies designed to restrict abortions by reviewing (and often overturning) physicians' recommendations for abortion were unconstitutional because they violated doctors' rights to make medical decisions.

The principal author of both decisions was Justice Harry A. Blackmun (1908–1999). Blackmun's decision derived the right‐to‐privacy principle (not mentioned in the Constitution) from the due process clause of the Fourteenth Amendment. The two dissenters, Justice Byron White and future chief justice William Rehnquist, criticized the right‐to‐privacy argument as constitutionally dubious and the trimester approach as arbitrary.

Roe v. Wade grew out of a changing legal and political context. Several states (Alaska, Hawaii', and New York) had already legalized abortion, and a dozen more had liberalized their laws to make it easier for women to obtain “therapeutic” abortions. (Therapeutic abortions to protect the life of the pregnant woman were always permitted.) The movement toward legalization began in the mid‐1950s among physicians and lawyers, and by 1970 had won the support of numerous feminist, religious, professional, student, and labor organizations.

Underpinning this support was a heretofore quiet and private tradition of accepting abortion as well as the frightening history of the injury and death of women seeking illegal abortions. During the century of illegal abortion, American women of every class, ethnic, religious, and racial background obtained abortions. By the 1960s, however, low‐income and nonwhite women were over‐represented among those who died from illegal abortions. As legal abortions replaced illegal and self‐induced abortions, maternal mortality fell and hospital septic abortion wards closed. In 1973, nearly 800,000 legal abortions were performed.

With the legalization of abortion nationwide, the pro‐life movement, an anti‐abortion campaign initially financed by the Catholic church and fundamentalist Protestants, grew in political power. This volatile issue was used to mobilize voters and swing elections at all levels. By the mid‐1990s, 80 percent of all U.S. counties had no abortion providers. The reduced availability of legal abortion was achieved by various means: political pressure; laws, such as those requiring women under eighteen to obtain parental permission; the elimination of state funding for abortions for low‐income women; and criminal anti‐abortion activity, including the bombing of clinics and the murder of abortion providers. Nonetheless, opinion polls found that a growing proportion of the population supported legal abortion.
See also Birth Control and Family Planning; Christian Coalition; Feminism; Fundamentalist Movement; Moral Majority; Roman Catholicism.

Bibliography

Carole Joffe , Doctors of Conscience: The Struggle to Provide Abortion before and after Roe v. Wade, 1995.
Leslie J. Reagan , When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973, 1997.

Leslie J. Reagan

Roe v. Wade (USA) The case that federalized the right of a woman to seek and obtain an abortion. Jane Roe (a pseudonym for Norma McCorvey, representing all pregnant women in a class action) had lost her job after becoming pregnant in 1969. She wished to end her pregnancy, but abortion was illegal in Texas except in cases of extreme danger to the mother. Two female attorneys were at that time seeking to overturn restrictions on the abortion laws, and recruited McCorvey to be a plaintiff. They attacked the abortion restrictions of Texas in the federal courts on the grounds that they undermined rights under the Fourteenth and Ninth amendments to the US Constitution (the due process and specific enumeration of powers clauses, the latter of which was taken to uphold a right to privacy). By 1971 the case had reached the Supreme Court, after a circuit court decision declared the Texas law unconstitutional without overturning it. After two new justices filled the vacant positions on the court, the case was reheard in 1972. Forty-two supplementary organizations filed briefs in support of a woman's right to abortion. The decision overturned all state laws restricting a woman's right to an abortion in the first three months of pregnancy and eased restrictions on abortions performed within six months of conception.

The judgment caused a storm of controversy which continued to divide US society for more than 30 years, with religious and conservative groups condemning both abortion and the court's decision, and liberal and feminist groups upholding both. In practice, the principle of the ‘right to choose’ established by Roe has been undermined by a series of political and legal decisions. Among the obstacles thus established are the Hyde Amendment banning federal Medicaid funds from funding abortions for women on low incomes (in 2002, only nineteen states assisted low-income women with the costs for abortions). In 1992 the Casey v. Planned Parenthood ruling by the Supreme Court qualified the ‘right to choose’ by ruling that individual state restrictions on abortion were legal as long as they did not impose an ‘undue’ burden on women. The issue of abortion became one of the most acrimonious political and cultural issue of the 1980s and 1990s. It caused a fundamental and seemingly irreconcilable split in the Republican Party while contributing to the hostility between conservatives and liberals, especially during the second half of the 1980s and the 1990s.

ROE v. WADE

Opinion of U.S. District Court, N.D. Texas, June 17, 1970 . . . . . . . .499

Briefs to the U.S. Supreme Court

Brief for Appellant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .505

Brief for Appellee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .517

Supplemental Brief for Appellants . . . . . . . . . . . . . . . . . . . . . . . .535

Opinion of the Supreme Court, January 22, 1973 . . . . . . . . . . . . . .542

ISSUE

Abortion

HOW TO USE MILESTONES IN THE LAW

This section allows readers to investigate the facts, the arguments, and the legal reasoning that produced the Roe v. Wade decision. It also sheds light on the roles and required skills of attorneys and judges in resolving disputes.

As you read this section, you may wish to consider the following issues:

• How did the appellant's description of the issues before the Court, or questions presented, differ from the appellee's descriptions?
• How did the courts and the two parties differ in describing the meaning of particular prior cases to the present case?
• How did the holdings (conclusions of law) of the district court differ from those of the Supreme Court?
• On what points in the Supreme Court's majority opinion do the concurring and dissenting justices agree and disagree?
• How would you decide this case?

THIS CASE IN HISTORY

Roe versus Wade may be the most well known and the most controversial decision of the modern Supreme Court. With this decision, the Court recognized a woman's right to obtain an abortion under certain circumstances. Virtually from the moment it was handed down, Roe v. Wade has divided lawyers, politicians, and the public into those who support the decision and those who would like it overturned, either by the Supreme Court itself or by act of the legislature. A judge's or politician's position on the subject of abortion has played a major role in countless appointments and elections. After the decision and for the rest of his life, the opinion brought its author, Justice Harry Blackmun, an unending stream of mail both praising and vilifying him for the decision.

Roe v. Wade case decided in 1973 by the U.S. Supreme Court. Along with Doe v. Bolton, this decision legalized abortion in the first trimester of pregnancy. The decision, written by Justice Harry Blackmun and based on the residual right of privacy, struck down dozens of state antiabortion statutes. The decision was based on two cases, that of an unmarried woman from Texas, where abortion was illegal unless the mother's life was at risk, and that of a poor, married mother of three from Georgia, where state law required permission for an abortion from a panel of doctors and hospital officials. While establishing the right to an abortion, this decision gave states the right to intervene in the second and third trimesters of pregnancy to protect the woman and the "potential" life of the unborn child. Denounced by the National Council of Bishops, the decision gave rise to a vocal antiabortion movement that put pressure on the courts and created an anti-Roe litmus test for the judicial appointments of the Reagan and Bush administrations (1981-93). In a 1989 case, Webster v. Reproductive Health Services, the court, while not striking down Roe, limited its scope, permitting states greater latitude in regulating and restricting abortions. Then in 1992, in Planned Parenthood v. Casey, the court reaffirmed the abortion rights granted in Roe v. Wade, while permitting further restrictions.

Bibliography: See N. McCorvey with A. Meisler, I Am Roe (1994).