1.1Who was Roe?
In 1970, a Texas woman named Norma McCorvey sought to terminate her pregnancy, but was blocked by state law. This was McCorvey’s third pregnancy; her first child was raised by her mother, and her second child was put up for adoption. She found Linda Coffee and Sarah Weddington, two Texas lawyers who wanted to bring a suit challenging the Texas statute restricting abortion access. To protect her privacy in the case, she was recorded in court documents under the pseudonym Jane Roe.
1.2What was abortion law like then?
At the time, abortion law was a complex national patchwork. Four states had repealed anti-abortion laws completely, and 13 states had reformed abortion laws to allow for certain circumstances beyond a danger to the woman’s health, known as the ALI model (after the American Law Institute, which proposed the model). The remaining 37 states had much stricter regulations on the procedure. Crossing state lines for an abortion was not uncommon for women who could afford such travel. In 1972, the year before the Court decided Roe, an estimated 100,000 women traveled to New York, the only state that did not have a residency requirement. Most women who could not afford the trip had to carry their pregnancy to term, but by some estimates, upwards of 200,000 women per year performed dangerous self-abortions.
1.3What had the Supreme Court decided up to that point?
- Griswold v. Connecticut (1965): States may not restrict a married couple’s ability to be counseled on and access contraception. This landmark case was the first to articulate a Constitutional right to privacy.
- Eisenstadt v. Baird (1972): Unmarried individuals may not be denied counsel on or having access to contraception. This decision relied on the Equal Protection Clause of the Constitution's Fourteenth Amendment, protecting the rights of unmarried individuals.
- United States v. Vuitch (1971): A DC law that prohibited abortion unless “necessary for the preservation of the mother’s life or health” was not unconstitutionally vague. The Court also found that the burden of proof in finding an abortion unnecessary was on the prosecution.
1.4What was the law being challenged?
At the time, Texas’ statute was very strict. Abortion was criminalized, so doctors faced fines or even jail time if they performed an abortion. There was, however, an exception for when the life of the mother was in danger.
1.5What was the challengers’ case?
The petitioners’ argument rested on the right to privacy the Court had previously articulated in Griswold. Two points, in particular, were emphasized:
- Physicians’ rights. There were no other common medical procedures that doctors could be punished for performing. The Texas statute required physicians to determine whether a woman’s life was at risk, permitting them to perform an abortion. Overall, the laws were vague enough to worry doctors about the legality of the procedure in each case.
- Disruption of woman’s life. At the time, women could be asked to leave their jobs when they got pregnant, and maternity leave was not generally offered. There was no legal requirement for employers to rehire these women after they gave birth.
1.6Why was Roe argued twice?
When the case was first heard on December 13, 1971, the Supreme Court was two justices short. There were still enough justices present to hear the case, but nonetheless the Court was not at full strength. Although they heard the case and voted on it, they decided it was an important issue that should be heard by a full bench. It was scheduled for reargument on October 11, 1972, after Justices Lewis Powell and William Rehnquist joined the Court.
1.7What was the Supreme Court like then?
Warren Burger succeeded Earl Warren and became Chief Justice in 1969. In its early years, the Burger Court continued in the liberal rulings of its predecessor. But President Nixon's appointees were gradually moving the Court in a more conservative direction. It is important to note, however, that when Roe was argued, abortion had not yet become the divisive issue along party lines that it is today.
1.8What happened at oral arguments?
Sarah Weddington, the advocate for Roe, argued that the law was unconstitutional, citing the Ninth Amendment, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and privacy. She also argued that, if the law is intended to protect the fetus, why are doctors punished instead of the woman seeking the abortion? She also brought up the danger of self-abortion and the need for medical expertise.
Jay Floyd, the advocate for Texas in the first case, started out with a joke that fell flat. He argued that the state had an interest in protecting its future citizens, and in protecting the safety of the mother. Robert C. Flowers, who argued for Texas when the case was reargued, continued this line of argument and defended the punishment for abortion providers.
1.9What did the decision say?
Roe v. Wade established two major things. First, states could not regulate abortions during the first trimester, because it represented a private medical decision between a woman and her doctor. This was grounded in the right to privacy, but for the doctor more than for the woman. The other major holding was that states could regulate abortion later on in pregnancy. After the first trimester, they could regulate the procedure to protect the health of the mother, and in the viability stage, the state could regulate or prohibit abortion and to preserve the potential life (with exceptions for the health of the mother). Overall, Roe focused on a discussion of the privacy of the physician rather than on a woman’s private right to an abortion.
The decision was written by Justice Harry Blackmun, who had once considered becoming a doctor and, before he became a justice, spent almost ten years as the resident counsel for the Mayo Clinic. Justice Blackmun’s background is often cited as an explanation for his emphasis on the rights of medical practitioners.
1.10What did the dissents say?
Justice Byron R. White argued that the right to an abortion was not in the Constitution. He considered the decision to get an abortion as a “convenience” and placed more weight on the rights of the fetus.
Justice William H. Rehnquist’s dissent questioned the majority’s reasoning on privacy grounds. He also argued that this was an issue best left to the states, not the Federal government - which many opponents of abortion have argued before and since. Essentially, his dissent argued that abortion was not a constitutional right.
1.11What happened next?
Justice Blackmun unintentionally became a symbol of the women’s rights movement. While he initially distanced himself from the issue, he eventually came to embrace the cause.
Norma McCorvey, or Jane Roe, had her child long before the case reached the Supreme Court. After being given up for adoption, the identity of the child has remained private. McCorvey was baptized into the Catholic church in 1998 and is now a strong pro-life activist. In 2003, she filed suit in federal court to void the judgment in Roe v. Wade. The court found that since over 30 years had passed since the decision, it was unreasonable to reopen the case. The Fifth Circuit upheld the lower court’s decision, and the Supreme Court declined to hear the case.
Public opinion since the decision has remained widely divided. Justice Blackmun received many letters of thanks from women around the country, but also approximately 80,000 hate letters. Even some proponents of abortion rights have been critical of Roe. Justice Ruth Bader Ginsburg has said, “My criticism of Roe is that it seemed to have stopped momentum on the side of change.” In other words, the decision came too soon, before a majority of public opinion came to support the cause. In fact, when the decision came down, 45 states were considering legislation to reform their abortion laws in some way.
The Supreme Court heard many challenges related to abortion in the years following Roe. These included Planned Parenthood v. Danforth (1976), City of Akron v. Akron Center for Reproductive Health (1983), and Thornberg v. American College of Obstetricians and Gynecologists (1986).
1.12Video: How did the Supreme Court establish the right to privacy used in Roe v. Wade?
- Although Roe v. Wade has not been overturned, the trimester framework it established is no longer the law of the land. Later decisions at the Supreme Court and legislation passed in Congress have shifted its guarantees and protections.
- Roe v. Wade’s opinion focuses on the protection of doctors’ rights much more than it does on women’s rights.