Case

During Second Wave feminism, which developed from the 1960s through the 1980s, many women tried to combat traditional gender roles, which often forced them to stay in the house. The movement included advocates for reproductive rights, many of whom aimed to challenge abortion restrictions in the United States. Most states at the time had some restrictions on a woman’s ability to receive an abortion. 

Norma McCorvey had already given birth twice when she got pregnant in 1969. McCorvey was twenty-two years old, unmarried, and unemployed. McCorvey alleged that she was raped, which led to her pregnancy. McCorvey was unable to receive a legal abortion under Texas law, which only allowed a doctor to perform an abortion to save “the life of the mother.” McCorvey decided to seek an abortion from an underground doctor but decided not to go through with it when she saw the office’s horrible conditions, as it was filled with dirt and pests. She wanted a legal abortion, so while using the pseudonym Jane Roe, McCorvey sought an injunction against Henry Wade. Wade was the state attorney for Dallas County, Texas. McCorvey’s lawyers claimed that the Texas state law prohibiting abortion was unconstitutional. The Supreme Court was asked to determine if the Constitution recognizes a woman’s right to end her pregnancy. 

Decision

In a 7-2 decision, the Court decided that Texas’ abortion ban was unconstitutional. Justice Harry Blackmun wrote the opinion. Republican President Richard Nixon appointed Justice Blackmun, who became more liberal throughout his tenure on the Court. Blackmun was assigned to write Roe’s opinion because he was once the head lawyer of the Mayo Clinic, one of the most esteemed healthcare companies and medical centers in the United States. 

Justice Blackmun extended the right to privacy established in Griswold v. Connecticut (1965), a case that established the right of married couples to use contraceptives, to abortion. While the Court did not determine where the right to privacy specifically lies in the Constitution, Justice Blackmun wrote that whether it be the 14th Amendment or the 9th Amendment, the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 

The decision tried to balance the interest in the life of the mother and the potential life of the fetus. The majority decided that a fetus does not have the same rights as a human person until birth. The Court acknowledged the dangers of a different ruling, noting the high mortality rates at “abortion mills.” Justice Blackmun argued that the state should regulate abortions for the safety of the woman. He also wrote that: “The detriment that the State would impose upon the pregnant woman by denying this choice is altogether apparent,” acknowledging that maternity and motherhood “may force upon the woman a distressful life and future.”

While the Court did not specify a point where life begins, it laid out a trimester framework for abortions. During the first trimester, weeks one to twelve, when abortions are most safe, the decision is completely up to the woman and her doctor. During the second trimester, weeks twelve to twenty-four, when abortions can be riskier, states can place restrictions on abortion but not ban it outright. And finally, during the third trimester, weeks twenty-four to thirty-six, when abortions are the riskiest, the states can but are not required to ban abortions. 

Dissent

Justice Byron White dissented, arguing that the Court made the decision arbitrarily. He refused to recognize the right to privacy, which he said was not in the Constitution. Justice William Rehnquist also dissented, attacking the Court’s decision. He noted that there should be minimal scrutiny given to the right to privacy, and states can limit abortions how they would like to.

Impact

Norma McCorvey went on to become an evangelical Christian and abortion opponent in 1995. However, it was later discovered that she was paid hundreds of thousands by an anti-abortion group to do so. McCorvey claimed that after the group paid her, she would say what they wanted in front of the press. McCorvey gave up two of her children for adoption. She died in 2017 of heart failure, at the age of seventy. 

Roe v. Wade, while never overturned, remains one of the most controversial decisions in Supreme Court history. After the decision in 1973, the backlash was strong from the Right to Life movement, which became mobilized. In 1992, the Court decided in Planned Parenthood of Southeastern Pennsylvania v. Casey to throw out the Roe trimester framework. The Casey framework instead focuses on viability. Before viability, a state can regulate abortions, as long as the restrictions do not place an undue burden. After viability, a state is free to regulate and ban abortion, excluding cases where the mother’s life is in danger. States have continued to shrink the meaning of an “undue burden,” and it has become increasingly difficult to have an abortion. 

Justice Ruth Bader Ginsburg, a steadfast liberal feminist, has an interesting take on the Roe decision. Ginsburg argues that by centering the case around the right to privacy instead of equal protection, “Roe isn’t really about the woman’s choice, is it?” However, Ginsburg notes that if the Court ever overturned Roe, it would most negatively impact the lives of poor women in red states, who could not afford to travel out of state to receive an abortion, leaving them with little choice. 

Potential justices’ feelings towards Roe are often mentioned in Senate confirmation hearings for Supreme Court Justices. In 1987, Judge Robert Bork’s nomination to the Supreme Court failed in part because he would have reversed the Roe decision if given the chance. Politicians are often asked to give their views on abortion rights, and Roe specifically.

    Learn More

    1. Gillman, Howard. American Constitutionalism, Second Edition. Volume II Rights and Liberties. [Virtual Source Bookshelf].
    2. Heagney, Meredith. “Justice Ruth Bader Ginsburg Offers Critique of Roe v Wade During Law School Visit.” The University of Chicago Law School. (May 15, 2013). Available at: https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit.
    3. Lozano, Alicia Victoria. “Anti-abortion rights movement paid ‘Jane Roe’ thousands to switch sides, documentary reveals.” NBC News (19 May 2020) https://www.nbcnews.com/news/us-news/anti-abortion-movement-paid-jane-roe-thousands-switch-sides-documentary-n1210826. 
    4. “Roe v. Wade.” Oyez, www.oyez.org/cases/1971/70-18.
    5. “Roe v. Wade (1973)” Thirteen https://www.thirteen.org/wnet/supremecourt/personality/landmark_roe.html.

    Think Further

    1. Do you agree with the Roe framework, the Casey framework, or neither? 
    2. Should reproductive rights be founded in the right to privacy, equal protection, or neither?
    3. Why do you think the Roe decision is still so controversial?

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