Roe v. Wade (1973)

Summary

Roe v. Wade was a Supreme Court case that expanded the “right to privacy” and determined that women have protected constitutional rights to make their own decisions regarding their pregnancy. In light of the sexual revolution during this time, Roe v. Wade divided the nation between ethics and faiths.

Using the 14th Amendment the U.S. Supreme Court voted 7-2, in favor of Jane Roe. The Court’s ruling is still seen as the landmark case that solidified the basic rights to privacy and choice for women that were not explicitly protected before this case. The trimester test that the Court designed in Roe v. Wade was later changed to the viability test in the case Planned Parenthood v. Casey.

Timeline 1

Background

During the 1960’s to the 1970’s, a new morality began to spread throughout America. Feminism and the sexual revolution combined to shift public opinion toward legalizing abortion as an equality standard. However, most states had adopted strict laws against abortion, only making it available to women whose lives were in danger without it. Roe v. Wade pressured the Supreme Court and divided much of the public, questioning the law and equality of choice for women.

Abortion laws had only been enacted throughout America during the later half of the nineteenth century, but the history of criminalizing abortions runs longer than that. Abortion for the protection of the life of the mother had been law in England since 1803, with harsh penalties for aborting a fetus that was viable or “quick.” While this law did not last, it was eventually recreated in 1861 and lasted until 1967. It is from these English statutory laws that the idea of criminalizing abortions unless the life of the mother is at stake first arose.

In the United States, English common law did not stand until Connecticut established the first abortion law in 1821. The Connecticut law also included the portion of the 1803 law involving a “woman quick with child.” The penalties for aborting a quick fetus were much more severe than aborting a child who was not quick. However, towards the later half of the nineteenth century and due to pressures from the American Medical Association, abortion laws became much more draconian. Penalties increased while the quickening provision disappeared. Almost all of the laws in that period outlawed all abortions that did not risk the life of the woman. 

However during the 1960s, a wave of liberalization appeared on the abortion issue. Before Roe v. Wade was brought before the court, one-third of states had relaxed their abortion regulations; a small few even completely decriminalized getting an abortion. The Catholic Church, a longtime proponent of anti-abortion laws, was incensed. They began the right-to-life movement, which later turned into the pro-life movement, in order to combat abortion reform. The Church began a grassroots campaign by using ministers to mobilize their congregations, but as that did not prove very effective, they began to look for Constitutional protections to unborn fetuses in order to further criminalize abortion.

Feminists on the other hand, had taken abortion as their rallying cry; the right of a woman to control her own body had a direct impact on her career goals and social well-being. The more extreme feminists wanted to allow abortions regardless of the fetus’s viability as long as the mother wanted an abortion. That was not very acceptable to the population at large, who accepted abortions were sometimes necessary but did not support outright decriminalization.

Finally, another group in the United States was against the feminists idea of unregulated abortion, but also recognized circumstances where abortion was acceptable. In one case, the face of a popular children’s show Sherri Chessen Finkbine was pregnant with a wanted child. However, she had taken a sleeping pill that, in Europe, caused children to be born without arms or legs. She had to leave the country in order to abort the fetus, but her case began a conversation about restructuring abortion laws to help both mother and child.

It was in this tumultuous political climate that Roe v. Wade was heard and decided.

Due to the strict laws on abortion it was common for women to travel to states where it was legal, making abortion much more difficult to access for poor women. Many women who wanted an abortion but could not legally or afford to go to another state for the operation, would perform abortions on their own that lead to a “high U.S. maternal mortality rate.”

Jane Roe, pregnant and single wanted to have an abortion in Texas, but Texas laws against abortion made it a felony. Unable to afford travel expenses to get an abortion in another state, Roe filed suit to contest Texas abortion laws.

Procedural History

United States District Court for the Northern District of Texas
After failing to circumvent the Texas’ regulations on abortions, Norma McCorvey (Jane Doe) reached out to her attorneys, who filed the complaint with the U.S District Court for the Northern District of Texas on McCorvey’s behalf. A panel of three judges heard the case in June, 1970. The Court declared the Texas Abortion laws unconstitutional on the Ninth Amendment ground. They, however, refused to grant McCorvey injunctive remedy, citing the precedents that suggest the federal judiciary to not interfere with states’ proceedings on declaratory judgements.

Supreme Court of the United States
The appeal reached the Court’s docket in the same year, and was granted a hearing on April 22nd, 1971. The first round of arguments took place on December 13rd. The Justices heard rearguments ten months later on October 11th, 1972. The case was ultimately decided on January 22nd, 1973. The Court struck down the Texas abortion statutes and similar laws across state lines. It upheld in parts and reversed in parts the lower court’s decision.

Issues

Where does the Constitution guarantee the right to privacy?

Does the Constitutional right to privacy encompass a woman’s right to terminate her pregnancy?

If abortion is a part of the right to privacy, does the right to privacy encompass all abortions?

Decision

In a landmark 7-2 decision, the Court held that the right to an abortion is a fundamental right in accordance to the Due Process Clause under the XIV Amendment. The Texas statutes, as well as many other in almost all of the states, that make it a crime to assist a woman to terminate her pregnancy was declared unconstitutional and the Court said that the states’ efforts to regulate it must survive the scrutiny of “compelling state interest.” Associate Justice Harry Blackmun delivered the majority opinion on behalf of the court, joined by Chief Justice Burger, and associate Justices Brennan, Stewart, Marshall, Douglas and Powell. Justices Burger, Douglas and Stewart concurred in judgement, while Justices Rehnquist and White dissented; White’s dissent joined by Rehnquist.

The Court validated some of those anti-abortion laws by using the trimester test; during the first trimester, a state cannot regulate abortions. As the woman moves to the second and third trimester, states are allowed to regulate abortions because the fetus is more viable and the procedure more dangerous for the woman. While Roe v. Wade was just about the woman’s right to terminate her pregnancy, the Court used this case to codify the right to privacy they said was guaranteed to the people in Griswold v. Connecticut. Rather than being implied in many places of the Constitution as they said in Griswold, the Court in Roe decided that the Due Process Clause of the Fourteenth Amendment was the source of the right to privacy.

Majority Opinion (Blackmun)

Justice Blackmun wrote the majority opinion, which was joined by Justices Burger, Powell, Douglas, Brennan, Marshall and Stewart. Basing his opinion on legal-medical history, new discoveries and the evolution of views surrounding the topic of abortion, Blackmun asserted that the right to an abortion is protected under the Fourteenth Amendment, and therefore the Texas statutes and other state statute of its kind violate the Constitution.

Although he acknowledge the arguments concerning inception of life are unsettled, Blackmun cites the studies that reveal abortions during the first trimester are safer than childbirths. He also reject the anti-abortion camp’s rationale is that life begins at conception as the fetus cannot survive at this stage on its own. Blackmun decided that choosing whether or not to terminate one’s pregnancy during the the first trimester was a matter of privacy between the mother and the physician, and should be virtually uninfringed. However, Blackmun also dismissed the notion that the right to an abortion is absolute, claiming it has been rejected by previous precedents. He assert that the “compelling state interests” of protecting the well-being of the mother and the potentiality of human life could justify broadening regulations throughout the later stages of pregnancy.

Concurring Opinion (Burger)

In a brief concurrence, Chief Justice Burger for the most parts agreed with the Majority opinion’s holding that the Texas statutes and the similar ones in Georgia violated the Due Process Clause of the Fourteenth Amendment. Burger, however, expressed minor concerns that “Court has taken notice of various scientific and medical data reaching its conclusion”.

He also differed with the Majority regarding state’s regulations on personnel performing abortions, asserting that regulations found in Texas and Georgia statutes were not “unduly burdensome”.

Concurring Opinion (Douglas)

Referring back to a previous case, Griswold v. Connecticut, the Supreme Court held that forbidding contraceptives is unconstitutional under the Bill of Rights and zones of privacy. The lower courts set precedent in Doe v. Bolton for other cases dealing with contraceptives and abortions, that broadened the right to privacy enough to allow women to chose. The Constitution gives women the freedom to make the decision whether to keep an “unwanted child,” since going through with childbirth can take away the life that the woman intended on. Although, this is critical it is also in the State’s interest to protect the life of the fetus if is seen to have acquired life. Creating laws that prohibit the right to chose can be potentially dangerous to both the woman and the fetus, so Douglas found that the mother has the right to chose, taking in count of the fetus if it “acquired life.”

“In short, I agree with the Court that endangering the life of the woman or seriously and permanently injuring her health are standards too narrow for the right of privacy that is at stake.
I also agree that the superstructure of medical supervision which Georgia has erected violates the patient’s right of privacy inherent in her choice of her own physician”

Concurring Opinion (Stewart)

Justice Stewart’s opinion was unique seeing as he dissented in Griswold v. Connecticut on the grounds that the opinion marked a return to substantive due process, which he thought was not sound judicial policy. In his concurrence for Roe v. Wade, he wrote that he favored protecting the abortion right under privacy and cited several cases under privacy that he found were significantly less important than a woman’s right to privacy regarding abortion (i.e. the right to send a child to private school and the right to have one’s child taught a foreign language).

He Wrote:

“The ‘freedom of personal choice in matters of marriage and family life is one of the liberties protected by the due process clause of the 14th Amendment.”

Dissenting Opinion (White)

Per Justice White, the rationale of the Majority is that Constitution values the convenience of the mother during the early phases of the fetus’s development, therefore the Constitution protects her right to have an abortion against states’ ban on abortions with reasons other than protecting the mother’s health. But he argues that such right cannot be found anywhere in the Constitution, and that the Court “simply fashions and announces a new constitutional right for pregnant mothers and, […] with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes”.  He concedes that this is an “exercise of raw judicial power”, but laments that the Court has overstepped the authority given by the Constitution.
White contends that abortion is such a sensitive issue that each person’s opinion could differ greatly. Therefore, he believes, rather than having the Court supersede the statutes of the states regarding this issue, the decision should be left to the people and the legislatures of their states.

Dissenting Opinion (Rehnquist)

Justice Rehnquist points out that while the Majority decided that states cannot restrict abortions during the first trimester of the pregnancy, the plaintiff was never in the first trimester throughout the course of the trial. He believes that the Court has abandoned a long standing tradition by deciding this case.

Rehnquist also argues that the Court makes a mistake by ruling that the right to an abortion falls under the right to privacy because the transaction between a licensed physician and a client is not “private” according to the common understanding of the word. He further asserts that if the Majority reasons “private” as liberty from state regulations, then according to previous assertions of the Court, the right to an abortion is not absolute against all deprivation, and only restrictions without Due Process are unconstitutional.

 Moreover, he contends that the Texas laws under questions should not be subjected by the “strict scrutiny” test, the most rigid standard of judicial review for which a compelling state interest must be demonstrated for a law to be deemed constitutional. Rehnquist states that the statutes should rather have been reviewed under a much more relaxing standard of state’s “rational relation”.

Full Text of Opinions

Significance / Impact

When the Supreme Court Justice ruled on Roe’s behalf, the decision overturned preexisting Texas laws on abortion. Presented by Justice Harry Blackmun, Roe v. Wade became the landmark case that stood for women’s constitutional rights to privacy.

However, parameters were created for the “different levels of state interest” while being narrow enough to be constitutional. Women have full sovereignty during the first trimester of her pregnancy, but due to health concerns for the mother, states may regulate abortions for 2nd and 3rd trimester pregnancies. The Court used the strict scrutiny test to distinguish then if such abortions are in the women’s best interest based on her health and the fetus.

By voting in favor of Jane Roe, the Court set precedent by extending the meaning of right to privacy. This specific right to have the autonomy to terminate a pregnancy was not plainly written in the Constitution, but could be found inherently in the 14th Amendment. The Amendment emphasized on that “although the right is not listed in the Constitution, it does not mean it is not retained and protected.

Many women rights advocates see Roe v. Wade as the landmark case that furthered and preserved rights for women. Although it emphasized women’s rights within the constitutional boundaries, this case’s main focus was mainly on the privacy of the woman’s physician.

Timeline 2

Scholarly Commentary and Debate

Constitutional Provisions

Due Process Clause of the XIV Amendment:
      […] No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Major Statute(s) Under Review

Articles 1191-1194 and 1196 of the Penal Code of the State of Texas, 1961.


    *Article 1991:

If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, […], and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years if it be done without her consent, the punishment shall be doubled. […]

   *Article 1992:

Whoever furnishes the means for procuring an abortion knowing the purpose intended is an accomplice.

   *Article 1993:

If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, […], and shall be fined not less than one hundred nor more than one thousand dollars.

   *Article 1994:

If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder

   *Article 1996

Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother

Important Precedents

Griswold v. Connecticut (1965)
_The Supreme Court invalidated a Connecticut statute that banned the use of contraceptives, noting it as “governmental intrusion” to marital privacy found in the penumbras of the Bill of Rights.

Eisenstadt v. Baird (1972)
_The Supreme Court struck down a Massachusetts statute that prohibited the distribution of contraceptives to unmarried couples, ruling it as a violation of the Equal Protection Clause.

Important Subsequent Cases

Webster v. Reproductive Health Services (1989)

Planned Parenthood v. Casey (1992)

Gonzales v. Carhart (2007)

Whole Woman’s Health v. Hellerstedt (2016)

Web Resources

Brief for Appellant – Statutes Involved – Abortion, Texas, Penal, and Code – JRank Articles. Available here.

Linder, Doug. “Right to an Abortion?” The Right to an Abortion. Web. 01 May 2017. Available here.

McBride, Alex. “The Supreme Court: Roe v. Wade.” PBS. Public Broadcasting Service. Web. 01 May 2017. Available here.

Roe v Wade: 40 Years On… The Legal History & Future of Reproductive Rights. Dir. The American Law Journal. The American Law Journal, 25 Feb. 2013. Web. 1 May 2017. Available here.

“Roe v. Wade Fast Facts.” CNN. Cable News Network, 23 Apr. 2017. Web. 01 May 2017. Available here

Roe v. Wade in PBS’ “The Supreme Court”. Youtube. PBS, 1 Dec. 2008. Web. 1 May 2017. Available here.

“Roe v. Wade.” Planned Parenthood Action Fund. Planned Parenthood, n.d. Web. 01 May 2017. Available here.

Supreme Court Justices on Roe v. Wade. Dir. PrevailVideos. Youtube. Prevail Videos, 16 Nov. 2014. Web. 1 May 2017. Available here.

Academic Books, Articles and Law Reviews

“Abortion: Roe v. Wade…Doe v. Bolton.” Journal of Criminal Law and Criminology 64.4 (1973): 393-98. Northwestern Law School. Web. 1 May 2017. Available here. 

Greenhouse, Linda, and Reva B. Siegel. “Before Roe v. Wade: Voices That Shaped the Abortion Debate before the Supreme Court’s Ruling.” New Haven, CT: Yale Law School, 2012. Yale Law School. Web. 1 May 2017. Available here.

Ruth B. Ginsburg. “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade.” 63 N.C. L. Rev. 375 (1985). Available here.

Ziegler, Mary. “Beyond Backlash: Legal History, Polarization, and Roe v. Wade.” Washington and Lee Law Review 71.2 (2014): 969-1021. Web. Available here.

Contributors

Spring 2017: Bao Dinh, Helen Chin, Nicholas Bloom, Myicia Wheat