Roe v. Wade

Roe v. Wade, 410 U.S. 113 (1973),was alandmark decisionof theU.S. Supreme Courtin which the Court ruled that theConstitution of the United Statesprotected the right to have anabortionprior to the point offetal viability. The decision struck down manyState abortion laws, and it sparked an ongoingabortion debatein the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role ofmoralandreligious viewsin the political sphere should be.The decision also shaped debate concerning which methods the Supreme Court should use in constitutionaladjudication.
The case was brought byNorma McCorvey—under the legal pseudonym "Jane Roe"—who, in 1969, became pregnant withher third child. McCorvey wanted an abortion but lived inTexaswhere abortion was only legal when necessary to save the mother's life. Her lawyers,Sarah WeddingtonandLinda Coffee, filed a lawsuit on her behalf in U.S. federal court against her localdistrict attorney,Henry Wade, alleging thatTexas's abortion lawswere unconstitutional. A specialthree-judge courtof theU.S. District Court for the Northern District of Texasheard the case and ruled in her favor.The parties appealed this ruling to the Supreme Court. In January 1973, the Supreme Court issued a 7–2 decision in McCorvey's favor holding that theDue Process Clauseof theFourteenth Amendment to the United States Constitutionprovides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion. However, it also held that the right to abortion is not absolute and must be balanced against the government's interest in protecting both women's health and prenatal life.It resolved these competing interests by announcing apregnancy trimestertimetable to govern all abortion regulations in the United States. The Court also classified the right to abortion as "fundamental", which required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the most stringent level of judicial review in the United States.
The Supreme Court's decision inRoewas among the most controversial in U.S. history.Roewas criticized by some in the legal community,including some who thought thatRoereached the correct result but went about it the wrong way,and some called the decision a form ofjudicial activism.Others argued thatRoedid not go far enough, as it was placed within the framework ofcivil rightsrather than the broaderhuman rights.The decision also radically reconfigured the voting coalitions of theRepublicanandDemocraticparties in the following decades. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision;polls into the 21st century showed that a plurality and a majority, especially into the late 2010s to early 2020s, opposed overrulingRoe.Despite criticism of the decision, the Supreme Court reaffirmedRoe's central holding in its 1992 decision,Planned Parenthood v. Casey.CaseyoverruledRoe'strimester framework and abandoned its "strict scrutiny" standard in favor of an "undue burden" test.
In 2022, the Supreme Court overruledRoeinDobbs v. Jackson Women's Health Organizationon the grounds that thesubstantive rightto abortion was not "deeply rooted in this Nation's history or tradition", nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law untilRoe.
Abortion was a fairly common practice in the history of the United States, and was not always a public controversy.At a time when society was more concerned with the serious consequences of women becoming pregnant out of wedlock, family affairs were handled out of public view.The criminality of abortion at common law is a matter of debate by historians and legal scholars.
In 1821,Connecticutpassed the first state statute legislatingabortion in the United States;it forbade the use of poisons in abortion.After the 1840s, there was an upsurge in abortions. In the 19th century, the medical profession was generally opposed to abortion, which Mohr argues arose due to competition between men with medical degrees and women without one. The practice of abortion was one of the first medical specialties, and was practiced by unlicensed people; well-off people had abortions and paid well. The press played a key role in rallying support for anti-abortion laws.According to James S. Witherspoon, a former briefing attorney for the Court of Appeals for the Third Supreme Judicial District of Texas, abortion was not legal before quickening in 27 out of all 37 states in 1868;by the end of 1883, 30 of the 37 states, six of the ten U.S. territories, and theKingdom of Hawaiʻi, where abortion had once been common,had codified laws that restricted abortion before quickening.More than 10 states allowed pre-quickening abortions, before the quickening distinction was eliminated,and every state had anti-abortion laws by 1900.
In the United States, before specific statutes were made against it, abortion was sometimes considered acommon law offense, such as byWilliam BlackstoneandJames Wilson.In all states throughout the 19th and early 20th century, pre-quickening abortions were always considered to be actions without a lawful purpose. This meant that if the mother died, the individual performing the abortion was guilty of murder. This aspect of common law regarded pre-quickening abortions as a type ofinchoate offense.Negative libertyrights from common law do not apply in situations caused by consensual or voluntary behavior, which allowed for abortions offetusesconceived in a consensual manner to be common law offenses.The majority opinion forRoe v. Wadeauthored in JusticeHarry Blackmun's name would later state that the criminalization of abortion did not have "roots in the English common-law tradition",and was thought to return to the more permissive state of pre-1820s abortion laws.One purpose for banning abortion was to preserve the life of the fetus,another was to protect the life of the mother, another was to create deterrence against future abortions,and another was to avoid injuring the mother's ability to have children. Judges did not always distinguish between which purpose was more important.Rather than arresting the women having the abortions, legal officials were more likely tointerrogatethem to obtain evidence against the individual doing the abortions.This law enforcement strategy was a response to juries which refused to convict women prosecuted for abortion in the 19th century.In 1973, Justice Blackmun's opinion stated that "the restrictive criminalabortion lawsin effect in a majority of States today are of relatively recent vintage".
During the 1960s and early 1970s, opposition to abortion was concentrated among members of the political left and the Democratic Party, althoughfeministswithin predominately supported legalization. Most liberalCatholicsandMainline Protestants(both of which tended to vote for the Democratic Party) opposed liberalizing laws surrounding abortion while most otherProtestants, includingevangelicals, supported doing so as a matter ofreligious liberty, what they sawas a lackofbiblical condemnation, and belief innon-intrusive government.
By 1971, elective abortion on demand was effectively available in Alaska, California, Hawaii, New York, Washington, and Washington, D.C.Some women traveled to jurisdictions where it was legal, although not all could afford to.In 1971, Shirley Wheeler was charged withmanslaughterafter Florida hospital staff reported her illegal abortion to the police. Wheeler was one of a few women who were prosecuted by their states for abortion.She received a sentence of two yearsprobation, and as an option under her probation, chose to move back into her parents' house in North Carolina.ThePlayboy Foundationdonated $3,500 to her defense fund andPlayboydenounced her prosecution.The Boston Women's Abortion Coalition raised money and held a rally where attendees listened to speakers from the Women's National Abortion Action Coalition (WONAAC).Her conviction was overturned by theSupreme Court of Florida.
Sarah WeddingtonrecruitedLinda Coffeeto help her with abortion litigation. Their first plaintiffs were a married couple; they joined after the woman heard Coffee give a speech.The intended suit would state abortions were medically necessary for the woman. The woman had a neurochemical disorder and it was considered medically necessary that she not give birth or raise children, yet they did not want to abstain from sex, and contraception might fail.The attorneys were concerned about standing since the woman was not pregnant. Weddington later wrote that they "needed to find a pregnant Texas woman who wanted an abortion and would be willing to be aplaintiff."They also wanted to increase the likelihood that thepanel selectionwould help them win in court. They wanted to present their case to a three-judge panel which included a judge they thought would be sympathetic,which was a possibility only by filing a case in Dallas.If either of the two cases they filed in Dallas were assigned favorably, they intended to ask for the other one to be consolidated with it.
At first, Weddington was unsuccessful in finding a suitable pregnant woman.In June 1969, 21-year-oldNorma McCorveydiscovered she was pregnant with her third child.Ordinarily, lawyers are not allowed to directly solicit clients without any prior relationship, but McCorvey's situation qualified for an exception in theno solicitation rulewhich allows lawyers to solicit new clients forpublic interestcases.According to a sworn statement made in 2003, McCorvey asked if she had what was needed to be part of Weddington and Coffee's lawsuit. She recounted being told, "Yes. You're white. You're young, pregnant, and you want an abortion."Both McCorvey'swhitenessand her lower social class were crucial factors in the attorneys' choice to have her as their plaintiff.
McCorvey recounted that the lawyers asked if she thought abortion should be legal. McCorvey said she did not know. Weddington told her, "It's just a piece of tissue. You just missed your period." This convinced McCorvey that abortion should be legal.She agreed to let them represent her under the impression that she would be able to eventually get a legal abortion.She smoked an illegal drug and drank wine so she would not have to think about her pregnancy.McCorvey gave birth to a daughter at Dallas Osteopathic Hospital on June 2, 1970; the baby,Shelley Lynn Thornton, was adopted by a couple in Texas.
In 1970, Coffee and Weddington filedRoe v. Wadeas a lawsuit in the U.S. District Court for the Northern District of Texas on behalf of McCorvey under the legal pseudonym "Jane Roe",and they also filedDoes v. Wadeon behalf of the married couple.Thedefendantfor both cases wasDallas County District Attorney,Henry Wade, who represented the State of Texas. Weddington later stated that she "sawRoeas part of a much larger effort by many attorneys" whose collective interests she represented.James H. Hallford was a physician who was in the process of being prosecuted for performing two abortions.The Court allowed him to join the suit as a physician-intervenoron behalf of Jane Roe.
One of the cases was assigned to a panel of judges which included Judge Sarah T. Hughes, who they thought would be sympathetic, and the cases were consolidated.In accordance with the Court's rules, two of the judges hearing the consolidated case were assigned on the basis of their judicial district, and the third judge on the panel was acircuit courtjudgechosen by theChief Justice of the United States.
The consolidated lawsuit was heard by a three-judge panel consisting of district court judgesSarah T. HughesandWilliam McLaughlin Taylor Jr.and appellate judgeIrving Loeb Goldbergof theU.S. Court of Appeals for the Fifth Circuit.Hughes knew Coffee, who clerked for her from 1968 to 1969.Additionally, the backgrounds of two other judges also gave Weddington and Coffee hope they would be successful.On June 17, 1970, the three judges unanimouslyruled in McCorvey's favor and declared the Texas law unconstitutional, finding that it violated the right to privacy found in theNinth Amendment. The court relied on JusticeArthur Goldberg's 1965 concurrence inGriswold v. Connecticut. Yet the Court also declined to grant aninjunctionagainst enforcing the law, and ruled against the married couple on the basis that they lacked standing.Since Wade said he would continue to prosecute people for performing abortions, the lack of an injunction meant that McCorvey could not get an abortion.
Roe v. Wadereached the Supreme Court when both sides appealed in 1970. It bypassed the Court of Appeals for the Fifth Circuitbecause 28 USC § 1253 authorizes a direct appeal to the Supreme Court in cases concerning the granting or denial of a civil injunction decided by a three judge panel.The case continued under the nameRoe v. Wadeinstead of being switched toWade v. Roe. The justices delayed taking action onRoeand a closely related case,Doe v. Bolton, until they had first decided certain other cases. One case they decided first wasYounger v. Harris. The justices felt the appeals raised difficult questions on judicialjurisdiction.
Another case wasUnited States v. Vuitch, in which they considered the constitutionality of aDistrict of Columbiastatute which banned abortion except when the mother's life or health was endangered. The Court upheld the statute on the grounds that the word "health" was notunconstitutionally vagueand placed theburden of proofconcerning dangers to the life or health of the mother on the prosecutor instead of on the person who had performed the abortion.
JusticeWilliam O. Douglaswrote a lengthy dissenting opinion to this case. He argued that the right to marital privacy and the limitation of family size fromGriswold v. Connecticutalso applied here, although he acknowledged that "on the other side is the belief of many that the fetus, once formed, is a member of the human family and that mere personal inconvenience cannot justify the fetus' destruction." He also challenged the majority opinion with a series of hypothetical questions asking whether "health" might also include the stigma of having anillegitimatechild, anxiety from the pregnancy being unwanted, the physical work of raising a child, the financial drain from the added expense of another child, and far off health risks that may never actually materialize in a similar fashion to how risks were warded off withprophylacticappendectomy.Douglas' dissent made a similar legal argument to the one used two years later inRoe v. Wade.The following day after their decision was announced, the court voted to hear bothRoeandDoe.
According to Blackmun, Stewart felt the cases were a straightforward application ofYounger v. Harris, and enough justices agreed to hear the cases to review whether they would be suitable for federal as opposed to only state courts.This sort of review was not about the constitutionality of abortion and would not have required evidence, witnesses, or a record of facts.The oral argument was scheduled by the full Court for December 13, 1971. Before the Court could hear the oral argument, JusticesHugo BlackandJohn Marshall Harlan IIretired. Chief JusticeWarren Burgerasked JusticePotter Stewartand Justice Blackmun to determine whetherRoeandDoe, among others, should be heard as scheduled. They recommended that the Court continue on as scheduled.
As she began speaking for the oral argument, Sarah Weddington was unaware that the Court had decided to hear the case to decide which courts had jurisdiction to hear it rather than as an attempt to overturn abortion laws in a broad ruling. She began by bringing up constitutional reasons why the Court should overturn Texas's abortion law, but Justice Stewart asked questions directed towards the jurisdiction question instead. Weddington replied that she saw no problem with jurisdiction and continued to talk about aconstitutional rightto abortion.Overall, she spent between 20 and 30 minutes discussing jurisdiction and procedure instead of constitutional issues.
In his opening argument in defense of the abortion restrictions, attorney Jay Floyd made what was later described as the "worst joke in legal history".Appearing against two female lawyers, Floyd began, "Mr. Chief Justice and may it please the Court. It's an old joke, butwhen a man argues against two beautiful ladies like this, they are going to have the last word." His remark was met with cold silence; abortion rights lawyerMargie Pitts Hamesthought that Chief Justice Burger "was going to come right off the bench at him. He glared him down."
McCorvey did not attend either of the oral arguments along with her two lawyers. After talking McCorvey out of getting an illegal abortion and getting her name signed on an affidavit for thelawsuit, Weddington did not speak again with McCorvey until four months afterRoewas decided.
After the first argument session, Burger assigned the task of writing the Court's opinions for bothRoeandDoeto Blackmun.Douglas suggested to Blackmun that Burger assigned the opinions to him out of malicious intention, but Blackmun disagreed. He knew that Burger could not write it himself because the subject of abortion was too controversial, and his opinions might get rejected by the majority. He also understood why the other justices could not be assigned to write the opinions: Douglas was too liberal for the public to accept his word. Likewise, he might split the Court's vote by writing something radical. In addition, the quality of his opinions had suffered recently. Brennan was the only Catholic on the Court, and he would have to face Catholic political groups which were against abortion. If Marshall wrote the opinions, the ruling would be perceived as being directed towards African Americans, and he would have to face the displeasure of African American political groups. Stewart would have trouble going far enough in legalizing abortion.
At this point, Black and Harlan had been replaced by William Rehnquist andLewis F. Powell Jr., but the first argument had already occurred before they became Supreme Court justices.Justice Blackmun worked on a preliminary opinion forRoewhich argued that Texas's law was unconstitutionally vague.This approach accommodated the claims of some doctors who were concerned that prosecutors might disagree with them over what constituted "life". Blackmun thought this approach would be a good way to avoid controversy which would come with saying there was a fundamental right to abortion. Brennan and Douglas disagreed with Blackmun and wrote to him that instead he needed to focus on privacy.After communicating with the other justices, Blackmun felt that his opinion did not adequately reflect his liberal colleagues' views.In March 1972, the court issued a ruling inEisenstadt v. Baird, a landmark case which applied the earlier marital privacy right now also to unmarried individuals.
Douglas wrote to  Blackmun in May 1972 that he thought there were four judges who were definitely willing to rule in the majority—himself, Brennan, Stewart, and Marshall.Blackmun at one point thought all seven justices wanted to vote in the majority.
In May 1972, Blackmun proposed that the case be reargued. Justice Douglas threatened to write a dissent from thereargumentorder because he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold theTexas abortion statutes. He was coaxed out of the action by his colleagues, and instead his dissent was merely mentioned in the reargument order without further statement or opinion.The case was reargued on October 11, 1972. Weddington continued to represent the pseudonymous Jane Roe, and Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for Texas.
A June 1972 memo written by Douglas to his colleagues discussing the case wasleakedto and published inThe Washington Postbefore the decision was published.
Blackmun continued to work on his opinions in both cases over the summer recess, even though there was no guarantee that he would be assigned to write them again. Over the recess, he spent a week researching the history of abortion at theMayo Clinicin Minnesota, where he had worked in the 1950s. He talked daily on the phone withGeorge Frampton, his 28-year-old law clerk who stayed behind in Washington, D.C.Frampton researched the history of abortion using a book authored by Lawrence Lader, the founding chairman of what is now calledNARAL Pro-Choice America. Blackmun's papers made available since his death contain at least seven citationsfor Lader's 1966 book,Abortion.Chapter 16 of his book, "A Blueprint for Changing U.S. Abortion Laws" predicted that if abortion were to be legalized, "the possibility of community opposition is slight".Lader also predicted that "If such a theoretical case was carried to a high court, perhaps even theU.S. Supreme Court, and the judges confirmed a broad interpretation of the meaning of a threat to life, undoubtedly a landmark in abortion decisions would be reached."
The historical survey forRoealso referenced two articles by Cyril Means,who served ascounselto NARAL. In the articles, Means misrepresented the common law tradition in ways that were helpful to theRoeside.Roy Lucas, the principal attorney assisting Weddington and Coffee, had previously received a memo from his colleague David M. Tundermann about Means's scholarship. The memo stated that the conclusions in Means's articles "sometimes strain credibility."It also stated:
After the Court held the second argument session, Powell said he would agree with Blackmun's conclusion but pushed forRoeto be the lead of the two abortion cases being considered. Powell also suggested that the Court strike down the Texas law on privacy grounds. Byron White was unwilling to sign on to Blackmun's opinion, and Justice Rehnquist had already decided to dissent.
During the drafting process, the justices discussed the trimester framework at great length. Powell had suggested that the point where the state could intervene be placed at viability, whichThurgood Marshallsupported as well.In an internal memo to the other justices before the majority decision was published, Justice Blackmun wrote: "You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such asquickeningor viability, is equally arbitrary."In the same memo he suggested that the end of the first trimester seemed more likely to get support from other justices and allowed states the ability to adjust their statutes. He was of the impression that doctors were concerned that recovering abortion patients would take up too many hospital beds, and that abortion patients later than the first trimester were more likely to require hospital beds than those whose fetuses were aborted earlier.Contrary to the justices who preferred viability, Douglas preferred the first-trimester line.Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to state legislatures, though he joined Blackmun's decision.William Brennanproposed abandoning frameworks based on the age of the fetus and instead allowing states to regulate the procedure based on its safety for the mother.
On January 22, 1973, the Supreme Court issued a 7–2 decision in favor of "Jane Roe" (Norma McCorvey) holding that women in the United States had a fundamental right to choose to have an abortion without excessive government restriction and striking down Texas's abortion ban asunconstitutional. The decision was issued together with a decision in acompanion case,Doe v. Bolton, which involved a similar challenge toGeorgia's abortion laws.
Larry Hammond, a law clerk for Powell, gave aTimereporter a copy of the decision "on background", expecting that it would be issued by the court before the next issue ofTimewas published; however, due to a delay in the decision's release, the text of the decision appeared on newsstands a few hours before it was published by the court. Burger demanded a meeting withTime'seditors and punishment for the leaker.Powell refused Hammond's resignation, on the grounds that "Hammond had been double-crossed" by the reporter.
Justice Harry Blackmun authored theopinionof the Court—the "majority opinion"—and was joined by six other justices: Chief JusticeWarren Burgerand JusticesPotter Stewart,William J. Brennan Jr.,William O. Douglas,Thurgood Marshall, andLewis F. Powell Jr.
After reciting the facts of the case, the Court's opinion first addressed several legal questions involving procedure andjusticiability. These includedmootness, a legal doctrine that prevents American federal courts from hearing cases that have ceased to be "live" controversies because of intervening events.Under a normal application of the doctrine, McCorvey's appeal would have been considered moot because she had already given birth to her child and therefore no longer had a pregnancy to abort.
The Court concluded that an established exception to the mootness doctrine allows consideration of cases that are "capable of repetition, yet evading review".Blackmun noted that McCorvey might get pregnant again, and pregnancy would normally conclude more quickly than anappellate process: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied."
After dealing with mootness andstanding, the Court proceeded to the main issue of the case: the constitutionality of Texas's abortion law. The Court first surveyed the status of abortion throughout the history ofRoman lawand the English and early American common law.It also reviewed the developments of medical procedures and technology used in abortions.
Following its historical surveys, the Court introduced the concept of a constitutional "right to privacy" that it said had been intimated in earlier decisions such asMeyer v. NebraskaandPierce v. Society of Sisters, which involved parental control overchildrearing, andGriswold v. Connecticut, which involved the use of contraception.Then, "with virtually no further explanation of the privacy value",the Court ruled that regardless of exactly which provisions were involved, the U.S. Constitution and its guarantees of liberty covered a right to privacy that protected a pregnant woman's decision whether to abort a pregnancy.
The Court reasoned that outlawing abortions would infringe a pregnant woman's right to privacy for several reasons: having unwanted children "may force upon the woman a distressful life and future"; it may bring imminent psychological harm; caring for the child may tax the mother's physical and mental health; and because there may be "distress, for all concerned, associated with the unwanted child".However, the Court rejected the notion that this right to privacy was absolute.It held instead that a woman's right to have an abortion must be balanced against othergovernment interests, such as protectingmaternal healthand protecting the life of the fetus.The Court held that these government interests were sufficiently compelling to permit states to impose some limits on pregnant women's right to choose to have an abortion.
Texas's lawyers had argued that limiting abortion to situations where the mother's life was in danger was justified because life began at the moment ofconception, and therefore the state's governmental interest in protecting prenatal life applied to all pregnancies regardless of theirstage.The Court said that there was no indication that the Constitution's uses of the word "person" were meant to include fetuses, and it rejected Texas's argument that a fetus should be considered a "person" with a legal and constitutionalright to life.The Court observed that there was still great disagreement over when an unborn fetus becomes a living being.
To balance women's rights to privacy and state governments' interests in protecting mothers' health and prenatal life, the Court created thetrimesterframework.During the first trimester, when it was believed that the procedure was safer than childbirth, the Court ruled that a state government could place no restrictions on women's ability to choose to abort pregnancies other than imposing minimal medical safeguards, such as requiring abortions to be performed bylicensedphysicians.From the second trimester on, the Court ruled that evidence of increasing risks to the mother's health gave states a compelling interest that allowed them to enact medical regulations on abortion procedures so long as they were reasonable and "narrowly tailored" to protecting mothers' health.From the beginning of the third trimester on—the point at which a fetus became viable under the medical technology available in the early 1970s—the Court ruled that a state's interest in protecting prenatal life became so compelling that it could legally prohibit all abortions except where necessary to protect the mother's life or health.
Having completed its analysis, the Court concluded that Texas's abortion statutes were unconstitutional and struck them down.
Three justices from the majority filedconcurring opinionsin the case. Justice Potter Stewart wrote a concurring opinion in which he said that even though the Constitution makes no mention of the right to choose to have an abortion without interference, he thought the Court's decision was a permissible interpretation of the doctrine ofsubstantive due process, which says that theDue Process Clause'sprotection of liberty extends beyond simple procedures and protects certain fundamental rights.Justice William O. Douglas's concurring opinion described his view that although the Court was correct to find that the right to choose to have an abortion was a fundamental right, he thought it would have been better to derive it from the Ninth Amendment—which states that the fact that aright is not specifically enumeratedin the Constitution shall not be construed to mean that American people do not possess it—rather than through the Fourteenth Amendment's Due Process Clause.
Chief Justice Warren Burger wrote a concurrence in which he wrote that he thought it would be permissible to allow a state to require two physicians to certify an abortion before it could be performed.His concurrence also states:
This has been interpreted as Chief Justice Burger thinking that medical standards and judgment would restrict the number of abortions. Instead of the law restricting abortions to limited circumstances as pre-Roe, now doctors would get to do the restricting.
This understanding ofRoeappears to be related to several statements in the majority opinion.Justice Blackmun's majority opinion states, "the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient's pregnancy should be terminated."It also states, "For the stage, prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician."Six days prior to January 22, Justice Blackmun prepared "a  transcript of what I shall say, and there should be at least some reason for the press not going all the way off the deep end."The unissued news release stated:
These statements appear to indicate that the justices voting in the majority thought that patients had personal physicians. Earlier in American history it was once common for people to have individual doctors, but the nature of doctor-patient relationship had already changed prior toRoe.
Two justices,Byron WhiteandWilliam Rehnquist, dissented from the Court's decision.White's dissent, which was issued withRoe'scompanion case,Doe v. Bolton, argued that the Court had no basis for deciding between the competing values of pregnant women and unborn children:
White also argued that the legality of abortion, "for the most part, should be left with the people and the political processes the people have devised to govern their affairs."
Rehnquist's dissent compared the majority's use of substantive due process to the Court's repudiated use of the doctrine in the 1905 caseLochner v. New York.He elaborated on several of White's points and asserted that the Court's historical analysis was flawed.
From this historical record, Rehnquist wrote, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." He concluded "thedraftersdid not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."
There was a strong response to the decision shortly after it was issued.The Catholic Church condemned the ruling.Prominent organized groups that responded toRoeincludeNational Association for the Repeal of Abortion Laws, which became the National Abortion Rights Action League in late 1973 to reflect the Court's repeal of restrictive laws,and theNational Right to Life Committee.
The legal scholarRonald Dworkindescribed it as "undoubtedly the best-known case the United States Supreme Court has ever decided."
In the 1960s, there was an alliance between thepopulation control movementand theabortion-rights movement in the United States.Abortion rightswere especially supported by younger women within thepopulation controlmovement.The cooperation was mostly due tofeministswho wanted some of the popularity already enjoyed by the population control movement.In addition, population control advocates thought that legalizing abortion would help solve the coming population crisis that demographers had projected.
In 1973,Hugh Moore'sPopulation Crisis CommitteeandJohn D. Rockefeller III'sPopulation Councilboth publicly supported abortion rights followingRoe.Previously, public support for abortion rights within the population control movement instead came from less established organizations such asZero Population Growth.An exception wasPlanned Parenthood-World Population, which supported repealing all laws against abortion in 1969.Together, population control and abortion rights advocates voiced the benefits of legalized abortion such as smaller welfare costs, fewer illegitimate births, and slower population growth.At the same time, the use of these arguments put them at odds withcivil-rights movementleaders andBlack Poweractivists who were concerned that abortion would be used to eliminate non-whites.H. Rap Browndenounced abortion as "black genocide",andDick Gregorysaid that his "answer to genocide, quite simply, is eight Black kids and another one on the way."
Soon afterRoe, the population control movement suffered setbacks, which caused the movement to lose political support and instead appear divisive.On June 27, 1973, a lawsuit was filed concerningthe Relf sisters, 14-year-old Minnie Lee and her 12-year-old sister Alice Lee. A worker at a federally-funded family planning clinic lied to their illiterate mother, saying they would get birth control shots. Instead, the Relf sisters were sterilized without their knowledge or consent.During the next fifteen months, 80 additional women came forward about their forced sterilizations, all belonging to minority races. Concerns rose that abortions would also become compulsory.During the 1974World Population ConferenceinBucharest, Romania, most developing nations argued that the developed nations' focus on population growth was an attempt to avoid solving the deeper causes of underdevelopment, such as the unequal structure of international relations.Instead, they wanted more favorable terms under theNew International Economic Order. A draft plan with fertility targets was strongly opposed by the developing countries, which surprised the delegations from the United States, Canada, and Great Britain.The final plan omitted fertility targets and instead stated, "A population policy may have a certain success if it constitutes an integral part of socio-economic development."
As members questioned the political benefits of population control rhetoric, the abortion-rights movement distanced itself from the population control movement.In October 1973, Robin Elliott circulated a memo to other Planned Parenthood members concerning opposition to "Planned Parenthood's credibility in its reference to the population problem".Instead, she thought they should useRoeinspired rhetoric about "the reaffirmation of commitment to freedom of choice in parenthood."By 1978, a NARAL handbook denounced population control.
Into the 21st century, advocates ofRoedescribe it as vital to the preservation ofwomen's rights, personal freedom, bodily integrity, and privacy. Advocates have also reasoned that access to safe abortion and reproductive freedom generally arefundamental rights. Supporters ofRoecontend that even if abortion rights are also supported by another portion of the constitution, the decision in 1973 accurately founds the right in the Fourteenth Amendment. Others supportRoedespite concern that the fundamental right to abortion is found elsewhere in the Constitution but not in the portions referenced in the 1973 decision.They also tend to believe that the power balance between men and women is unequal, and that issues like access to birth control and political representation affect women's equality.
Opinion polls in late 2021 indicated that while a majority of Americans oppose overturningRoe,a sizable minority opposed overturningRoebut also desired to make abortion illegal in ways thatRoewould not permit. This was attributed to poll respondents misunderstandingRoe v. Wadeor misinterpreting the poll question.2018–2019 polls showed that while 60 percent of Americans generally support abortion in the first trimester, this drops to 20 percent for the second trimester, even thoughRoeprotects the right to abortion until the last weeks of the second trimester, and at the same time 69 percent said they would not like to seeRoeoverturned, compared to 29 percent who said they would like to seeRoeoverturned.Another poll showed that 43 percent of those who said abortion should be illegal in most or all cases opposed overturningRoe, while 26 percent of those who said abortion should be legal in most or all cases supported overturningRoe.Polls also found that men and women have similar views on abortion,which are linked to how people think about motherhood, sex, and women's social roles; supporters ofRoeand abortion rights tend to see women's ability to make decisions about their bodies as fundamental togender equality.
Most polls in the late 2010s and early 2020s showed overwhelming support,at between 85 and 90 percent, among Americans that abortion should be legal in at least some circumstances, which varies or drops depending on the specifics.A January 2022CNNpoll found a 59% majority of Americans want their state to have laws that are "more permissive than restrictive" on abortion ifRoeis overturned, 20% want their state to ban abortion entirely, and another 20% want it to be restricted but not banned.In two March 2022 polls, between 61 and 64 percent of Americans said abortion should be legal in most or all cases, while between 35 and 37 percent said abortion should be illegal in most or all cases.A May 2022Galluppoll showed that 50% of Americans thought abortions should be legal under certain circumstances, with 35% saying it should be legal under any circumstances, and 15% saying it should be illegal in all circumstances,as well as a record number of Americans who identify aspro-choice.
BeforeRoewas overturned inDobbs v. Jackson Women's Health Organization, a majority of Americans thought thatRoewas safe and would not be overturned. Since the draft's leaks showedRoeto be overturned inDobbs, as happened in June 2022, abortion became a concern and a very important issue for Democrats, who previously lagged behind Republicans on this;some Americans, in particular liberals but also a few conservatives, may have become more aware of the popular support forRoe, which they had previously understated.In June 2022, Gallup reported that a 61% majority of Americans say abortion should be legal in all or most cases, while 37% say abortion should be illegal in all or most cases. It also recorded the highest partisan divide since 1995,compared to the mid-1970s and throughout the 1980s when both Democrats and Republicans were closer on the issue.That same month, the Congregation L'Dor Va-Dor filed a lawsuit against a new law in Florida that would outlaw abortion after 15 weeks of pregnancy, including in cases of rape or incest. Unlike other legal challenges to abortion restrictions in the United States that generally rely on the right to privacy established byRoe, the synagogue argued that Florida's abortion law violates religious freedom, as "Jewish law says that life begins at birth, not at conception."
The Catholic Church condemned the ruling by the Supreme Court.Blackmun wrote in his diary, "Abortion flak—3 Cardinals—Vatican—Rochester wires!"
John Cardinal Krol, thearchbishop of Philadelphiawho was also the president of theUnited States Conference of Catholic BishopsandTerence Cardinal Cooke, thearchbishop of New York, both issued statements condemning the ruling.Krol called the ruling "an unspeakable tragedy for this nation" that "sets in motion developments which are terrifying to contemplate."Cooke called the decision a "horrifying action" and added:
Some supporters of abortion rights opposeRoe v. Wadeon the grounds that it laid a foundation for abortion incivil rightsrather than inhuman rights, which are broader and would require government entities to take active measures to ensure every woman has access to abortion.This particular position is indicated by the use of rhetoric concerning "reproductive justice", which replaces earlier rhetoric centered around "choice", such as the "pro-choice" label.Reproductive justice proponents contend that factors permitting choice are unequal, thus perpetuating oppression and serving to divide women.Reproductive justice advocates instead want abortion to be considered an affirmative right that the government would be obligated to guarantee equal access to, even if the women seeking abortions are nonwhite, poor, or live outside majormetropolitan areas.With a broader interpretation of the right to an abortion, it would be possible to require all newobstetriciansto be in favor of abortion rights, lest as professionals they employconscience clausesand refuse to perform abortions.In the 1989 decision ofWebster v. Reproductive Health Services, the Supreme Court ruled against an affirmative right tonontherapeuticabortions and noted that states would not be required to pay for them.
Some in academia have equated the denial of abortion rights to compulsory motherhood, and reason that because of this abortion bans violate theThirteenth Amendment: "When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the Thirteenth Amendment. Even if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant."In 1993, a district court rejected an attempt to justify abortion rights apart fromRoeand instead upon the basis that pregnancy and childrearing constitutedinvoluntary servitude.
Every year, on the anniversary of the decision, opponents of abortion march upConstitution Avenueto theSupreme Court BuildinginWashington, D.C., in theMarch for Life.Around 250,000 people attended the march until 2010.Estimates put the 2011 and 2012 attendances at 400,000 each,and the 2013 March for Life drew an estimated 650,000 people.The march was started in October 1973 byNellie Grayand the first march took place on January 22, 1974, to mark the first anniversary ofRoe v. Wade.
Opponents ofRoesay that the decision lacks a valid constitutional foundation.Like the dissenters inRoe, they maintain that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the legislative process, rather than through an all-encompassing ruling from the Supreme Court.Another argument against theRoedecision, as articulated by former presidentRonald Reagan, is that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm.
In response toRoe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiringparental consentor parental notification for minors to obtain abortions; spousal mutual consent laws;spousal notificationlaws; laws requiring abortions to be performed in hospitals, not clinics; laws barring state funding for abortions; laws banningintact dilation and extraction, also known as partial-birth abortion; laws requiring waiting periods before abortions; and laws mandating that women read certain types of literature and watch afetal ultrasoundbefore undergoing an abortion.In 1976, Congress passed theHyde Amendment, barring the federal government from usingMedicaidto fund abortions except in cases of rape, incest, or a threat to the life of the mother. The Supreme Court struck down some staterestrictionsin a long series of cases stretching from the mid-1970s to the late 1980s, but upheld restrictions on funding, including the Hyde Amendment, in the case ofHarris v. McRae(1980).Some opponents of abortion maintain thatpersonhoodbegins atfertilizationorconception, and should therefore be protected by the Constitution;the dissenting justices inRoeinstead wrote that decisions about abortion "should be left with the people and to the political processes the people have devised to govern their affairs."
Liberalandfeministlegal scholars have had various reactions toRoe, not always giving the decision unqualified support. One argument is that Justice Blackmun reached the correct result but went about it the wrong way.Another is that the end achieved byRoedoes not justify its means ofjudicial fiat.
David Garrowsaid that the decision inRoeand alsoDoe v. Bolton"owed a great amount of their substance and language" to Justice Blackmun'slaw clerks, George Frampton and Randall Bezanson. He thought the extent of their contributions were remarkable, and that the clerks exhibited an "unusually assertive and forceful manner" in voicing their views to Justice Blackmun. In his research, it was the earliest significant example he found of this behavior pattern, which grew more consistent later on. In Garrow's evaluation, the clerks' contributions were "historically significant and perhaps decisive" in shaping the two decisions.
In response to Garrow,Edward Lazarussaid that Justice Blackmun's later clerks like himself did not need as much direction on reproductive rights since they had Justice Blackmun's prior opinions to draw from. Lazarus thought that on at least some occasions when legal formulations were created for opinions to be published in Justice Blackmun's name, the justice himself was not engaged in originating every significant thought pattern that they employed. Lazarus agreed that Garrow's depiction of how the trimester framework came about was an example of one of these occasions.He concluded: "The problem of excessive clerk delegation was less serious in Blackmun's chambers than Garrow suggests but is also more commonplace among the justices. The modern Supreme Court has deep problems in its decisional culture and the overuse of law clerks is an aspect of this."
JusticeJohn Paul Stevens, while agreeing with the decision, suggested that it should have been more narrowly focused on the issue of privacy. According to Stevens, if the decision had avoided the trimester framework and simply stated that the right to privacy included a right to choose abortion, "it might have been much more acceptable" from a legal standpoint.Before joining the Court, JusticeRuth Bader Ginsburgcriticized the decision for venturing "too far in the change it ordered".Had the decision been limited in scope to only permit abortion during certain circumstances, "physicians might have been less pleased with the decision, but the legislative trend might have continued in the direction in which it was headed".After becoming a Supreme Court justice, Ginsburg faulted the Court's approach for being "about a doctor's freedom to practice his profession as he thinks best... It wasn't woman-centered. It was physician-centered."Justice Ginsburg thought thatRoewas originally intended to complement Medicaid funding for abortions, but this did not happen.AboutHarris v. McRae, which upheld restrictions on Medicaid abortion funding, she said:
WatergateprosecutorArchibald Coxthought the "failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child birth and abortion or new advances in providing for the separate existence of a fetus. Neither historian, norlayman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."
In a highly citedYale Law Journalarticle published in the months after the decision,the American legal scholarJohn Hart ElycriticizedRoeas a decision that was disconnected from American constitutional law.
American constitutional law scholarLaurence Tribesaid: "One of the most curious things aboutRoeis that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."Centrist-liberal law professorsAlan Dershowitz,Cass Sunstein,andKermit Roosevelt IIIhave also expressed disappointment withRoe v. Wade.
Jeffrey Rosen,as well asMichael Kinsley,echo Ginsburg, arguing that a legislative movement would have been the correct way to build a more durable consensus in support of abortion rights.William Saletanwrote, "Blackmun's papers vindicate every indictment ofRoe: invention, overreach,arbitrariness,textualindifference."Benjamin Wittesargued thatRoe"disenfranchisedmillions of conservatives on an issue about which they care deeply."Edward Lazarus, a former Blackmun clerk who "lovedRoe's author like a grandfather", wrote: "As a matter of constitutional interpretation and judicial method,Roeborders on the indefensible.... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years sinceRoe'sannouncement, no one has produced a convincing defense ofRoeon its own terms."
Richard Epsteinthought that the majority opinion relied on a book written byWilliam Lloyd Prosserabouttortlaw when it stated that it "is said" recovery ofdamageswas allowed "only if the fetus was viable, or at least quick, when the injuries were sustained".He compared this to what was in fact written in the book,which was that "when actually faced with the issue for decision, almost all of the jurisdictions have allowed recovery even though the injury occurred during the early weeks of pregnancy, when the child was neither viable nor quick."
Matt Bruenig, lawyer and founder of thePeople's Policy Project, criticizedRoeas being "weaker than normal" and observed that similarly broad interpretations of the Constitution could be used to argue the opposite outcome, saying "right now we have a constitutional right to an abortion—you could also constitutionally ban abortion. If you wanted to, someone could bring a case, file it in a district court, hit the appeal button twice, and then if you get five judges together, the opinion would be the easiest thing in the world to write. You would say, 'the Fourteenth Amendment protects the right to life, liberty, and property without due process and all that shit. So we're looking at that, and we think that abortion takes a life and so we think that in fact states may not permit abortion'. So you could constitutionally ban it and say that no state or federal government is allowed to legalize abortion".
The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the ruling.The "viability" criterion was still in effect, although the point of viability changed as medical science found ways to helppremature babiessurvive.
Justice Blackmun, who authored theRoedecision, subsequently had mixed feelings about his role in the case. During a 1974 television interview, he stated thatRoe"will be regarded as one of the worst mistakes in the court's history or one of its great decisions, a turning point."
In a 1983 interview for a newspaper journalist, he responded that he was "mildly annoyed at those, law professors included, who personalize it" because "it was a decision of the court, not my decision. There were seven votes." As a Methodist, he felt hurt that Methodist pastors wrote condemning letters to him, but as time passed, the letters did not hurt "as much anymore". In defense he responded, "People misunderstand. I am not for abortion. I hope my family never has to face such a decision", noting that "I still think it was a correct decision" because "we were deciding a constitutional issue, not a moral one."He describedRoeas "a no-win case" and predicted that, "fifty years from now, depending on the fate of the proposed constitutional amendment, abortion probably will not be as great a legal issue. I think it will continue to be a moral issue, however."He reflected that his role in the decision meant he was most known as the "author of the abortion decision". His response was that "we all pick up tags. I'll carry this one to my grave" and "so be it".
In 1987, Justice Blackmun explained in a letter to Chief Justice Rehnquist:
In 1991, he regretted how the Court decided to hearRoeandDoein a televised interview: "It was a serious mistake... We did a poor job. I think the committee should have deferred them until we had a full Court."
In 1992, he stood by the analytical framework he established inRoeduring the subsequentCaseycase.He often gave speeches and lectures promotingRoe v. Wadeand criticizingRoe's critics.
A few years after the Supreme Court decidedRoe,Norma McCorveymade a claim—which she recanted many years later—that she had a nightmare about "little babies lying around with daggers in their hearts". She said this was the first of recurringnightmaresthat kept her awake at night.She became worried and wondered, "What really, had I done?"and "Well, how do they kill a baby inside a mother's stomach anyway?" McCorvey later claimed:
McCorvey joined with and accompanied others in the anti-abortion movement. During this time, McCorvey said that she had publicly lied about being raped and apologized for making the false claim.Norma McCorvey became part of the movement against abortion from 1995 until shortly before her death in 2017.In 1998, she testified to Congress:
In 2002, along withSandra Cano (Mary Doe)fromDoe v. BoltonandBernard Nathanson, a co-founder of NARAL Pro-Choice America, McCorvey appeared in a television advertisement intended to persuade theBush administrationto nominate Supreme Court Justices who would oppose abortion.
As a party to the original litigation, she sought to reopen the case inU.S. District Courtin Texas to haveRoe v. Wadeoverturned. However, theFifth Circuitdecided that her case was moot, inMcCorvey v. Hill.In a concurring opinion, JudgeEdith Jonesagreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development. However, Jones said she was compelled to agree that the case was moot.On February 22, 2005, the Supreme Court refused to grant awrit of certiorari, and McCorvey's appeal ended.
In an interview shortly before her death, McCorvey stated that she had taken an anti-abortion position because she had been paid to do so and that her campaign against abortion had been an act. She also stated that it did not matter to her if women wanted to have an abortion and they should be free to choose.Rob Schenck, aMethodistpastor and activist who once had anti-abortion views stated that he and others helped entice McCorvey to claim she changed sides and also stated that what they had done with her was "highly unethical" and he had "profound regret" over the matter.
Frank Pavone, a priest with whom McCorvey talked after the interview, reflected after her death that "There was no indication whatsoever, at the end of her life," that she had given up her pro-life positions. Pavone stated that following the interview, McCorvey talked positively with him about a message she wanted him to convey at the next March for Life. The message concerned encouraging young people to oppose abortion.
After arguing inRoe v. Wadeat the age of 26,Sarah Weddingtonwas elected to theTexas House of Representativesfor three terms. Weddington also wasgeneral counselfor theU.S. Department of Agriculture, an assistant to PresidentJimmy Carter,lecturer at theTexas Wesleyan University School of Law, and speaker andadjunct professorat theUniversity of Texas at Austin.
In a 1993 speech for the Institute for Educational Ethics in Oklahoma, Weddington discussed her conduct duringRoeand stated, "My conduct may not have been totallyethical. But I did it for what I thought were good reasons."
In 1998, she said that the lack of doctors to abort fetuses could undermineRoe: "When I look back on the decision, I thought these words had been written in granite. But I've learned it was not granite. It was more like sandstone. The immediate problem is, where will the doctors come from?"Weddington died on December 26, 2021.
Roewas embedded in a long line of cases concerning personal liberty in the realm of privacy, sinceRoewas based on individual liberty cases concerning privacy likeMeyer v. Nebraska(1923),Griswold v. Connecticut(1965),Loving v. Virginia(1967) andEisenstadt v. Baird(1972)and became a foundation for individual liberty cases concerning privacy likeLawrence v. Texas(2003) andObergefell v. Hodges(2015).
Two months after the decision inRoe, the Court issued a ruling about school funding inSan Antonio Independent School District v. Rodriguez.The majority opinion citedRoe v. Wadeto assert that privacy itself was a fundamental right, while procreation implicitly counted as "among the rights of personal privacy protected under the Constitution."In his dissenting opinion, Justice Thurgood Marshall stated thatRoe v. Wade"reaffirmed its initial decision inBuck v. Bell", and noted whereBuckwas cited inRoe.He foundRoeto be a continuation of the Court's practice of granting only a limited stature to the right to procreate,since the Court's decision treated procreation as less important than the right to privacy.He observed that although past decisions showed strong concern against the state discriminating against certain groups concerning procreation and certain other rights, the "Court has never said or indicated that these are interests which independently enjoy full-blown constitutional protection."Instead, inRoe, "the importance of procreation has indeed been explained on the basis of its intimate relationship with the constitutional right of privacy..."Justice Marshall thought that the method used inRodriguezfor determining which rights were more fundamental was wrong, and proposed a different method which would result in procreation receiving greater legal protection.
The legal interaction betweenRoe v Wade, the Fourteenth Amendment as understood post-Roe, and changing medical technology and standards caused the development of civil suits forwrongful birthandwrongful lifeclaims.Not all states permit a parent to sue for wrongful birthor a child to sue for wrongful life.The constitutionality of wrongful life claims is controversial within thelegal profession, even for states which currently allow them.Pre-Roe, a state court dismissed a lawsuit making both a wrongful birth and life claim, which was unsuccessfully appealed to theSupreme Court of New Jersey.
Prior toRoe, theChancery Division of the Superior Court of New Jerseyfound that a pregnantJehovah's Witnesswoman could be ordered to submit to lifesavingblood transfusionsdue to the state's compelling interest "to save her life and the life of her unborn child."The Court appointed alegal guardianto represent the unborn child, and ordered the guardian to consent to blood transfusions and to "seek such other relief as may be necessary to preserve the lives of the mother and the child".AfterRoe, theFifth District Appellate Court in Illinoisruled that medical professionals had wrongly transfused blood into a pregnant Jehovah's Witness woman on the basis fromRoethat the "state's important and legitimate interest becomes compelling at viability" and her fetus was not yet viable.
President Reagan, who supported legislative restrictions on abortion, beganmaking federal judicial appointmentsin 1981. Reagan denied that there was anylitmus test: "I have never given a litmus test to anyone that I have appointed to the bench... . I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek arejudges that will interpret the law and not write the law. We've had too many examples in recent years of courts and judges legislating."
In addition to Justices White and Rehnquist, Reagan-appointee JusticeSandra Day O'Connorbegan dissenting from the Court's abortion cases, arguing in 1983 that the trimester-based analysis devised by theRoeCourt was "unworkable."Shortly before his retirement, Chief Justice Warren Burger suggested in 1986 thatRoebe "reexamined";the associate justice who filled Burger's place on the Court—JusticeAntonin Scalia—vigorously opposedRoe. Concern about overturningRoeplayed a major role in the defeat ofRobert Bork's nomination to the Courtin 1987; the man eventually appointed to replaceRoe-supporter Justice Lewis Powell was JusticeAnthony Kennedy.
The justices voting in the majority on theFederal Constitutional Courtin pre-unificationWest Germanyrejected the trimester framework in theGerman Constitutional Court abortion decision, 1975on the basis that development during pregnancy is a continuous whole rather than made up of three trimesters. The Court found that the right to life extends also to the unborn and that life begins on the fourteenth day after conception.It also found that the liberties of pregnant mothers were qualified by the existence of another life inside them. The Court found that "A compromise which guarantees the protection of the life of the one about to be born and permits the pregnant woman the freedom of abortion is not possible since the interruption of pregnancy always means the destruction of the unborn life."It ruled that the fetus must be protected, and the first responsibility for this lies with the mother, with a second responsibility in the hands of thelegislature.The Court allowed for a balancing of rights between the mother and unborn child, but required that the rights of each be considered within a framework which acknowledged the supreme, fundamental value of human life. Legislation allowing abortion could be constitutional if the rights of the unborn persons were acknowledged in this manner.
Two minority justices in the ruling for the German Constitutional Court abortion decision in 1975 remarked that "the Supreme Court of the United States has even regarded punishment for the interruption of pregnancy, performed by a physician with the consent of the pregnant woman in the first third of pregnancy, as a violation of fundamental rights. This would, according to German constitutional law, go too far indeed."
In 1988, theSupreme Court of Canadaused the rulings in bothRoeandDoe v. Boltonas grounds to find Canada's federal law limiting abortions to certified hospitals unconstitutional inR. v. Morgentaler.
InPlanned Parenthood v. Danforth, 428 U.S. 52 (1976),the plaintiffs challenged a Missouri statute which regulated abortion. In the regulations for abortions on demand, the state required prior written consent from a parent if the patient was a minor or a spouse if the patient was married. For pregnancies at 12 weeks and later, the statute also bannedsaline abortions,in which chemicals are injected into theamniotic sacto burn the fetus.The portions of the statute involving parental or spousal consent and prohibiting saline abortions were struck down.
InFloyd v. Anders, 440 F. Supp. 535 (D.S.C. 1977), South Carolina attempted to prosecute a doctor for illegal abortion and murder after he attempted to abort an African American boy at 25 weeks. During the abortion, the boy was born alive and survived for 20 days before dying.His prosecution was blocked by JudgeClement Haynsworth, and shortly afterwards by a unanimous three judge panel for theU.S. District Court for the District of South Carolina. Judge Haynsworth, writing for the panel, stated "Indeed, the Supreme Court declared the fetus in the womb is neither alive nor a person within the meaning of the Fourteenth Amendment."John T. Noonancriticized this from an anti-abortion perspective, stating that "Judge Haynsworth had replaced the Supreme Court's test of potential ability to live with a new test of actual ability to live indefinitely. He also had spelled out what was implied inRoe v. Wadebut never actually stated there. For the American legal systems the fetus in the womb was not alive."The standard inRoefor viability outside the womb required a "capability of meaningful life".Without this capability, the state had no compelling "important and legitimate interest in potential life".
In a 5–4 decision in 1989'sWebster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overruleRoe, because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution." In particular, the Court found that the ability to have a nontherapeutic abortion was not an affirmative right of the sort that required the state to pay for it.In this case, the Court upheld several abortion restrictions, and modified theRoetrimester framework.
In concurring opinions, Justice O'Connor refused to reconsiderRoe, and Justice Antonin Scalia criticized the Court and Justice O'Connor for not overrulingRoe.Justice Blackmun stated in his dissent that Justices White, Kennedy and Rehnquist were "callous" and "deceptive", that they deserved to be charged with "cowardice and illegitimacy", and that theirpluralityopinion "fomentsdisregard for the law."White had recently opined that the majority reasoning inRoe v. Wadewas "warped."
During initial deliberations forPlanned Parenthood v. Casey(1992), an initial majority of five justices (Rehnquist, White, Scalia, Kennedy, andThomas) were willing to effectively overturnRoe. Justice Kennedy changed his mind after the initial conference,and Justices O'Connor, Kennedy, and Souter joined Justices Blackmun and Stevens to reaffirm the central holding ofRoe,but instead of justifying the liberty to abort as being based on privacy as inRoe, it justified the liberty in a broader manner. The opinion asserted an individual's liberty to choose concerning family life and also protection from legal enforcement intended to maintain traditional sex roles, writing,"Our law affords constitutional protection to personal decisions relating to marriage,procreation, contraception, family relationships, child rearing, and education...."and against the state insisting "upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."
The plurality of justices stated that abortion-related legislation should be reviewed based on theundue burden standardinstead of the strict scrutiny standard fromRoe.
The plurality also found that a fetus was now viable at 23 or 24 weeks rather than at the 28-week line from 1973.They also felt that fetal viability was "more workable" than the trimester framework.They abandoned the trimester framework due to two basic flaws: "in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized inRoe."Only Justice Blackmun wanted to retainRoeentirely and issue a decision completely in favor ofPlanned Parenthood.Prior to this, he had considered a Pennsylvania viability-based law to be unconstitutionally vague in his majority opinion forColautti v. Franklin.
Justice Scalia's dissent asserted that abortion is not a liberty protected by the Constitution for the same reasonbigamywas not protected either: because the Constitution does not mention it, and because longstanding traditions have permitted it to be legallyproscribed.He also asked:
During the 1990s,Nebraskaenacted a law banning partial-birth abortion. The law allowed another second-trimester abortion procedure known asdilation and evacuation. In 2000, the Supreme Court struck down the law by a 5–4 vote inStenberg v. Carhart, with JusticeStephen Breyerwriting for the majority that sometimes partial-birth abortion "would be the safest procedure".Justice O'Connor wrote a concurrence stating Nebraska was actually banning both abortion methods.Justices Ginsburg and Stevens joined each other's concurrences. Justice Stevens stated that "the notion that either of these two equally gruesome procedures performed at this latestage of gestationis more akin to infanticide than the other... is simply irrational."Justice Ginsburg stated that the "law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."
Justice Thomas's dissent stated, "The 'partial birth' gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body."Justice Scalia joined Justice Thomas's dissent and also wrote his own, stating that partial-birth abortion is "so horrible that the most clinical description of it evokes a shudder of revulsion" and that this case provedCaseywas "unworkable".Chief Justice Rehnquist joined the two dissents by Justices Scalia and Thomas.
Justice Kennedy, who had co-authoredCasey, dissented inStenberg. He described in graphic detail exactly how a fetus dies while beingdismemberedduring a dilation and evacuation procedure. He reasoned that since Nebraska was not seeking to prohibit it, the state was free to ban partial-birth abortion.
In 2003, Congress passed thePartial-Birth Abortion Ban Act,which led to a lawsuit in the case ofGonzales v. Carhart.The Court previously ruled inStenberg v. Carhartthat a state's ban on partial-birth abortion was unconstitutional because such a ban did not have an exception for the health of the woman.The membership of the Court changed afterStenberg, with Chief JusticeJohn Robertsand JusticeSamuel Alitoreplacing Chief Justice Rehnquist and Justice O'Connor.The ban at issue inGonzales v. Carhartwas similar to the one inStenberg,but had been adjusted to comply with the Court's ruling.
On April 18, 2007, a 5 to 4 decision upheld the constitutionality of the Partial-Birth Abortion Ban Act.Justice Kennedy wrote the majority opinion that Congress was within its power to ban partial-birth abortion. The Court left the door open foras-applied challenges.The opinion did not address whetherCaseyremained valid. Instead it only assumedCaseywas valid "for the purposes of this opinion".
Chief Justice John Roberts and Justices Scalia, Thomas, and Alito joined the majority. Justice Thomas filed a concurring opinion, joined by Justice Scalia, contending that the Court's prior decisions inRoe v. WadeandPlanned Parenthood v. Caseyshould be reversed.They also noted that the Partial-Birth Abortion Ban Act may have exceeded the powers of Congress under theCommerce Clausebut that the question was not raised.
Justice Ginsburg, joined by Justices Stevens,Souter, and Breyer, dissented,contending that the ruling ignored precedent and that abortion rights should instead be justified by equality.
Dubay v. Wellswas a 2006 paternity case where a man argued he should not have to paychild supportfor a child he did not want to parent. The case was billed as "Roe v. Wadefor men".
On March 9, 2006, Dubay filed a lawsuit before theUnited States District Court for the Eastern District of Michigan.Michigan's Attorney General, Joel D. McGormley, made amotion to have the case dismissed. On July 17, 2006, District Court JudgeDavid Lawsonagreed and dismissed Dubay's lawsuit.He appealed it once, to theUnited States Court of Appeals for the Sixth Circuit, which also dismissed it, and stated:
In 2013, theTexas legislature enacted restrictionswhich required abortion doctors to haveadmitting privilegesat a local hospital and required abortion clinics to have facilities equivalent to others which conductedoutpatient surgery.On June 27, 2016, the Supreme Court in a 5–3 decision forWhole Woman's Health v. Hellerstedtstruck down these restrictions.
The majority opinion by Justice Breyer struck down these two provisions of Texas law in afacialmanner—that is, the very words of the provisions were invalid, no matter how they might be applied in any practical situation. The ruling also stated that the task of judging whether a law puts an undue burden on a woman's right to abortion belongs with the courts and not the legislatures.
In 2016, Indiana passed House Bill 1337, enacting a law which regulated what is done with fetal remains and banning abortion for sexist, racist, orableistpurposes.In its unsigned 2019 ruling forBox v. Planned Parenthood of Indiana and Kentucky, Inc., the U.S. Supreme Court upheld the regulations about fetal remains, but declined to hear the remainder of the law, which had been blocked by lower courts.Justice Ginsburg dissented from the part of the ruling about fetal remains on the basis that the regulations violatedCasey.She also criticized Justice Thomas over his use of the word "mother" in his concurrence.
Justice Sotomayorstated that she wished the Court would not have heard the case at all.Justice Thomas wrote a concurring opinion which expressed concern that the theory presented inFreakonomicsechoed the views of theeugenicsmovement.He warned that "a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement". He predicted, "Although the Court declines to wade into these issues today, we cannot avoid them forever."
In 2021, the state of Texas devised a legal workaround toRoethat allowed it to successfully outlaw abortion at six weeks of pregnancy despite the continued existence ofRoeandCasey. In theTexas Heartbeat Act, the legislature created a novel enforcement mechanism that bars state officials from enforcing the statute and authorizes private individuals to sue anyone who performs or assists an illegal abortion.Because the Act is enforced by private citizens rather than government officials, there are no state officials that abortion providers can sue to stop the enforcement of the law, and they cannot obtain judicial relief that will stop private lawsuits from being initiated against them.This has produced an end-run aroundRoebecause the threat of private civil-enforcement lawsuits has forced abortion providers to comply with the Act despite its incompatibility with the Supreme Court's abortion pronouncements.Other states have copied this enforcement mechanism to sidestepRoeand immunize their anti-abortion statutes from judicial review.This maneuver has weakenedRoeand undercut the federal judiciary's ability to protect abortion rights from state legislation.
Dobbs v. Jackson Women's Health Organizationis a case that was a legal challenge to Mississippi's 2018Gestational Age Act, which had banned abortions after 15 weeks with exceptions only for medical emergencies or fetal abnormalities. Federal courts hadenjoinedthe state from enforcing the law after the state's only abortion clinic,Jackson Women's Health Organization, filed suit immediately after passage; the federal courts stated that the lawviolatedthe previously established 24-week point of viability. Mississippi asked the Supreme Court to hear the case on June 15, 2020, and the Courtcertified the petitionon May 17, 2021, limited to the question, "Whether all pre-viability prohibitions on elective abortions are unconstitutional."The Court chose not to take up two other questions that Mississippi wanted to bring before the Court.
On May 2, 2022,Politicoreleased a leaked first draft of a majority opinion written by JusticeSamuel Alito, which had been circulated among the court in February 2022. Alito's draft wrote, "We hold thatRoeandCaseymust be overruled. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives." The release of a draft opinion for a pending case was unprecedented in recent Supreme Court history. The document was not a final decision, and the justices were still able to change their votes. The document was thought to reflect both the justices'preliminary votingand the outcome of the internal Court procedure for deciding who is assigned to write the majority opinion.A press release from the Supreme Court confirmed the leaked document's authenticity, and Chief JusticeJohn Robertsin a statement described its release as a "betrayal of the confidences of the Court".The leaked draft regarding the decision sparkedprotests.
On June 24, 2022, the Supreme Court ruled 6–3 to uphold Mississippi's Gestational Age Act, and 5–4 to overruleRoeandCasey. Similar to the leaked draft opinion, the opinion of the court written by Justice Alito stated thatRoewas "egregiously wrong from the start" and its reasoning "exceptionally weak". It also stated thatRoehas "enflamed debate and deepened division" and that overruling it would "return the issue of abortion to the people's elected representatives".The majority opinion relied on a constitutional historical view of abortion rights, saying, "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."The reasoning was that "abortion couldn't be constitutionally protected. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy."Some historians argued that this view is incomplete,with Leslie J. Reagan saying that Alito "speciously claims" the truth of his assertions.In their dissent, JusticesStephen Breyer,Elena Kagan, andSonia Sotomayorjointly wrote, "The rightRoeandCaseyrecognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other."
Generally, presidential opinions followingRoehave been split along major party lines. The decision was opposed by presidentsGerald Ford,Ronald Reagan,George W. Bush,andDonald Trump.PresidentGeorge H. W. Bushalso opposedRoe, though he had supported abortion rights earlier in his career.
PresidentRichard Nixonappointed Justices Burger, Blackmun, and Powell who voted with the majority, and Justice Rehnquist who dissented.President Nixon did not publicly comment aboutRoe v. Wade.
During his early career, PresidentJimmy Cartersupported legalizing abortion in order to save the life of a woman or in the event of birth defects, or in other extreme circumstances.As president, he thought abortion was wrong, but stated that he "accepted myobligation to enforcetheRoe v. WadeSupreme Court ruling, and at the same time attempted in every way possible to minimize the number of abortions."In 2012 he reflected, "I never have believed that Jesus Christ would approve of abortions and that was one of the problems I had when I was president having to upholdRoe v. Wade..." He urged theDemocratic Partyto take a position supporting pregnant mothers to minimize economic and social factors driving women to get abortions. He also wanted the party to take stand in favor of banning abortion except for those whose lives "are in danger or who are pregnant as a result of rape or incest."
Roewas supported by presidentsBill ClintonandBarack Obama.In 1981, then-SenatorJoe Bidenvoted for aconstitutional amendment allowing states to overturnRoe v. Wade, which he voted against the following year.In a 2007 memoir, Biden expressed an opinion that although he was "personally opposed to abortion" he did not have the "right to impose" his personal opposition onto others.In 2021, he described himself to reporters as "a strong supporter ofRoe v. Wade", and added, "And I under— I respect people who think that—who don't supportRoe v. Wade; I respect their views.  I respect them—they—those who believe life begins at the moment of conception and all. I respect that. Don't agree, but I respect that. I'm not going to impose that on people."
Federal bills, amendments, or laws regardingRoeinclude theWomen's Health Protection Act,Freedom of Choice Act,Partial-Birth Abortion Ban Act,Born-Alive Infants Protection Act,Unborn Victims of Violence Act,Interstate Abortion Bill,No Taxpayer Funding for Abortion Act,Pain-Capable Unborn Child Protection Act,Partial-Birth Abortion Ban Act of 1995,Sanctity of Human Life Act,Sanctity of Life Act,Hyde Amendment,Freedom of Access to Clinic Entrances Act, and theBaby Doe Law.
Following the passage of the Texas Heartbeat Act and the Supreme Court's acceptance of theDobbs v. Jackson Women's Health Organizationcase,and the threat the case poses toRoein the eyes ofRoesupporters,Neal Kumar Katyal, a law professor and former acting solicitor general of the United States, said that instead of abortion regulation by the judicial branch, Congress could "codify the rights two generations have taken as part of American life",and "nullify the threat to reproductive health posed by the Mississippi case."Thomas Jipping of theHeritage Foundationwrote that the Women's Health Protection Act is unconstitutional because it regulates how state legislatures regulate abortion and abortion services rather than directly regulating abortion at the federal level.Views that the WHPA is unconstitutional or should otherwise be opposed were expressed during Senate Judiciary Committee hearings in 2014.
At the state level, there have been many laws about abortion. In the decade afterRoe, most states passed laws protecting medical workers with aconscientious objection to abortion. Nine states which had legalized abortion or loosened abortion restrictions prior toRoealready had statutory protection for those who did not want to participate in or perform an abortion. As of 2011, forty-seven states and the District of Columbia had laws allowing certain people to decline to perform certain actions or provide information related to abortion or reproductive health.At the federal level, theChurch Amendment of 1973was proposed to protect private hospitals objecting to abortion from being deprived of funding. It first passed the Senate, 92–1, then a slightly modified version passed the House, 372–1, and the final bill which contained it passed the Senate 94–0.Justice Blackmun supported this and other regulations protecting individual physicians and entire hospitals operated by religious denominations.
Some states have passed laws to maintain the legality of abortion ifRoe v. Wadeis overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada, and Washington.Other states have enacted so-calledtrigger lawsthat would take effect in the event thatRoe v. Wadeis overturned, with the effect of outlawing abortions on the state level. Those states include Arkansas, Kentucky, Louisiana, Mississippi, North Dakota, and South Dakota.Additionally, many states did not repeal pre-1973 statutes against abortion, and some of those statutes could again be in force ifRoewere reversed.
On April 16, 2012, Mississippi House Bill 1390 was signed into law.The law attempted to make abortion unfeasible without having to overturnRoe v. Wade.JudgeDaniel Porter Jordan IIIof theUnited States District Court for the Southern District of Mississippigranted an injunction against the law on July 13, 2012.On April 15, 2013, he issued another injunction which only applied to a part of the law which required the individual performing the abortions to have hospital admitting privileges.On July 29, 2014, a three-judge panel from theU.S. Court of Appeals for the Fifth Circuitupheld the injunction against part of the law, with JudgeEmilio M. Garzadissenting. The ruling especially relied on a case unrelated toRoewhich was decided "nearly fifty years before the right to an abortion was found in thepenumbrasof the Constitution".On February 18, 2015, Mississippi asked the Supreme Court to hear the case, but they declined to hear it on June 28, 2016.
TheHuman Life Protection Actwas signed by Alabama governorKay Iveyon May 14, 2019, in hopes of challengingRoe v. Wadein the Supreme Court.It includes exceptions for a serious health risk to the mother or alethalfetalanomaly, but otherwise it will make abortion afelonyfor the abortion doctor if it goes into effect. Women subjected to an abortion will not be criminallyculpableor civillyliableunder the law.On October 29, 2019, JudgeMyron Thompsonfor theU.S. District Court for the Northern District of Alabamaissued a preliminary injunction against the law.
In May 2021, Texas lawmakers passed Senate Bill 8, creating theTexas Heartbeat Act, banning abortions except in cases of medical emergency as soon as a fetal heartbeat can be detected.This is typically as early as six weeks into pregnancy and often before women know they are pregnant. The law established that any Texas resident who is not a state or local government employee or official can sueabortion clinicsand doctors who are known to be "aiding and abetting" abortion procedures after six weeks.A clause forbids anyone who impregnated an abortion patient through rape,sexual assault, or incest to sue concerning the patient.Theenactmentdate was September 1, 2021, and the U.S. Supreme Court, in a 5–4 decision, declined a request to block enforcement of the law that day.On October 22, 2021, the Court again did not block the law's enforcement, and agreed to hear arguments forUnited States v. Texason November 1, 2021.They limited the question to a review ofstanding.On December 10, 2021, the Court dismissed the lawsuit on the basis that lower courts should not have accepted it.This decision allows lawsuits against the executive directors of Texas's medical, nursing, and pharmacy licensing boards and also against the executive commissioner of theTexas Health and Human Services Commission, but not certain other lawsuits seeking to overturn the law.
Roe v. Wadecaused a 4.5% decline in births in states that had not previously legalized abortion.According to a 2019 study, ifRoe v. Wadeis reversed and some states prohibit abortion on demand, the increases in travel distance are estimated to prevent at a low estimate of over 90,000 women and at a high estimate of over 140,000 women from having abortions in the year following the ruling's overturning.IfRoewere to be overturned by a constitutional amendment which would apply to all the states,fertilitycould be expected to increase by 11% because then mothers would not travel to states where abortion is legal.Although the legalization of abortion in the United States increased thelabor supplyof fertile-aged women in the workforce, it decreased the labor supply of older women. This is thought to be due to the fact they now had fewer opportunities to financially support grandchildren. Older women whose labors became less necessary for the family's financial wellbeing either left or stayed out of the workforce.SinceRoe, the risk of death due to legal abortion fell considerably due to increased physician skills, improved medical technology, and earlier termination of pregnancy.Various studies have shown that overturningRoecould have adverse socio-economic conditions, higher maternal mortality,and other negative impacts.
The Donohue–Levitt hypothesis about thelegalized abortion and crime effectproposed that legalized abortion was responsible for reductions in the crime rate. If there is a relationship between abortion and crime, there are several possibilities that could explain how abortion lowers crime. One possibility is that crime is disproportionally committed by young males, and legalizing abortion reduced the number of young males. Another possibility is that children born in the post-legalization era are less likely to commit crimes. If this is the case, it might be explained in two ways. One way is that the sort of women who have abortions are not representative of pregnant women as a whole; rather they are the sort who are most likely to give birth to children who grow up to be criminals. In this way, abortion serves toshape American family structure.Studies linking demographics to crime have found that children born to American teenagers, unmarried mothers, and mothers with lower incomes are more likely to engage in criminal activity as adolescents.Abortion rates are higher for these demographics. A second possible way to explain it is that women use abortion to prevent births until they are most able to provide a stable home environment. Factors involved in stability include the age, education, income, of the mother, her use of drugs and alcohol, the presence of a father, and wanted as opposed to unwanted pregnancies.Another hypothesis is theRoe effect, which tries to explain why the practice of abortion would eventually lead to abortion being restricted or outlawed. The hypothesis is that people in favor of abortion rights would not parent as many children when abortion is legal, and since children tend to have similar views to their parents eventually voters would not support abortion rights.Critics have argued that Donohue and Levitt's methodologies are flawed and that no statistically significant relationship between abortion and later crime rates can be proven.
Into the 21st century, polls of Americans' opinions about abortion indicated they are about equally divided. Several organizations, among themGallup,Pew Research Center,andHarris Insights & Analytics,conduct abortion orRoe v. Wade-related polls. Regarding theRoedecision as a whole, more Americans supported it than supported overturning it.In the 2000s, when pollsters describe various regulations thatRoeprevented legislatures from enacting, support forRoedropped.
Into the 2010s, poll results relating to abortion indicated nuance and frequently do not directly match up with respondents' self-identified political affiliations.In 2021, anABC News/Washington Postpoll found that 58% of those with children living at home wanted to seeRoe v. Wadeupheld, compared to 62% of those without children at home. AnAll in Togetherpoll found that only 36% with children living in their house opposed theTexas Heartbeat Act, compared to 54.9% without children.After the Supreme Court's decision in June 2022 to overturnRoe v. Wade, a newCBC News/YouGovpoll showed 59% disapprove of the decision, and of women polled, 67% disapprove. According to the same poll, 52% of the participants called the court's decision a "step backward" for America, 31% said it is a "step forward", and 17% say it was neither.A January 2023Gallup pollfound that nearly 7 in 10 Americans disapprove of the country's abortion policies, the highest rate in 23 years.
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