Roe v. Wade
Roe v. Wade was a landmark 1973 Supreme Court case that established the constitutional right to abortion in the United States. The case arose amid significant controversy surrounding abortion laws, with many states only permitting the procedure in life-threatening situations. The Court, led by Justice Harry Blackmun, ruled by a 7-2 majority that a woman's right to privacy, as derived from the Fourteenth Amendment, includes the decision to terminate a pregnancy. This ruling outlined a trimester framework regulating state interests: women had complete autonomy in the first trimester, while states could impose some regulations in the second and could restrict abortions in the third trimester except when necessary for the mother’s health.
The decision sparked ongoing debates and legal challenges over reproductive rights, often aligning with broader socio-political movements and changing judicial philosophies. In subsequent decades, the Court allowed states to impose certain restrictions, culminating in the 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade, asserting that the Constitution does not guarantee the right to abortion. The reversal of Roe returned the authority to regulate abortion to individual states, leading to immediate legal changes in several states that had pre-existing laws to criminalize abortion if Roe were overturned. The case remains a pivotal point in discussions about reproductive rights, legal precedent, and individual freedoms in America.
Roe v. Wade
Date: January 22, 1973
Citation: 410 U.S. 113
Issue: Abortion
Significance: The Supreme Court ruled that a woman has a constitutional right to terminate an unwanted pregnancy before the fetus acquires viability and that a fetus is not a person under the Fifth and Fourteenth Amendments.
By the early 1970s, a great deal of controversy had arisen about abortion laws. The majority of states permitted abortions only when necessary to save the life of the pregnant woman. Some sixteen states allowed abortions under other circumstances, such as pregnancies resulting from rape and incest. In 1970, three states enacted liberal laws that allowed some form of abortion on demand. As American culture placed greater emphasis on individual freedom, the number of illegal abortions appeared to be growing, often using primitive methods in unsanitary conditions. With the revitalized feminist movement, the right to terminate unwanted pregnancies was increasingly defined as an issue of gender equality.
The Supreme Court gradually accepted the theory of a constitutionally protected right to generic privacy, emphasizing personal choice in marriage, child-rearing, and procreation. The court significantly expanded privacy rights in Griswold v. Connecticut (1965), which struck down a state law prohibiting the sale of contraceptives. The Griswold majority located the right to privacy in three main places: the “penumbras” of the Bill of Rights, the substantive “liberty” protected by the Fifth and Fourteenth Amendments, and the unenumerated rights of the Ninth Amendment . In Eisenstadt v. Baird (1972), the Court explicitly recognized that the right to privacy included an individual’s reproductive freedom. Although Eisenstadt specifically dealt with the right to use contraceptives, the language in the majority’s opinion appeared broad enough to subsume the abortion issue.
Two Cases
In 1969 Norma McCorvey, an unmarried pregnant woman living in Texas, was unhappy to discover that the state criminalized abortions except when necessary to protect the life of the woman. She consulted two attorneys, Sarah Weddington and Linda Coffee, who were strongly dedicated to the cause of reproductive freedom for women. McCorvey, using the pseudonym Jane Roe, filed a class-action suit in federal court against Dallas district attorney Henry Wade, asking for an injunction to stop enforcement of the abortion law. A three-judge district court declared the Texas law unconstitutional but refused to issue an injunction because the constitutional issue remained unresolved. Weddington and Coffee, assisted by the American Civil Liberties Union (ACLU), appealed the case directly to the Supreme Court in 1971. That same year, Doe v. Bolton, challenging Georgia’s less restrictive abortion law, was also appealed to the court.
When the court agreed to hear the two abortion cases, numerous pro-choice and pro-life organizations presented amici curiae briefs. On December 13, 1971, the court, composed of only seven justices, heard oral arguments on the cases. At conference three days later, at least four of the justices agreed that the laws of Texas and Georgia were unconstitutional, but there was almost no agreement about the constitutional rationale or about whether the woman’s right to an abortion would apply to the entire period of the pregnancy. The chief justice assigned the cases to Justice Harry A. Blackmun. Six months later, Blackmun circulated a first draft that ruled only on the narrow issue of vagueness. For several reasons, the cases were reargued before a nine-member court on October 11, 1972.
A Right to Privacy
By a 7–2 vote, the court struck down the abortion laws of Texas and Georgia. Speaking for the majority, Justice Blackmun declared that a right to privacy, which derives primarily from the “concept of personal liberty” in the due process clause of the Fourteenth Amendment, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Her right to an abortion, although a fundamental right, is not unqualified and must be considered in relation to the state’s important and legitimate interests in protecting maternal health and the “potentiality of human life.”
Blackmun’s opinion outlined abortion rights in three trimesters. During the first three months of pregnancy, the abortion decision is entirely a private decision left up to the woman. After the end of the first trimester, the state may regulate procedures “in ways that are reasonably related to maternal health.” After the second trimester, as the fetus acquires the ability to survive independently of its mother, the state may proscribe abortions except when necessary “for the preservation of the life or health of the mother.” Presenting a survey of the historical record, Blackmun concluded that abortion laws at common law and throughout the nineteenth century had been less restrictive than those in effect in 1973. Finally, he concluded that there was no evidence that the word “person” in the Constitution referred to prenatal life.
Justices Byron R. White and William H. Rehnquist dissented. White criticized the court for giving greater value to the “convenience” of the pregnant woman than to “the continued existence and development of the life or potential life that she carries.” Finding the constitutional issues ambiguous, he wrote that the matter “should be left with the people and to the political processes the people have devised to govern themselves.” Justice Rehnquist wanted to evaluate abortion laws according to the rational basis test rather than the stricter compelling interest test. Observing that the majority of states had restrictive abortion laws on the books when the Fourteenth Amendment was ratified, he could find no evidence that the right to an abortion was “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
Roe was one of the most controversial decisions in the history of the court. As the court became more conservative in the 1980s, a bare majority of the justices continued to uphold the woman’s right to an abortion before viability, but they increasingly allowed state and local governments to place restrictions on abortion practices. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), a highly fragmented court abandoned the trimester framework and accepted an “undue burden” standard for determining whether regulations were acceptable.
Roe v. Wade continued to be controversial into the twenty-first century. In the case of Stenberg v. Carhart in 2000, the Court struck down a Nebraska ban on the second-trimester abortion procedure of intact dilation and extraction, but in 2003, Congress passed an act banning this procedure throughout the country. This led to Gonzales v. Carhart, in which the Court upheld the constitutionality of the statute, though the decision did not examine whether the decisions of Roe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart remained valid. (Justices Antonin Scalia and Clarence Thomas, however, filed a concurring opinion stating that they should be invalidated.) A number of states have enacted laws criminalizing abortion that would take effect if Roe were to be overturned, although others have enacted laws ensuring that abortion will remain legal under such circumstances. In 2013, the state of Texas made use of a loophole in the Roe decision by enacting controversial legislation placing assorted restrictions on abortion providers in the name of health regulations and causing any clinic that would not meet its extremely narrow standards—thirty-three of the state's existing forty abortion providers—to be shut down. However, as of 2015, the law was still being disputed and had not yet taken full effect. Ultimately, by June of the following year, the Supreme Court had struck down the two provisions of the law that represented these restrictions in a significant 5–3 ruling. The court determined that rather than supporting women's health as lawmakers claimed, the restrictions placed "undue burden" on women's rights to obtain abortions, a direct violation of the Planned Parenthood v. Casey ruling.
Despite this ruling in favor of women's reproductive rights, activists for these rights were concerned that Roe v. Wade could be negatively reformed or even completely overturned once Republican candidate Donald Trump was elected president of the United States in November 2016. Trump had indicated during his campaign that he would nominate a conservative judge to fill the vacant seat on the Supreme Court if elected and that he would work to defund Planned Parenthood. In February 2017, his nominee, conservative Neil Gorsuch, was sworn in as the newest Supreme Court justice.
In May 2022, a draft of a majority opinion written by Justice Samuel Alito pertaining to the Dobbs v. Jackson Women's Health Organization case (which challenged the 2018 Gestational Age Act passed in Mississippi that largely bans abortions after 15 weeks) was leaked, and in it, Justice Alito strongly disagreed with the decision of Roe v. Wade and expressed that the Court was wrong in its initial decision. Many Americans interpreted that the leaked opinion indicated the Supreme Court was moving to overturn Roe v. Wade, and nationwide protests resulted. Shortly after the leaked draft was circulated, Chief Justice John G. Roberts released a statement that confirmed the draft was authentic.
Then, in June of that year, the Supreme Court reached a decision on Dobbs v. Jackson Women's Health Organization that upheld Mississippi's Gestational Age Act and, in turn, overruled Roe v. Wade and the constitutional right to an abortion that Roe v. Wade established in 1973. The decision's opinion, which was written by Justice Alito, argued that the Constitution does not provide a right to abortion and that the decision reached in Roe v. Wade was based on incorrect reasoning and thus wrong from the start. By overturning the constitutional right to an abortion, the Supreme Court returned the decision of the legality of abortion to the state level. Due to state laws already in effect, the decision automatically banned abortion in several states.
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