Roe v. Wade Legalizes Abortion and Extends Privacy Rights

The US Supreme Court established a pregnant woman’s constitutional right to an abortion. The decision overturned abortion laws in most states and has occasioned decades of political controversy and litigation. The LGBT community benefited from the reasoning in Roe v. Wade because the case has been used by some state courts to strike down statutes that impinge on private, same-gender sexual activities between consenting adults.

Date January 22, 1973

Locale Washington, D.C.

Key Figures

• Norma Jane McCorvey (b. 1947), plaintiff known as “Jane Roe”
• Sarah Weddington (b. 1945), Roe’s attorney
• Henry Wade (1915-2001), district attorney of Dallas County
• Harry A. Blackmun (1908-1999), associate justice of the United States and author of the Court’s opinion
• Byron White (1917-2002), associate justice of the United States and a dissenter

Summary of Event

Roe v. Wade (1973) sprang from the attempt of “Jane Roe” (Norma Jane McCorvey) to terminate her pregnancy by means of abortion in Texas in 1970. Texas law forbade abortion except “for the purpose of saving the life of the mother.” Roe’s life was not endangered by her pregnancy. With the encouragement of her attorney, Sarah Weddington, Roe decided to challenge the Texas statute on constitutional grounds.

A federal district court suit was brought against Henry Wade, the district attorney of Dallas County, asking that he be ordered not to enforce the Texas abortion statute on the ground that it unconstitutionally interfered with a pregnant woman’s right to personal privacy. The district court agreed with Roe, and Texas appealed to the US Supreme Court. The case was first argued on December 13, 1971, reargued on October 11, 1972, and decided by the Court on January 22, 1973.

The fundamental issue in Roe v. Wade was whether “personal privacy” rights included the right of a woman to choose to have an abortion. By 1971, the Supreme Court had already extended the idea of “liberty” protected under the due process clause of the Fourteenth Amendment to include some marital and personal privacy rights. The most important precedent was Griswold v. Connecticut (1965), the Connecticut birth control case. A Connecticut law forbade the dissemination of birth control devices or information. The Court decided that married people have a constitutional right to receive and use contraceptive devices and information. The same right was extended to unmarried people in Eisenstadt v. Baird (1972). In these cases the Court assumed for the first time that there is a “zone of privacy” that protects private family and sexual decisions.

The Court’s decision in Roe v. Wade was written by Justice Harry A. Blackmun for a 7–2 majority. Dissenting opinions were submitted by Justices William Rehnquist and Byron White. The majority held that a pregnant woman does have the right to an abortion on demand in the first trimester of pregnancy. In the second trimester, the state is free to place some restrictions on the right in order to protect the health of the mother. In the third trimester, after the child has “quickened,” the state may have the power to prohibit abortion altogether.

The majority opinion balances the interests of the state governments against the personal privacy rights of women. The state’s interest is to protect unborn life and the safety and health of pregnant women. Roe’s interest is what the Court called “the fundamental right of single women and married persons to choose whether to have children.” By tying the right to an abortion to the right to choose whether to have children, Blackmun brought the case more squarely within the precedent established by Griswold v. Connecticut. The decision substantially increased women’s autonomy both within and without the family.

The main dissenting opinion was submitted by Justice White. It argues that there is no constitutional warrant to establish a new constitutional right that substitutes a balancing of the competing values by the Court rather than by state legislatures.

Significance

The immediate or direct effect of Roe v. Wade was to empower women to avoid having unwanted children. Since the Supreme Court made its decision, there have been millions of abortions in the United States, a fact often cited by opponents of the decision.

Roe v. Wade continues to be enormously controversial. Since the case was decided, there have been constant efforts by its opponents to overturn it and by its supporters to protect the rights it establishes. The passions raised by this case have led to violence and harassment. Several physicians have been shot to death or beaten, and there have been many bombings and arson attacks at family planning clinics. The issue has been before the Supreme Court in one form or another in nearly every Court term since 1973. Because the decision in the case appeared to many people to be political rather than judicial in character, there have been many marches or demonstrations at the Supreme Court itself.

Supreme Court cases which drew on Roe v. Wade as a precedent include Planned Parenthood v. Casey, challenging a Pennsylvania law which required a married woman to get her husband's consent before seeking an abortion, and Stenberg v. Carhart, challenging a Nebraska law which made the late-term abortion procedure known as dilation and extraction illegal. Though both statutes were struck down based on the precedent set by Roe, the decision in Stenberg v. Carhart was effectively, if not technically, overruled in Gonzales v. Carhart, which upheld the constitutionality of the Partial-Birth Abortion Ban Act of 2003. Meanwhile, McCorvey, the plaintiff in the original case, later became a pro-life activist and sought to have Roe v. Wade overturned, but the Fifth Circuit Court of Appeals decided that her case was moot, and the Supreme Court upheld that decision.

In May 2022, a draft of a majority opinion written by Justice Samuel Alito related to Dobbs v. Jackson Women's Health Organization, a case which challenged Mississippi's 2018 Gestational Age Act (which outlaws most abortions after fifteen weeks) was leaked to the press. In the draft, Justice Alito strongly disagreed with the decision reached in Roe v. Wade and likened the Court's decision on the case to a mistake. After the draft was leaked, many Americans felt it was indicative of the Supreme Court's desire to overturn Roe v. Wade, and nationwide protests emerged as a result. Chief Justice John G. Roberts quickly issued a press release that both confirmed the authenticity of the leaked draft and condemned the breach of the Court's security.

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.

Bibliography

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