Roe v. Wade (1973) - Draft from "Have To" History: Landmark Supreme Court Cases

I’ve recently been working on something I’m hoping other teachers might find useful for their own reference or for use in the classroom. It’s a compilation of a dozen or so of the most “Have To” Supreme Court cases in U.S. History – case summaries, excerpts from the majority opinions and periodically from dissents as well, and a few guiding questions over both the summaries and the opinion excerpts.

The goal is not breakthrough research on the cases themselves, but a practical guide for use by teachers as they see fit. None of us are experts on everything. Even the most informed among us have to stop and refresh our memory about any number of people and events as they arise, and unless you teach some form of American Government or Constitutional Law, that probably includes many of these landmark cases. More than that, I’ve found there to be a severe gap in existing resources – the “too basic to be engaging” variety in one pile and the “too detailed to be practical” flavors in the other.

“Have To” History: Landmark Supreme Court Cases looks to fill that gap. Plus, there’s all the money and glory that comes from posting curriculum on Teachers Pay Teachers or persuading some edu-publisher to roll the dice on you. Forget giving back or paying forward – deep down, this is about babes and bling.

The summary of Roe is still a bit longer than I'd like, but I'm open to suggestions that don't involve ideological outrage. Also, if you can tell where I personally stand on the issue from this draft, I'd like to know that as well, since it suggests I'm doing something seriously wrong. I'll post the excerpts from the various written opinions separately, and I haven't written the guiding questions yet. The final version will also include a single-page summary of the case and a single-page of excerpts from the majority opinion in order to give teachers greater flexibility depending on the level of their class and how much time they wish to devote to each case. A PDF is attached if you'd prefer reading it that way.

“Have To” History: Roe v. Wade (1973)

Stuff You Don’t Really Want To Know (But For Some Reason Have To) About Tiananmen Square

Roe v. WadeThree Big Things:

1. Roe v. Wade (1973) established the right for women to have an abortion, at least at some stages of pregnancy, as part of a constitutionally implied “right to privacy.”

2. Roe codified a trimester approach to abortion’s legality, with legal guidelines shifting as a pregnancy progressed. (This was later modified to more specifically reflect the viability of the fetus at various stages.)

3. Roe is one of the best-known and most-debated cases in Supreme Court history, despite its efforts to anchor its findings in historical approaches to abortion in western culture and an only recently-discovered “right to privacy” in the U.S. Constitution.

Background

Norma McCorvey was 21-years old when she discovered she was pregnant with her third child in the summer of 1969. Her friends in Dallas suggested she claim to have been raped, believing (incorrectly) that this would allow her to get a legal abortion in Texas. (State law at the time only allowed abortion “for the purpose of saving the life of the mother.”) She soon rejected this strategy and attempted to secure an illegal abortion instead, but the facility she chose had been shut down by authorities before she could do so.

It was at this point that McCorvey met two attorneys fresh out of University of Texas Law School – Linda Coffee and Sarah Weddington. Together they filed a lawsuit claiming McCorvey’s constitutional rights were being violated by anti-abortion legislation which was vaguely framed and overly restrictive. Henry Wade was the District Attorney in Dallas at the time, so he was named as the defendant. The name “Roe” was a standard pseudonym (like “John Doe”) used for women whose identity was either unknown or who – as in this case – wished to avoid public scrutiny.

Abortion at this time was regulated (or prohibited) on a state-by-state basis. Most had laws restricting the circumstances in which abortion was legal, and many had banned it outright, generally with exceptions for saving the life of the mother. At the same time, the nation was just emerging from the 1960s, a time of expanded sexual freedom and a dramatic shift in what sorts of rights – including those related to sex or sexuality – the Supreme Court was willing to protect. While Chief Justice Earl Warren had retired just as McCorvey was learning about her third pregnancy, the impact of the Court under his tenure was still very much in play. There was little reason to expect dramatic shifts in judicial philosophy under the new Chief Justice, Warren Burger.

The Decision

The Court ruled 7 – 2 that the Texas law prohibiting all abortions was unconstitutional. They did not, however, embrace the argument that women should have unrestricted access to abortions; the state could limit the practice to some extent. The Majority Opinion, written by Justice Harry Blackmun, can be broken into five basic sections addressing the various issues involved:

1. Justiciability. Is this something the Supreme Court should even be ruling on? By the time the case came before the Supreme Court, Norma McCorvey had had her baby – she wasn’t pregnant any longer, and the Court doesn’t do “theoretical” cases. Was the issue “moot”?

“Pregnancy provides a classic justification for a conclusion of nonmootness,” Justice Blackmun wrote. Because of the unique nature of pregnancy, following typical procedures would mean that no woman could ever bring suit on an issue related to her pregnancy since the system moves too slowly. He cites a wonderful phrase from an otherwise unremarkable 1911 case, Southern Pacific Terminal Co. v. ICC: “It truly could be ‘capable of repetition, yet evading review.’” The Court could hear the case. 

2. History. Blackmun starts with abortion policies under the Greeks and Romans and follows the thread all the way into the 20th century. Limitations or prohibitions of the practice, he notes, were far from universal. Those which did exist generally attempted to distinguish between the fetus as part of the mother’s body and the fetus as distinct living entity by identifying the moment of “quickening” – the point in the pregnancy in which the child moved under its own apparent volition, thus demonstrating one of the defining features of “life.” Other times it was the moment of “animation” – the state at which the fetus starts to look more like a baby than a glob or a stomach tumor. Neither was particularly scientific, but the takeaway was that it mattered how developed a “potential life” seemed to be when creating legal restrictions on eliminating it.

Overall, Blackmun found relatively few legal limitations of any sort on abortion prior to the late-19th century. Even when pregnancies were ended in violation of existing statutes, penalties were mild, and almost never impacted the mother directly. In short, while abortion was discussed and somewhat debated prior to the 20th century, it was hardly the explosive source of controversy it had become.

3. The “Right to Privacy.” The First Amendment protects, among other things, an individual’s right to be left alone in matters of faith or their choice of friends. The Third protects the privacy of citizens’ homes from soldiers in need of a place to crash. The Fourth protects that same property, along with any private “papers and effects,” from search or seizure without a compelling and well-documented reason. The Fifth protects individuals from sharing anything they don’t wish to, even in their own trials, and introduces due process into any situation where the government wishes to limit individual freedom or take your stuff.
The Ninth Amendment specifies that just because an individual right hasn’t been addressed in the previous eight, that doesn’t mean it doesn’t exist. The Framers may not have codified your prerogative to dye your hair, to own ferrets as pets, or to privatize space flight, but (the Ninth suggests) you absolutely have those freedoms unless the government (including the judicial branch) finds legitimate reasons you don’t.

Then, of course, there’s the Fourteenth Amendment. It’s here the “right to privacy” is most often discovered:

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

McCorvey’s team claimed that she was unable to get a “safe, legal” abortion because she could not afford to travel to where the procedure was allowed. The Texas statutes involved were “unconstitutionally vague” and violated her right of personal privacy as protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. She claimed to be suing not only for herself, but “on behalf of herself and all other women” similarly situated. The Court largely accepted this argument. Blackmun cites numerous precedents – none of which addressed abortion specifically, but all of which inferred some version of a “right to privacy” guaranteed by the Constitution. There’d been three particularly poignant examples in the decade leading up to Roe:

Griswold v. Connecticut (1965) – State restrictions on contraception were overturned based on the “zone of privacy” found in the First, Third, Fourth, Ninth, and Fourteenth Amendments, at least in reference to married couples. A few years later, Eisenstadt v. Baird (1972) extended this to unmarried couples as well. (In addition to laying the groundwork for Roe, Griswold would be cited decades later in cases decriminalizing various homosexual behavior and applying Fourteenth Amendment protections to same-sex couples.)

Loving v. Virginia (1967) – The Court declared unconstitutional a state law prohibiting marriage between citizens of different races. Their decision was founded on the Due Process protections of the Fourteenth Amendment. While less founded on “privacy” than other cases listed here, the Court’s decision did strengthen the idea that the government needed pretty strong justification for controlling private lives. (Not surprisingly, this one will also be cited a half-century later during arguments over same-sex marriages.)

Stanley v. Georgia (1969) – Individuals have the right to possess and view pornography in the privacy of their own homes. “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”

4. Is the Fetus A “Person”?

The majority carefully avoided taking a spiritual, ethical, or even medical stand on this one. Blackmun instead explored the use of the term “person” in the Constitution and concluded that it does not include anyone or anything pre-natal. “Persons” run for office or endure servitude, both of which would require first being born. The Fourteenth Amendment defines “citizens” in terms of “persons born or naturalized in the United States.” Blackmun was quick to clarify, however, that just as the State had an obligation to consider a woman’s health and safety, it could also be legitimately concerned with “potential life.” That’s not quite on par with being a citizen, or even a person, but it certainly implies a legal status better than, say, an extra kidney.

5. The Trimester Plan

The Court rejected McCorvey’s claim to unrestricted abortion rights as well as Texas’s mandate that life begins and conception and must not be interfered with except in extreme cases. Blackmun and the majority instead implemented a three-trimester approach based on historical precedents and medical understanding circa 1973.

During the first trimester (roughly the first three months of pregnancy), decisions about abortion are left to the woman and her doctor. There’s insubstantial evidence of “potential life” or viability as traditionally understood – certainly not enough to override a woman’s “right to privacy” or to medical decisions about her own body. During the second trimester, the state may begin regulating abortion procedures to protect the mother’s health. The State at this point has acquired a “compelling interest” in the well-being of the mother. It is only during the third trimester, the point at which the smaller entity could conceivably live outside the womb, that the state has “compelling interest” in the “potential life” of the unborn child. This may be offset by concern for the mother’s life or well-being, but otherwise the State may prohibit abortion at this stage or not, as it sees fit.

Aftermath 

As in many decisions made by the Warren Court before it, the majority in Roe was criticized for moving beyond the role assigned to it by the constitution. Even supporters of abortion rights have at times expressed a desire for more substantive foundation than the reasoning offered therein. On the other hand, variations of “give it more time, let the legislature get there on its own” have become a bit clichéd whenever rights are extended to those not already in social or political power, be they pregnant women, people of color, or others. Often it simply means, “we’d prefer to keep stalling on this indefinitely.” 

The issue is not simply one of legal specifics, of course. For those who frame the issue in terms of a woman’s “right to choose,” abortion laws are one more example of the misogynistic, oppressive, blame-and-shame culture of the political right. The idea that the conservatives who generally support such limitations intend to protect women and children is perceived as self-evidently ludicrous and entirely inconsistent with the remainder of their dogma and political choices. “Pro-choice” advocates are quick to point out how many of those opposing abortion rights are old white men unlikely to become pregnant themselves, and who’ve historically opposed any threats to their elite status – women’s suffrage, labor unions, civil rights, etc. “They’re not pro-life, just pro-birth” is a succinct expression of this frustration and the inherent accusations thereof.

For those who genuinely believe that life begins at conception, however – especially if they’re under the impression this is specified in the Bible – the question of abortion is far more than the political fulcrum it’s often become. For “pro-life” proponents, arguments about separation of powers, judicial activism, or substantive due process only obscure the central question behind them all: “Is it OK to kill babies?” It has pushed many to become “single-issue voters,” accepting an array of positions with little or no relation to fetal viability in order to demonstrate their opposition to what they see as a horrific, unforgivable practice.

The issue continues to rise to the forefront of political and social debate from time to time and has arguably been used to both rally and outrage voters by both sides of the proverbial aisle. As of this writing, the decision in Roe has been periodically challenged and somewhat modified but has not been overturned. Its place in case law is by no means entirely secure, however. There are many still anxious to revisit the issue, usually in the name of validating universal bans of abortion regardless of circumstances. We’ll see what happens.

You Want to Sound REALLY Smart? (Related Jurisprudence and Legislation)

Doe v. Bolton (1973) – Decided at the same time as Roe, Doe clarified that in matters of determining the impact of pregnancy on the “health” of the mother, “the medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman's age – relevant to the well-being of the patient.” This gives doctors (and their patients) subjective leeway and has subsequently been cited in cases involving abnormalities revealed by prenatal screening,

Supreme Court nominees are regularly asked their thoughts on Roe during confirmation hearings, and while most refuse to discuss it in detail, it’s become something of a “litmus test” for both liberals and conservatives. It rarely guarantees anything related to the issue once appointed.

The Hyde Amendment – Passed by Congress in 1976, this prohibits the use of federal funding to pay for abortions, particularly through Medicaid. It was upheld by the Court in the 1980 case of Harris v. McRae and has been in effect ever since with periodic modifications. It’s still a hot topic whenever the issue of abortion comes up during political campaigns.

Webster v. Reproductive Health Services (1989) – A split Court (5–4) upheld several abortion restrictions and adjusted the trimester system in Roe to reflect improved medical technology. 

Planned Parenthood v. Casey (1992) – Another split Court (5–4) decision, involving an array of Pennsylvania statues not entirely banning abortion, but clearly making it difficult for women to access (a mandatory “waiting period,” parental consent for minors, permission slips from husbands, etc.). The Court invoked the standard of “undue burden” to uphold parts of the legislation while invalidating others. The Court also shifted the focus from trimesters to viability to accommodate medical progress.

Stenberg v. Carhart (2000) – Yet another 5-4 decision (see a pattern?), this one involved so-called “partial birth abortions,” a term which meant absolutely nothing medically but certainly stirred up imagery and emotions. The Court struck down attempts by Nebraska to ban these procedures because they did not meet the basic requirements of Roe or Casey. There was no exception for the life or health of the mother, and the prohibition included pre-viability pregnancies, despite the methods so labeled were often the safest for the mother during the second trimester. Nebraska’s legislation thus triggered the “undue burden” on women referenced in Casey.

Gonzales v. Carhart (2007) – Another “partial birth abortion” ban, this time by Congress itself, and another 5-4 decision, this time allowing the legislation banning the procedure. The Court accepted government arguments that the statue referred only to a specific procedure, not to all abortion, and thus did not create “undue burden” and did not require an exception for the life or health of the mother since other options remained available.

Whole Woman's Health v. Hellerstedt (2016) – The Court in a 5-3 vote struck down Texas legislation imposing heightened requirements on abortion providers, finding they did little to increase safety or otherwise protect the mother but were mostly thinly veiled efforts to make it difficult to get an abortion – “undue burden.”

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