Tag: abortion

Roe v. Wade (1973) – Written Opinions {Excerpts}

~ Blue Cereal

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.

I shared an “in progress” summary of Roe which is still a bit longer than I’d like, and I’m open to suggestions that don’t involve ideological outrage. Below are excerpts from the various written opinions, also too long at the moment but OH SO DIFFICULT to edit because theyr’e so fascinating! I haven’t written the guiding questions yet, and 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.

Excerpts from Roe v. Wade (1973), Majority Opinion by Justice Harry Blackmun

{Edited for Classroom Use – Subheadings Added for Clarity}

Introduction and Contextualization

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes’ admonition in his now-vindicated dissent in Lochner v. New York (1905):

[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

Justiciability

The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated… But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be “capable of repetition, yet evading review.” (Southern Pacific Terminal Co. v. ICC, 1911)…

We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot…

History of Abortion Laws in Western Culture

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century…

By 1840, when Texas had received the common law, only eight American States had statutes dealing with abortion. It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening, but were lenient with it before quickening… Gradually, in the middle and late 19th century, the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother… In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws…

It is thus apparent that, at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy…

Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.

It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously…

A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman… Modern medical techniques have altered this situation… Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth… Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.

The third reason is the State’s interest — some phrase it in terms of duty — in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life… In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.

Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life… {T}hey claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest… They claim that adoption of the “quickening” distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception…

The “Right to Privacy”

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment (Stanley v. Georgia, 1969); in the Fourth and Fifth Amendments (Terry v. Ohio, 1968, Katz v. United States, 1967, Boyd v. United States, 1886)… in the penumbras of the Bill of Rights (Griswold v. Connecticut, 1965); in the Ninth Amendment…; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment (Meyer v. Nebraska, 1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” (Palko v. Connecticut, 1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage (Loving v. Virginia, 1967); procreation (Skinner v. Oklahoma, 1942); contraception (Eisenstadt v. Baird, 1972); family relationships (Prince v. Massachusetts, 1944); and childrearing and education (Pierce v. Society of Sisters, 1925, Meyer v. Nebraska, 1923)

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action… or… in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved…

On the basis of elements such as these, appellant… argue{s} that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute…

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation…
Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest” (Kramer v. Union Free School District, 1969, Shapiro v. Thompson, 1969, Sherbert v. Verner, 1963) and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake (Griswold v. Connecticut, 1965, Aptheker v. Secretary of State, 1964, Cantwell v. Connecticut, 1940)…

{In} recent abortion cases…, courts have recognized these principles. Those striking down state laws have generally scrutinized the State’s interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State’s determinations to protect health or prenatal life are dominant and constitutionally justifiable.
….

At What Point Should Government Step In to Protect the Unborn?

The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution… But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.

All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn… This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.

The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus… The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question… {but} the unborn have never been recognized in the law as persons in the whole sense.

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.”

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact… that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth…

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb… If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Measured against these standards, {Texas laws} restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here…

Summary and Clarification

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) 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.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

2. The State may define the term “physician”… to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined…

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention…

{The following footnotes, technically still part of the Majority Opinion as written by Justice Blackmun, are included not as essential elements of the decision but because they might be of interest to those who’ve read this far.}

Footnote 54. When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother’s condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment’s command?
There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out… that, in Texas, the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?

Footnote 67. Neither in this opinion nor in Doe v. Bolton {a related case whose decision was announced on the same day}, do we discuss the father’s rights, if any exist in the constitutional context, in the abortion decision. No paternal right has been asserted in either of the cases, and the Texas and the Georgia statutes on their face take no cognizance of the father. We are aware that some statutes recognize the father under certain circumstances…

Excerpts from Roe v. Wade (1973), Concurring Opinion by Justice Potter Stewart

{Edited for Classroom Use}

“In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” (Board of Regents v. Roth, 1972) The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the “liberty” protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights…
As Mr. Justice Harlan once wrote:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. (Poe v. Ullman, 1961, Dissenting Opinion)
…
In the words of Mr. Justice Frankfurter,

Great concepts like… “liberty”… were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged. (National Mutual Ins. Co. v. Tidewater Transfer Co., 1949, Dissenting Opinion)

Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. (Loving v. Virginia, 1967, Griswold v. Connecticut, 1965, Pierce v. Society of Sisters, 1925, Meyer v. Nebraska, 1923, Prince v. Massachusetts, 1944, Skinner v. Oklahoma, 1942) As recently as last Term, in Eisenstadt v. Baird, we recognized the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.

Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters (1925), or the right to teach a foreign language protected in Meyer v. Nebraska (1923).

Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.

Excerpts from Roe v. Wade (1973), Dissenting Opinion by Justice William Rehnquist

{Edited for Classroom Use}

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. (Katz v. United States, 1967).

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective…

The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective… But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The Court eschews the history of the Fourteenth Amendment in its reliance on the “compelling state interest” test. . But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the “compelling state interest test,” the Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it…

The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one… partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment… By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion… Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857, and “has remained substantially unchanged to the present time.”
…
For all of the foregoing reasons, I respectfully dissent.

Roe v. Wade (1973) – Draft from “Have To” History: Landmark Supreme Court Cases

~ Blue Cereal

This is an early draft of a chapter from “Have To” History: Landmark Supreme Court Cases. The final version is more concise and, I believe, a bit more clear.

“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.”