Roe v. Wade (Great Events from History: North American Series)
Article abstract: The U.S. Supreme Court rules that state laws prohibiting abortion are unconstitutional.
Summary of Event
By the early 1970’s, abortion laws in the United States had become an issue of public controversy. Among the factors promoting this interest were concern for overpopulation, the vigorous women’s rights movement, the overwhelming approval of physicians for liberalized abortion policies, and awareness that approximately one million illegal abortions occurred in the United States each year. Although by 1973, many states had revised and liberalized their abortion laws, arguments over these reforms were heated and bitter. On one side were those who argued that women should have unrestricted control over their bodies, and that this autonomy should include the freedom to terminate pregnancy medically. On the other side were those who maintained abortion was contrary to certain moral values and religious principles. The issue finally reached the United States Supreme Court in the case of Roe v. Wade, and was decided in January, 1973.
Norma McCorvey (Jane Roe) was an unmarried, impoverished pregnant woman who wanted to terminate her pregnancy by abortion in Texas, a state that prohibited abortion as a serious crime, except in cases where medical advice held that the life of the mother was otherwise endangered. The Texas statute was typical of state laws at the time. Roe first brought...
(The entire section is 1633 words.)
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Roe v. Wade (West's Encyclopedia of American Law)
Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), was a landmark decision by the U.S. Supreme Court that declared a pregnant woman is entitled to have an ABORTION until the end of the first trimester of pregnancy without any interference by the state.
In a 7 decision on January 22, 1973, the Supreme Court struck down an 1857 Texas statute that made abortion illegal except where the life of the mother was in danger. The Court's opinion, as written by Justice HARRY A. BLACKMUN, set forth guidelines for the drafting of future state legislation on the issue. In a long and detailed opinion, the Court specified the points during a woman's pregnancy when the interests of the state in the health of the mother and of the fetus emerge. Roe established the parameters of the abortion debate for decades to come.
The case involved an unmarried pregnant woman who was at the time identified only as Jane Roe in order to maintain her anonymity but who has since publicly identified herself as Norma McCorvey. McCorvey, a resident of Texas, wanted to have an abortion, but the existing state law prevented her from doing so. She filed a lawsuit in federal district court on behalf of herself and all other pregnant women. The suit sought to have the Texas abortion law declared unconstitutional as an invasion of her right to privacy as guaranteed by the First, Fourth,...
(The entire section is 3066 words.)
Roe v. Wade (West's Encyclopedia of American Law)
Opinion of U.S. District Court, N.D. Texas, June 17, 1970 . . . . . . . .499
Briefs to the U.S. Supreme Court
Brief for Appellant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .505
Brief for Appellee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .517
Supplemental Brief for Appellants . . . . . . . . . . . . . . . . . . . . . . . .535
Opinion of the Supreme Court, January 22, 1973 . . . . . . . . . . . . . .542
HOW TO USE MILESTONES IN THE LAW
This section allows readers to investigate the facts, the arguments, and the legal reasoning that produced the Roe v. Wade decision. It also sheds light on the roles and required skills of attorneys and judges in resolving disputes.
As you read this section, you may wish to consider the following issues:
- How did the appellant's description of the issues before the Court, or questions presented, differ from the appellee's descriptions?
- How did the courts and the two...
(The entire section is 308 words.)
Roe v. Wade (Great American Court Cases)
Legal Citation: 410 U.S. 113 (1973)
Norma McCorvey, using "Jane Roe" as an alias and representing all pregnant women in a class-action suit
Henry B. Wade, Texas District Attorney
The Texas' abortion laws violated McCorvey's and other women's constitutional rights.
Chief Lawyers for Plaintiff
Sarah Weddington and Linda Coffee
Chief Defense Lawyers
Jay Floyd and Robert Flowers
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., Warren E. Burger, William O. Douglas, Thurgood Marshall, Lewis F. Powell, Jr., Potter Stewart
William H. Rehnquist, Byron R. White
Date of Decision
22 January 1973
Overturned all state laws restricting women's access to abortions during the first trimester of pregnancy and let stand second-trimester restrictions only insofar as they were designed to protect the health of pregnant women.
The case was the first to...
(The entire section is 3499 words.)
Roe v. Wade (Supreme Court Drama)
Plaintiff: Norma McCorvey (known as Jane Roe)
Defendant: Henry B. Wade, Texas District Attorney
Plaintiff's Claim: That a 1859 Texas abortion law violated women's constitutional right to have an abortion.
Chief Lawyers for Plaintiff: Sarah Weddington and Linda Coffee
Chief Lawyers for Defendant: Jay Floyd and Robert Flowers
Justices for the Court: Harry A. Blackmun, William J. Brennan, Jr., Chief Justice Warren E. Burger, William O. Douglas, Thurgood Marshall, Lewis F. Powell, Potter Stewart
Justices Dissenting: William H. Rehnquist, Byron R. White
Date of Decision: January 22, 1973
Decision: Ruled in favor of Roe and struck down the Texas abortion law as unconstitutional.
Significance: The decision legalized abortion. The ruling included three key ideas. First, the ruling recognized the right of women to choose to have an abortion during the stage of pregnancy (one to six months) when the fetus has little chance of survival outside the womb and to obtain the abortion without unreasonable interference from the state. Secondly, the ruling confirmed a state's power to restrict abortions, except to protect a woman's life or health, at the stage (seven to nine months) when a fetus could live outside the womb. Third, the ruling confirmed the principle that the state has interests in both the health of the woman and the life of the fetus.
"My name is Norma McCorvey, but you know me as 'Jane Roe.' Twenty-one years ago, when I was poor and alone and pregnant, I was the plaintiff in Roe v. Wade, the Supreme Court decision that gave American women the right to choose abortion, to control their . . . own bodies, lives, and destinies" (from I Am Roe , an autobiography by Norma McCorvey).
For years after the Roe v. Wade decision McCorvey remained anonymous. But in the early 1990s she began to emerge as a public figure. She worked as a telephone counselor in an abortion clinic and later as a cleaning woman, but when time allowed she would travel to various parts of the country to speak at colleges and to women's groups. People reacted to McCorvey in different ways. Some saw her as a famous woman whose name appears in many publications. Others think of her as a "heavy-duty feminist theorist or even a politician," characterizations she laughed at in her autobiography. Those opposed to abortion often called her a "demon" or "baby-killer." But in her own words, "Actually, Norma McCorvey is none of these women. I'm just a regular woman who like so many other regular women, got pregnant and didn't know what to do. . . "
Perhaps more than any other U.S. Supreme Court decision in history, the Roe v. Wade ruling, legalizing abortion, aroused passion and controversy. The 1973 decision touched off a battle between supporters of the Pro-Life movement seeking to overturn the ruling and the Pro-Choice supporters working to prevent the decision from being reversed or weakened. The Pro-Life group viewed abortion as murder. The Pro-Choice group was completely convinced that denying a woman the "right to choose" whether or not to have an abortion was an unacceptable government invasion of her freedom and privacy.
A look back at the history of abortion legislation in the United States reveals the stage that was set for Roe v. Wade.
Abortion Legal History
No abortion laws existed in the United States until the nineteenth century. The American Medical Association (AMA), established in 1847, became interested in driving out of business unlicensed persons performing abortions. Joined by religious leaders, the AMA successfully lead campaigns to outlaw abortions. By the 1880s all states had laws banning abortions except those performed to save the mother's life. In the 1960s two incidents influenced a reexamination of abortion laws: (1) the discovery that thalidomide, a drug commonly prescribed for the nausea of early pregnancy, caused birth defects and (2) the 1962 to 1965 German measles epidemic. Both resulted in thousands of children born with often severe defects. Pregnant women affected by the incidents could not seek abortions due to the strict laws.
Influenced by the 1960s civil rights movement seeking equality for black Americans, women's rights organizations began to see abortion reform as an important step in the quest for equality of the sexes. Women, they reasoned, needed control of their bodies if they were to have control of their lives. Under the banner of reproductive freedom, they demanded outright repeal (cancellation) of state abortion laws. Soon, courts began to attack the most strict state laws. At the same time, the U.S. Supreme Court was developing a concept of the right to privacy in a person's sexual matters. Into this setting entered three women, Norma McCorvey, Sarah Weddington, and Linda Coffee.
Three Women From Texas
Twenty-one year old Norma McCorvey's marriage had ended, and her five year old daughter was being raised by her mother. In 1969 McCorvey, working as a traveling carnival ticket seller, became pregnant again. McCorvey first sought an illegal abortion but became terrified by what she discovered and decided against it. Although illegal abortions were fairly common, many women were permanently injured or died because of the unsanitary conditions under which the abortions were performed. The Texas anti-abortion law, adopted in 1859, prohibited abortions except when considered necessary to save the mother's life. Women who could afford it traveled to other states where abortion laws were less strict or where they could find a doctor who would certify that their abortion was necessary to protect their health. However, McCorvey was poor and, more often than not, poor women got the bad abortions.
Sarah Weddington and Linda Coffee were two of five women in the freshman law school class of 1965 at the University of Texas. Like many women of their generation, both of them became involved in the women's civil rights movement. With the doors to traditional law practices still largely closed to women at the time of their graduation, Weddington and Coffee decided to test the Texas abortion law. They began actively looking for a suitable case. Soon, Coffee learned of Norma McCorvey's plight. Although McCorvey's pregnancy would come to a conclusion before any lawsuit could successfully work its way through the courts,
A Jammed Dallas Courtroom
The case was first argued before three judges of the Fifth Circuit Court in Dallas on May 23, 1970. Coffee and Weddington had restructured their case to a class-action suit (a lawsuit representing a large number of people with a common interest) so that McCorvey would represent not just herself but all pregnant women.
Coffee and Weddington wanted a decision on whether or not a pregnant woman had the right to decide for herself if an abortion was necessary. They based their arguments on the Ninth and Fourteenth amendments to the U.S. Constitution. The Ninth Amendment stated that even though certain rights were not specifically named in the Constitution, they could still be held by the people. The Fourteenth Amendment prohibited states from denying citizens life, liberty, or property without due process of law (fair legal hearings). In 1965 the U.S. Supreme Court case Griswold v. Connecticut had clearly established a constitutional right to privacy found in and protected by the Ninth and Fourteenth amendments. In their case, Coffee and Weddington believed the right or liberty denied Roe by the Texas law was this right to privacy. The Texas law was, they stated, unconstitutional, violating privacy protections the Court found in both amendments. They reasoned this right to privacy should certainly protect the right of a woman to decide whether or not to become a mother.
District Attorney Henry Wade chose John Tolles to defend the enforcement of the Texas abortion law. The Texas Attorney General chose Jay Floyd to defend the law itself. The state prepared its case primarily on the basis that a fetus had legal rights which must be protected by the Constitution.
For the defense, Floyd first claimed that, since Roe's pregnancy had reached a point by that time where an abortion would certainly be unsafe, there was no case. Tolles followed by stating the position "that the right of the child to life is superior to that of a woman's right to privacy."
The three judges disagreed with Floyd and Tolles. They ruled that the Texas law violated Roe's right to privacy found in the Ninth and Fourteenth Amendment. A woman did have the right to terminate her pregnancy. The case proceeded to the U.S. Supreme Court.
A Landmark Decision
The case generated intense interest from all over the nation. Forty-two amici curiae or "friend of the court" briefs (summary of the beliefs of a certain group about the case) supporting a woman's right to choose an abortion were filed with the Court.
Standing before the Court on December 13, 1971, Coffee, Weddington, Floyd, and Tolles argued the case. However, only seven judges were present and, after hearing the arguments, they decided the case so important that it should be re-argued when the two newly appointed justices, William Rehnquist and Lewis Powell, had joined the Court. The four lawyers did so on October 10, 1972, repeating their arguments.
Justice Harry A. Blackmun wrote the majority opinion for the 7-2 Court which found in favor of Roe. On January 22, 1973, Justice Blackmun, acknowledging the extreme "sensitive and emotional nature of the abortion controversy," read his majority opinion in the Court chamber filled with reporters.
Rooted in Common Law
The Court first had to decide if the right to choose to terminate pregnancy was indeed a fundamental liberty protected by the Ninth and Fourteenth Amendment. Traditionally, the Court refuses to recognize new fundamental liberties unless they had historically been a right in English common law (based on common practices of a people through time) dating back sometimes as far as the twelfth and thirteenth centuries. Blackmun related the findings of the Court's research. Until the mid-nineteenth century, common law basically relied on the concept of "quickening." Quickening is the first recognizable movement of the fetus within the mother's womb, generally in the fourth to sixth months of pregnancy. Before quickening, the fetus (unborn child) was regarded as part of the mother rather than a separate person. Its destruction was allowed and not considered a crime. Even after quickening, early common law generally viewed termination of the pregnancy not as a crime, certainly not murder. Therefore, the termination of pregnancy was indeed rooted in common law. Laws strictly prohibiting abortion did not appear until in the mid-nineteenth century apparently to protect women's health from the then dangerous abortion procedure. Justice Blackmun concluded that abortion, allowed throughout common law, could be considered a protected liberty, and since medical advances had made abortion safe when properly carried out, no reason existed to continue the abortion laws.
Right of Privacy
Next, Justice Blackmun established that the right to an abortion fell within the right of privacy. Delivering the crucial point of the decision, Blackmun wrote,
The right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions on state action . . . or . . . in the Ninth Amendment's reservation of rights to the people is broad enough to encompass [include] a woman's decision to terminate her pregnancy.
Continuing, Justice Blackmun disagreed with Texas' claim that the law protected "prenatal life [before birth]." He explained that "the word 'person' as used in the Fourteenth Amendment, does not include the unborn."
However, Blackmun said that neither the woman's right to privacy in abortion nor the fetus' lack of a right to the state's protection was unlimited. He wrote,
The State does have an important and legitimate [honest] interest in preserving and protecting the health of the pregnant woman . . . and . . . it has still another important and legitimate interest in protecting the potentiality of human life [the not yet but soon to be born] . . . as the woman approaches term [ninth month of pregnancy]. . .
Roughly following the quickening concept in common law, Justice Blackmun offered the states a formula to balance these competing interests. During the first trimester (first three months of pregnancy) the decision to abort would be the mother's and her physician. During the second trimester (months 4-6; the stage when quickening occurs), a state might regulate the abortion "in ways that are reasonably related to maternal [mother's] health." This meant that the state, recognizing several medical procedures existed to carry out abortion, must encourage the procedures which are safest for the mother's health. The fetus, at this stage, most likely could not live outside the mother's womb, so the mother's health is the primary concern. In the last trimester (months 7-9) until birth, a state might "regulate," even prohibit, abortion except to preserve the life or health of the mother. By this stage of pregnancy the fetus could likely live outside the womb, therefore emphasis should be shifted to protection of the unborn child. Hence, abortion may be prohibited.
The Texas abortion law was found unconstitutional and struck down.
Justices Rehnquist and Byron R. White dissented. Rehnquist disagreed that a medical abortion fell under the right of privacy. White believed the Court had wrongly considered a mother's convenience or whim over the "life or potential life of the fetus."
Pro-Life v. Pro-Choice
Following the decision in Roe v. Wade, nineteen states needed to rework their abortion laws while thirty-one, including Texas, saw their strict anti-abortion laws entirely struck down. Immediately, Roe opponents, "Pro-Life" groups, began their assault on the decision. Several constitutional amendments prohibiting abortions were introduced in Congress. When these failed, Roe's opponents tried to organize the required thirty-four state legislatures to call for a constitutional convention but this also failed by the mid-1980s.
By the early 1980s the Republican Party adopted the Pro-Life position, gaining support of many religious leaders' but losing much support among women. Both Republican presidents, Ronald Reagan and President George Bush, asked the Supreme Court to overturn Roe. The Democratic Party, which supported Roe, benefitted from the women's vote as Bill Clinton, a supporter of a woman's right to choose, was elected president in 1992 and 1996.
By 1999, Gallup polls showed that 45 percent of Americans fell into the Pro-Choice camp, believing an abortion decision must be left to the woman and her physician. Forty-two percent considered themselves Pro-Life supporters. Pro-Lifers were well-organized, well-funded, and on occasion radical elements turned violent.
Following the Roe decision, many of the Supreme Court's more liberal members retired in the 1980s and 1990s. The more conservative Court steadily allowed the states more flexibility in regulating abortion and indicated a willingness to re-examine the Roe decision. Many predicted Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) would overturn Roe, but the Court upheld Roe. In the year 2000, the basic decision still stood.
Suggestions for further reading
Faux, Marian. Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision That Made Abortion Legal. New York: Macmillan Publishing Company, 1988.
McCorvey, Norma. I Am Roe: My Life, Roe v. Wade, and Freedom of Choice. New York: HarperCollins Publishers, Inc., 1994.
Stevens, Leonard A. The Case of Roe v. Wade. New York: G. P. Putnam's Sons, 1996.
Weddington, Sarah. A Question of Choice. New York: Putnam, 1992.