CASE:

ROE V WADE (1973)

Introduction

 

Over the past half-century, abortion has emerged as one of the most controversial issues in American society. Following European legal traditions, seventeenth and eighteenth-century midwives and doctors performed abortions up until the quickening, the point at which a woman could feel a baby’s movement. With the rise of modern surgical procedures, credentialing and professional organization of doctors, and religious revivalism in the early 1800s, states began to pass laws outlawing not merely abortions but various forms of birth control. Starting in the early twentieth century, social reformers such as Margaret Sanger began to campaign to repeal state contraception laws.

 

While birth control pills had been released in 1960, they were still illegal to advertise and purchase in many parts of the United States. Many women could not control their reproductive cycles, had no choice and depended on their spouse’s decision. Even though this was the case, it was the culmination of these familial decisions that had brought down the state’s laws banning the use of contraceptives, even by married couples.

 

 

Constitutional Issue Raised in the Case

 

In 1965, the U.S. Supreme Court heard the landmark case of Griswold v. Connecticut, which involved government-imposed regulation on the use of birth control and other contraceptives. Estelle Griswold, the executive director of the New Haven Planned Parenthood league, had been arrested for giving out information to a married couple about using a contraceptive device to prevent pregnancy, which was against state law at the time. In a 7-2 decision, Justice William O. Douglas argued that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” In particular, Douglas maintained that the right of a married couple to the privacy of their bed-chamber was older than the Bill of Rights itself. As such, Connecticut officials could not penalize the use of contraceptives by married couples.

 

Jane Roe, also known as Norma McCorvey, was born into a working-class family in Simmesport, Louisiana, in 1947. Following abandonment by her father and physical abuse from her alcoholic mother, McCorvey entered a series of boarding schools and foster homes. Struggling with alcohol and drug addiction, she had two children but gave them up for adoption. During a time of strictly defined gender identities, McCorvey also faced stigma as a lesbian. In 1969 McCorvey became pregnant again. Seeking an abortion, she was turned away by doctors because abortion was illegal under Texas law.  Making contact with young Dallas attorneys Linda Coffee and Sarah Weddington, McCorvey filed a class-action lawsuit in Federal District Court under the alias “Jane Roe” against Henry Wade, the Dallas District Attorney charged with prosecuting abortion cases. In crafting their decision, U.S. District Judges Sarah Hughes and William Taylor, Jr and U.S. Circuit Judge Irving Goldberg drew heavily from the concept of privacy rights as laid down in the Griswold precedent. On June 17, 1970, the Justices found that "[T]he Texas abortion laws must be declared unconstitutional because they deprive single women and married couples, of their right, secured by the Ninth Amendment, to choose whether to have children." Texas officials appealed the case to the U.S. Supreme Court the following year.

 

Citation and Decision

Roe v. Wade, 410 U.S. 113 (1973)  | Full Decision

 

After two rounds of oral arguments, Justice Henry Blackmun delivered the High Court's majority opinion (7-2). He asserted that Texas’s abortion law which prevented abortions except when the life of the mother was at stake, violated “the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman‘s qualified right to terminate her pregnancy.” Acknowledging that the state had legitimate interests in regulating abortion procedures, Blackmun stated that during the first trimester or twelve weeks of pregnancy, women and their doctors had the sole right to decide to abort. Once a fetus reached viability, state officials could “regulate, and even proscribe, abortion except where medically necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Declining to define when life began, Blackmun admitted that future developments in medical technology could influence when viability could begin.

 

Justice William Rehnquist authored a dissenting opinion. He argued that as McCorvey was no longer pregnant at the time of the case, she no longer had the standing to sue in court. In addition, abortion was not a private matter, and that state legislatures only needed a rational rather than a compelling reason for outlawing abortion. As such, “the states’ statutes surely had a rational relationship to the goal of saving the unborn child.”

 

The Roe decision proved to be one of the most controversial in Supreme Court history. Conservative and religious leaders condemned the decision, and pro-life movements such as Operation Rescue quickly sprang up around the country. The appointment of future Supreme Court justices who might overturn or uphold Roe v. Wade became a hot-button political issue for presidential candidates. Over the next forty years, future Supreme Court cases such as Webster v. Reproductive Health Services (1989), Planned Parenthood of Southeastern Pa. v. Casey (1992), Gonzales v. Carhart (2007), and  Gonzales v. Planned Parenthood Federation of America, Inc. (2007) would put limitations on the Roe decision without overturning the precedent completely.

 

Following Roe, Norma McCorvey revealed her identity as Jane Roe in a series of interviews. Although initially a pro-choice advocate who worked in a North Dallas abortion clinic, in 1995, McCorvey converted to Evangelical Protestantism and became an outspoken pro-lifer. On her deathbed in 2017, she recanted her pro-life views and insisted that she had been paid money to express such beliefs.


 

Discussion Questions

1. Was the right to abortion in control of government regulation?

 

2. Did the Constitution stand by the choice of a woman’s rights to terminate her pregnancy?

 

3. Should government interference still be allowed during the third trimester of a women’s pregnancy?

 

4. Does the decision of Roe v. Wade fall under the protections of the 14th Amendment?

 

5. Does the ruling of Roe v. Wade still stand as a symbol of women’s rights?


 

Links

We'll Hear Arguments: Roe v. Wade

Reversing Roe (documentary film)

Planned Parenthood: Roe v Wade