Roe et al. v. Wade: 1973

Plaintiff: Norma McCorvey, using "Jane Roe" as an alias and representing all pregnant women in a class-action suit
Defendant: Texas District Attorney Henry B. Wade
Plaintiff's Claim: That Texas' abortion laws violated McCorvey's and other women's constitutional rights
Chief Defense Lawyers: Jay Floyd and Robert Flowers
Chief Lawyers for Plaintiff: Sarah Weddington and Linda Coffee
Justices: Harry Blackmun, William Brennan, Warren Burger, William Douglas, Thurgood Marshall, Lewis Powell, William Rehnquist, Potter Stewart, and Byron White
Place: Washington, D.C.
Date of Decision: January 22, 1973
Decision: 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

SIGNIFICANCE: The case was the first to establish that a woman, rather than her physician, might be the party injured by a state's criminalization of abortion. Moreover, the decision was in large measure based on an implied "right to privacy" in the U.S. Constitution, which the majority held was violated by state laws restricting a woman's right to abort a fetus prior to its viability outside her womb.

The Supreme Court's landmark decision legalizing abortion in Roe v. Wade aroused more passion than perhaps any other in the Court's history. One segment of the population, energized by Catholic and fundamentalist religious beliefs, held that aborting the unborn was no less than murder. Another segment of the American people was just as convinced and just as adamant that denying a woman's "right to choose" whether or not to bear a child was an intolerable governmental restriction of her freedom and privacy. The decision in 1973 triggered a 20-year battle between its opponents, the self-described "Right to Life" movement who sought to overturn it, and proponents, the "Pro-Choice" advocates who worked to prevent it from being reversed or whittled away. Justice Harry Blackmun, who wrote the majority opinion, had his life threatened and his mailbox filled with letters calling him "Butcher of Dachau, murderer,Pontius Pilate, [and] Adolph Hitler." Each of the other justices received thousands of letters of condemnation as well.

Support for abortion rights had been growing steadily in the years prior to the decision and continued to increase afterward. In 1968, for example, less than 15 percent of the participants in a Gallup Poll approved "of liberalizing the abortion laws," while 40 percent of Gallup Poll respondents approved in the following year. By mid-1972, the Gallup Poll reported 73 percent of all participants and 56 percent of Catholic participants believed "that the decision to undergo an abortion is a matter that should be left solely to the woman and her physician."

Although they appear to be in a minority, those who object to Roe v. Wade do so with a seemingly undying passion; nearly 20 years later, as this is written, their opposition is well organized, well funded and at times even violent. It also has been partially successful: The basic decision still stands, but the high court has narrowed it somewhat by permitting states to regulate abortion for minors and abortions performed in tax-supported institutions.

Norma McCorvey Tests the Law

The "Jane Roe" whose name would be attached to this national divide was actually 21-year-old Norma McCorvey. McCorvey's marriage had ended, and her daughter, age 5, was being reared by McCorvey's mother and stepfather. In the summer of 1969, McCorvey was working as a ticket seller for a traveling carnival; by early autumn she had lost her job and had become pregnant. McCorvey wanted to end her pregnancy, but abortion was illegal in Texas except in cases where it was deemed necessary to save a woman's life. McCorvey's search for an illegal abortionist was unsuccessful.

However, it led her to two young attorneys, both women and both interested in challenging the existing abortion laws: Linda Coffee and Sarah Weddington. Although there was virtually no chance that McCorvey herself would be helped if Coffee and Weddington succeeded in overturning the abortion laws (one could count on pregnancy coming to a conclusion well before any lawsuit simultaneously began), McCorvey agreed to become Coffee's and Weddington's plaintiff in a test case.

Texas had passed its anti-abortion law in 1859. Like other such laws in the United States, it punished only the persons performing or "furnishing the means for" an abortion. This posed a problem for Coffee and Weddington: They knew it could be argued that a pregnant woman, presumably not the target of a law restricting medical practice, "lacked standing to sue" regarding that law's supposed unconstitutionality. And if they passed this hurdle with McCorvey's case, they knew they'd face another: When McCorvey gave birth or at least passed the point where an abortion could be safely performed, her case—having resolved itself—might be declared moot and thrown out of court. Linda Coffee prepared and filed the pleading anyway.

Constitutional Issues

Coffee and Weddington decided to attack the constitutionality of the Texas abortion law on the grounds that it violated the Fourteenth and Ninth Amendments to the U.S. Constitution. The due process clause of the Fourteenth Amendment guaranteed equal protection under the law to all citizens and, in particular, required that laws be clearly written. Physicians accused of performing illegal abortions usually cited the Fourteenth Amendment in their defense, claiming that the law was not specific enough with regard to when a woman's life might be considered threatened by pregnancy and childbirth. However, since Coffee and Weddington wanted a decision that rested on a pregnant woman's right to decide for herself whether or not an abortion was necessary, they based their argument first and foremost on the Ninth Amendment, which states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Until 1965, this had usually been interpreted to mean that rights not specifically granted to the federal government were retained by the states. In 1965, however, Griswold v. Connecticut reached the Supreme Court and prompted a different interpretation of the amendment. Estelle Griswold, Planned Parenthood League of Connecticut's executive director, and Dr. Charles Lee Buxton had been arrested for providing birth-control information and contraceptives, actions then illegal under Connecticut law. Found guilty in the Connecticut courts, the two appealed to the Supreme Court, which overturned their convictions and ruled the Connecticut law unconstitutional. Of particular note to Coffee and Weddington was Justice William 0. Douglas' discussion of the Ninth Amendment in his majority opinion. Rights not specifically listed in the Constitution were retained by the people, Douglas emphasized, and one of these rights was the right to privacy. This right to privacy, Coffee and Weddington would argue, should certainly protect the right of a woman to decide whether or not to become a mother.

John Tolles was the assistant district attorney chosen by District Attorney Henry Wade to defend his enforcement of the Texas abortion law. Attorney General Crawford Martin chose Robert Flowers, head of the enforcement division, to defend the Texas law itself, and Flowers passed this task on to his assistant chief, Jay Floyd. The state prepared its case primarily on the basis that a fetus had legal rights, which ought to be protected.

State Court Favors Plaintiff

The Three-Judge Court Act of 1910 had created courts in which a panel of three judges drawn from a single appellate circuit might resolve interstate commerce disputes between the federal and state governments. Another act, passed in 1937, required that such a panel hear any case questioning the constitutionality of a state law. On May 23, 1970, Coffee, Weddington, Tolles and Floyd appeared in the Fifth Circuit Court in Dallas, Texas, before Judges Irving S. Goldberg, William McLaughlin Taylor, and Sarah Tigham Hughes, for whom Coffee had once clerked. The courtroom was jammed with concerned women and reporters. Norma McCorvey, or "Jane Roe," not required to be present, stayed home.

Coffee and Weddington had amended their case to a class-action suit so that McCorvey would represent not just herself but all pregnant women. They had also been joined in their suit by an "intervenor," Dr. James Hallford, who had been arrested for performing abortions. Hallford's attorneys, Fred Bruner and Roy Merrill, planned to use the traditional physician's defense, the Fourteenth Amendment.

Coffee spoke first. She had to establish that McCorvey did, indeed, have "standing to sue" and that the question was a serious, constitutional one on which the three judges should rule. At one point she said: "I think the [abortion] statute is so bad that the court is just really going to have to strike it all down. I don't think it's worth salvaging."

Weddington approached the bench next. This was her courtroom debut, and she knew it was an important case. She said she disagreed with the "justification which the state alleges for the state abortion statute, that is, the protection of the life of the child.…

"[L]ife is an ongoing process. It is almost impossible," Weddington continued, "to define a point at which life begins or perhaps even at which life ends."

Asked by Judge Goldberg whether the legalization of abortion would promote promiscuity, Weddington said that young women "are already promiscuous when the statute is in effect, and in fact, these are some of the girls who need this right and who have the most socially compelling arguments why they should be allowed abortions—the young still in school, those unable to shoulder the responsibility of a child—these girls should not be put through the pregnancy and should be entitled to an abortion."

Before Weddington stepped down to listen to Fred Bruner's Fourteenth Amendment defense of his physician client, Judge Goldberg asked her one more question. Did she, he wanted to know, think the abortion law was weaker in terms of the Ninth or Fourteenth Amendment? Weddington gave her answer immediately: "I believe it is more vulnerable on the Ninth Amendment basis."

After Bruner addressed the judges, Floyd rose to speak for the state. He claimed that "Roe" must certainly have reached the point in her pregnancy where an abortion would be considered unsafe and therefore had no case. Judge Goldberg flatly disagreed.

Tolles followed for the state, and argued strenuously against a woman's having the right to choose an abortion. "I personally think," he said, "and I think the state's position will be and is, that the right of the child to life is superior to that woman's right to privacy."

The judges did not agree. On June 17, 1970, they issued their opinion: "[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."

Supreme Court Hears the Case

The fifth circuit court had issued declarative relief, that is, it had declared the challenged law unconstitutional. It had not, however, issued injunctive relief, which would have been an order for Texas to end its enforcement of that law. For this reason, Weddington and Coffee were entitled to appeal directly to the U.S. Supreme Court, which agreed to hear their case.

Forty-two amici curiae, or "friend of the court" briefs, were filed in support of a woman's right to choose an abortion from organizations as varied as the New York Academy of Medicine, the American College of Gynecologists and Obstetricians, Planned Parenthood and the California chapter of the National Organization for Women. There was also a "woman's brief," signed by such noteworthy women as anthropologist Margaret Mead; Barnard College President Millicent McIntosh; Oregon's past U.S. senator, Maurine Nuebuerger; and feminist theologian Mary Daly. This brief stated, as Marian Faux summarizes it, "that even if a fetus were found to be a legal person, a woman still could not be compelled to nurture it in her body against her will."

On December 13, 1971, Weddington stood before the Supreme Court and contended the state's ability to compel women to bear children left women without any control over their lives. Then she argued against Tolles' claim that a fetus was entitled to protection. "[T]he Constitution, as I read it … attaches protection to the person at the time of birth. Those persons born are citizens."

When Floyd's turn came, he said that "Roe" must surely have given birth by now and thus could not represent pregnant women in a class-action suit. Asked how any pregnant woman could hope to challenge Texas' abortion laws, Floyd replied: "There are situations in which … no remedy is provided. Now, I think she makes her choice prior to the time she becomes pregnant. That is the time of the choice.… Once a child is born, a woman no longer has a choice; and I think pregnancy makes her make that choice as well."

Floyd was then questioned as to why, if abortion was equivalent to murder, no state had ever punished the women involved. He was also questioned about the fact that doctors who performed abortions were not charged with premeditated murder but "ordinary felony murder," a lesser charge. Finally, he was asked to clarify when life began according to the state of Texas. After several attempts to answer the question, Floyd could only say: "I don't—Mr. Justice—there are unanswerable questions in this field."

Since there had been only seven sitting justices when Roe v. Wade was argued, the justices decided such an important case should be re-argued when two newly appointed justices—William Rehnquist and Lewis Powell—joined the Court, restoring the number of justices to nine. Weddington, Coffee, Tolles, and Floyd did so October 10, 1972, repeating their basic arguments.

Landmark Decision

On January 22, 1973, Justice Harry Blackmun read his majority opinion to a room filled with reporters. Reviewing the history of abortion in the United States, he pointed out that "The restrictive criminal abortion laws in effect in a majority of states today … are not of ancient or even of common law origin." Instead, he said they seemed to have been passed to protect women from a procedure that was, in the 19th century, likely to endanger their health. That rationale no longer existed, Justice Blackmun declared, since medical advances had made abortion as safe or safer than childbirth for women.

Justice Blackmun next discussed the high court's acknowledgment of a "right of personal privacy" in various decisions, including the recent Griswold birth control case. Then he delivered the crux of his decision:

This 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 a woman's decision to terminate her pregnancy.

Continuing, Justice Blackmun disagreed with Texas' claim that it had the right to "infringe Roe's rights" to protect "prenatal life." He discussed the use of the word "person" in the U.S. Constitution and found that no such use had "any possible prenatal application," and he specifically found that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn."

However, Justice Blackmun said, neither the woman's right to privacy nor the fetus' lack of a right to the state's protection was absolute:

[T]he State does have an important and legitimate 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. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during the pregnancy, each becomes "compelling."

Finally, Justice Blackmun's decision in Roe v. Wade provided the states with a formula to balance these competing interests. During the first trimester of pregnancy, the abortion decision would be "left to the medical judgment of the pregnant woman's attending physician." During the second trimester, a state might "regulate the abortion procedure in ways that are reasonably related to maternal health." From the end of the second trimester "subsequent to viability," a state might "regulate, and even proscribe, abortion except where it is necessary, in appropriate legal judgment, for the preservation of the life or health of the mother."

Justices William Rehnquist and Byron White dissented. Justice Rehnquist, in his brief, said:

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.

… I agree with the statement… that… "liberty," embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, but only against deprivation without due process of law.

Justice White wrote in his dissent:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are nevertheless unwanted for any one or more of a variety of reasons—convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc.

The common claim before us is that for any one of such reasons, or for no reason at all… any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court for the most part sustains this position:… during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim or caprice of the putative mother more than life or potential life of the fetus.

Every state was affected. New York, which had previously permitted abortion until the 24th week of pregnancy, had to extend that period by several weeks, and the laws of Alaska, Hawaii, and Washington required similar amendment. Fifteen states needed a complete overhaul of their abortion laws, while 31 states—including Texas—had strict anti-abortion laws which became immediately and entirely invalid.

In the spring of 1973, with support from the Catholic church, a Committee of Ten Million began a petition drive demanding a "human rights amendment," to ban abortion in the United States. Several proposed constitutional amendments were introduced and discussed in Congress, including proposals for amendments that prohibited abortions even when required to save a mother's life. These attempts failed, and Roe's opponents tried to organize the legislatures of 34 states to call for a constitutional convention; in the mid-1980s, this strategy was abandoned as well.

The Republican party has since adopted the "pro-life" position as part of its party platform, gaining Catholic and fundamentalist members and losing enough support among women to create a 24 percent "gender gap" in the 1988 elections. The Democratic Party—which supports Roe v. Wade —also benefitted from the women's vote in the 1992 presidential election, in which Bill Clinton, a supporter of a woman's right to an abortion, was elected president.

Subsequent Developments

Many of the Supreme Court's most liberal members have retired since Roe v. Wade was decided in 1973, and their conservative successors have indicated a willingness to re-examine the decision and its implications. On June 30, 1980, in Harris v. McRae, the high court ruled that neither the federal nor local government was obligated to pay for abortions for women on welfare, even if their abortions were medically necessary. More recently, Webster v. Reproductive Health Care, July 3, 1989, granted states new authority to restrict abortions in tax-supported institutions, and Rust v. Sullivan, May 23, 1991, upheld federal regulations that denied government financial aid to family planning clinics that provided information about abortion. Yet, for the time being, the effect of the decision remains intact: A state may not prohibit a woman from aborting a fetus during the first three months of pregnancy and may only regulate abortions during the second three months in the interest of the pregnant woman's health.

—Kathryn Cullen-DuPont

Suggestions for Further Reading

Abraham, Henry J. The Judicial Process, 4th ed. New York: Oxford University Press, 1980.

Cary, Eve and Kathleen Willert Peratis. Woman and the Law. Skokie, Ill.: National Textbook Co. in conjunction with the American Civil Liberties Union, New York, 1977.

Cushman, Robert F. Cases in Constitutional Law, 6th ed. Englewood Cliffs, N.J.: Prentice Hall, 1984.

Davis, Flora. Moving the Mountain: The Women's Movement in America Since 1960. New York: Simon & Schuster, 1991.

Ehrenreich, Barbara and Deirdre English. For Her Own Good: 150 Years of the Experts's Advice to Women. New York: Doubleday, 1979.

Faux, Marian. Roe V. Wade. New York: Macmillan Co., 1988.

Faludi, Susan. Backlash: The Undeclared War Against American Women. New York: Crown Publishers, 1991.

Petchesky, Rosalind Pollack. Abortion and Woman's Choice. Boston: Northeastern University Press, 1984, revised 1990.

Rosten, Leo. Religions of America: Ferment and Faith in an Age of Crisis. New York: Simon & Schuster, 1975.