Roe v. Wade 1973

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.

"M y 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 [1994], 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, she agreed to be the plaintiff (the party that sues) in Coffee's and Weddington's test case. McCorvey would be known as "Jane Roe" to protect her real identity. Later, Coffee and Weddington both admitted they were too young and inexperienced to fully understand what they were taking on but both knew the case would be an important one.

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.

In Dissent

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."

SARAH WEDDINGTON

S arah Ragle Weddington was born in Abilene, Texas to a Methodist minister father and a mother who taught school. Excelling in her studies, she graduated from high school early and earned a college degree from McMurray College in 1965. Working at various jobs in the Texas legislature in the state capitol of Austin, Weddington quickly became interested in a law career. She, consequently, earned a law degree from the University of Texas in 1967 and began a law practice in Austin. Soon, she along with Linda Coffee, became the chief lawyers challenging Texas' abortion law in Roe v. Wade. In 1972 at age twenty-seven, Sarah presented legal arguments for the case before the Supreme Court justices. She also served in the Texas House of Representatives from 1972 to 1977.

Following success in the landmark abortion case, Sarah became a national figure. President Jimmy Carter appointed her to several key positions including special presidential assistant on various matters including women's rights. In 1977 Weddington was also appointed as a lawyer for the U.S. Department of Agriculture in Washington, D.C. In 1980 Weddington represented the United States at the World Conference of Women in Copenhagen, Denmark. Sarah later returned to Austin and the University of Texas as instructor and public speaker. In 1992 she published a book, A Question of Choice, on abortion rights and other women's issues.

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.