Roe v. Wade

Legal decision

By: U.S. Supreme Court

Date: January 22, 1973

Source: Roe v. Wade 410 U.S. 113 (1973). Available at: 〈http://supreme.justia.com/us/410/113/case.html〉 (accessed April 12, 2006).

About the Author: At the time of the Roe v. Wade decision, the U.S. Supreme Court was composed of Justices Warren Burger (Chief), William Douglas, William Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis F. Powell, and William Rehnquist. Justice Harry Blackmun, a Republican, served on the court from 1970–1994. Appointed to the court by President Richard Nixon, Blackmun's most famous written opinion for the court is Roe v. Wade. Blackmun continued to support abortion rights until his death in 1999.

INTRODUCTION

Abortion was legal in the United States from the country's founding until the 1820s, when some states began to pass legislation limiting the procedure. English common law, which provided the basis for many laws in the United States, had treated abortion before "quickening" or the feeling of fetal movement, as a misdemeanor, but post-quickening abortion was considered a felony or a capital offense. An 1803 English law, The Miscarriage of Women Act, made pre-quickening abortion a felony and post-quickening abortion a capital crime. American states began to follow England in codifying abortion law by the 1820s.

In 1861, England passed the Offenses Against the Person Act, declaring all abortions felonies, and, in 1869, Pope Pius IX, leader of the Roman Catholic Church, declared all abortion, regardless of circumstance or timing, to be grounds for excommunication. In addition, the Pope stated that any person involved in the act—including medical personnel and husbands—had also separated themselves from the Catholic Church by virtue of their choice.

By the early 1900s, abortion was illegal throughout most of the United States. Illegal abortions were commonly performed by midwives, some doctors, or any person who chose to perform the procedure; the practice was unregulated. Because abortion was criminalized, there were few incentives to report corrupt, "back alley" abortion providers or to name them should a complication arise. Many such abortion providers charged large sums of money, performed the procedure with unsterilized equipment, and provided no follow-up care to check for infection, retained tissue, or other complications.

In the 1920s and 1930s, economic crises in the United States, coupled with the difficulty of accessing affordable birth control, led many women to seek abortions. Although abortion was illegal, many states had a clause permitting a physician to perform the procedure if the mother's life was in jeopardy. The American Medical Association had lobbied for criminalization of abortion in the late 1800s and early 1900s with a dual purpose of driving non-medical abortion providers out of business and making the procedure safer by forcing it to be performed by physicians only.

In 1935, Iceland became the first western country to permit abortions under certain specific medical circumstances; other countries, such as Britain, Canada, and Australia, followed throughout the 1930s, 1940s, and 1950s. In the United States, California and Colorado both made abortion legal in 1967, and New York decriminalized abortion in 1970.

Anti-choice advocates argued that life begins at conception, and ending that life is equivalent to murder. The Roman Catholic Church held this position as well. By 1970, when the Roe v. Wade case was filed, thirty-one states permitted abortion when the mother's life was in danger, and women seeking abortions often traveled across state lines or into Canada to seek elective abortions.

Norma McCorvey, the "Jane Roe" in Roe v. Wade, filed a lawsuit in Texas on the grounds that Texas law criminalizing abortion violated her rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Abortion rights proponents had been searching for a case to take through the courts that would stand through repeated court battles; attorneys Sarah Weddington and Linda Coffee believed Norma McCorvey's case was the right choice. McCorvey claimed that her pregnancy was the result of a rape, a condition that some states would have accepted as justification for the abortion. Weddington did not make that fact public during the court case.

The case made its way to the U.S. Supreme Court in December 1971, but after initial arguments the court decided to have it reargued, to give new justices William Rehnquist and Lewis Powell the opportunity to hear the case. In October 1972, the U.S. Supreme Court heard the case again, and in January handed down its ruling, declaring the Texas state law banning abortion unconstitutional.

PRIMARY SOURCE

VIII

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, 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. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue 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 [410 U.S. 113, 154] 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. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).

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.

Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

In the recent abortion cases, cited above, 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.

IX

The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented "several compelling justifications for state presence in the area of abortions," the statutes outstripped these justifications and swept "far beyond any areas of compelling state interest." 314 F. Supp., at 1222-1223. Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State's determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.

A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment….

B. 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. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th ed. 1965). 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. [410 U.S. 113, 160].

It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. The Aristotelian theory of "mediate animation," that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this "ensoulment" theory from those in the Church who would recognize the existence of life from [410 U.S. 113, 161] the moment of conception. The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a "process" over time, rather than an event, and by new medical techniques such as menstrual extraction, the "morning-after" pill, implantation of embryos, artificial insemination, and even artificial wombs.

In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few [410 U.S. 113, 162] courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.

X

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 [410 U.S. 113, 163] 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, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

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. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [410 U.S. 113, 164] during that period, except when it is necessary to preserve the life or health of the mother.

Measured against these standards, Art. 1196 of the Texas Penal Code, in 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.

SIGNIFICANCE

The court interpreted the right to obtain an abortion as an issue of personal privacy, grounded in the Fourteenth Amendment. In addition, Blackmun's written decision rejected the Texas law's claim that life begins at conception; the court ruled that viability, or the fetus's ability to live outside the womb, was the better benchmark for state involvement in regulating abortion.

Roe v. Wade set clear guidelines on the state's ability to set limits on abortion based on the viability of the fetus. (In 1973, a fetus was considered to be viable at approximately twenty-eight weeks of gestation.) Until the age of viability had passed, women could legally obtain abortions on demand. Once the fetus was viable, the state could place restrictions on abortion.

Within seven years, European countries such as France, Italy, West Germany, and the Netherlands legalized abortion. In the United States, individual states responded to the Roe v. Wade decision by passing laws that required parental notification, informed consent, "cooling off" periods of twenty-four or more hours between the first consultation with an abortion provider and the actual procedure, and specific counseling information requirements.

The 1992 case Planned Parenthood v. Casey revisited Roe and provided a new court that included appointees from conservative presidents Ronald Reagan and George H. W. Bush with the opportunity to overturn Roe. Many legal scholars had argued that the U.S. Supreme Court had created a privacy right in the Fourteenth Amendment, arguing strenuously with the court's use of that justification for Roe. In Planned Parenthood v. Casey the court struck down portions of Pennsylvania's abortion restrictions, such as spousal notification laws, but upheld parental consent and "cooling off" periods. Anti-choice and pro-choice advocates alike had expected the court to overturn Roe; the court, however, did not do so.

Technological advances, such as RU-486, an abortion pill protocol, and neonatal care for premature infants have blurred the lines set by Roe in 1973. Viability comes at earlier stages more than thirty years after the Roe v. Wade decision was published; ten to forty percent of all babies born at twenty-three weeks survive, and survival rates increase to fifty to eighty percent for babies born at twenty-five weeks.

In February 2006, South Dakota passed a state law banning all abortions, with the only exception being to save the life of the mother. In April 2006, legislators in Ohio crafted a law making abortion illegal and criminalizing those who cross state lines for the purpose of obtaining an abortion. While Roe v. Wade struck down such laws in 1973, more than thirty years later the debate continues.

FURTHER RESOURCES

Books

Hull, N. E. H., and Peter Charles Hoffer. Roe V. Wade: The Abortion Rights Controversy in American History. Lawrence: University Press of Kansas, 2001.

Solinger, Rickie. Abortion Wars: A Half Century of Struggle, 1950–2000. Berkeley: University of California Press, 1998.

Weddington, Sarah. A Question of Choice. New York: Penguin, 1993.

ROE V. WADE

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 7–2 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, Fifth, Ninth, and Fourteenth Amendments. She also sought to have an injunction, or court order, issued against the statute's enforcement so that she might go forward with the abortion. A physician, James Hubert Hallford,

who was being prosecuted under the statute for two abortions he had performed, also filed suit against the law, as did a childless couple, the Does (Mary Doe and john doe). A three-judge district court combined the cases of McCorvey and Hallford and dismissed the suit brought by the Does on the grounds that neither of them had violated the law and Mary Doe was not pregnant.

The district court agreed with McCorvey that the law was unconstitutionally vague and violated her right to privacy under the Ninth Amendment—which allows for the existence of rights, like that of privacy, not explicitly named in the Constitution's Bill of Rights—and the fourteenth amendment. It refused, however to grant the injunction allowing her to go ahead with the abortion. McCorvey appealed the denial of the injunction to the U.S. Supreme Court. The Supreme Court agreed to hear the case along with another, Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), relating to a 1968 Georgia abortion statute. The Court dismissed Hallford's case because of the pending prosecutions against him. Hallford made no allegation of any substantial and immediate threat to any federal protected right that could not be asserted in his defense against the state prosecution. Nor did he allege harassment or bad-faith prosecution by the state. Hallford's case fell clearly within the ambit of the rule announced in prior Supreme Court cases

Norma McCorvey: The Real Jane Roe

In a 1984 television interview, Norma McCorvey revealed that she is Jane Roe, the plaintiff in the most famous abortion case in U.S. history, Roe v. Wade. In 1994, she published an autobiography, I Am Roe: My Life, Roe v. Wade, and Freedom of Choice, that puts a human face on the story of Roe. In her book, McCorvey candidly recounts the difficulties of her life, including growing up with an abusive mother, spending time in reform school as an adolescent, struggling with addictions to drugs and alcohol, and coming out as a lesbian.

McCorvey was born Norma Leah Nelson on September 22, 1947, in the bayou country of Lettesworth, Louisiana. Half Cajun and part Native American, she eventually moved with her poor, working-class family to Dallas, where she has since lived most of her life. After an unsuccessful marriage to an abusive husband, she divorced and gave up a daughter to relatives. Wrestling with drug and alcohol addictions amid the counterculture swirl of the 1960s, she later gave up two more children to adoption, including the child she carried when she brought Roeto court.

In September 1969, while working as a carnival freak show barker, McCorvey learned that she was pregnant for the third time and returned to Dallas. Out of work, severely depressed, with no money, she decided to seek an abortion. After being told that abortion was legal in cases of rape or incest, friends advised her to lie and say that she had been raped. However, since no police report of the fictitious rape existed, the ruse did not work. She then went to an illegal abortion clinic but found that it had been closed by the police; all that was left was an abandoned building where "dirty instruments were scattered around the room, and there was dried blood on the floor."

Eventually, McCorvey was referred to sarah weddington and Linda Coffee, young attorneys who were looking for a plaintiff to challenge the Texas abortion law. Weddington herself had been forced to go to Mexico in order to obtain an abortion during the 1960s. McCorvey agreed to participate in a lawsuit against Henry Wade, the Dallas district attorney. Although she still hoped to finish the suit in time to have an abortion, McCorvey told her attorneys, "Let's do it for other women." McCorvey chose to remain anonymous for several reasons: she feared publicity would hurt her five-year-old daughter, her parents were against abortion, and she had lied about being raped. She did not participate in court hearings in order to maintain her anonymity.

On March 3, 1970, when Roewas filed in court, McCorvey was six months pregnant. In June, at twenty-three years of age, she gave birth, and her child went up for adoption. On January 22, 1973, over two years too late to alter the course of her pregnancy, McCorvey learned that she had won her case: the Supreme Court had ruled that the Texas abortion law was unconstitutional.

In 1989, McCorvey decided to ally herself publicly with the abortion rights movement. Shortly before she participated in a large pro-choice rally in Washington, D.C., someone fired gunshots at her house and car, in one of many incidents of harassment she has had to endure since making her identity known. Frightened but undaunted, she joined the April 9 rally and made a speech on Capitol Hill before hundreds of thousands of people. McCorvey worked for a time at a family planning clinic and traveled around the United States giving speeches promoting the reproductive rights of women.

In August 1995, McCorvey announced that she had switched sides on the abortion debate. "I'm pro-life," McCorvey stated. "I think I have always been pro-life, I just didn't know it." McCorvey's reversal was attributed to her new friendship with the Reverend Philip ("Flip") Benham, national director of the militant antiabortion group Operation Rescue. The group had moved its national headquarters into an office next to the clinic where McCorvey worked. After being baptized by Benham, McCorvey declared that she would work on behalf of Operation Rescue.

further readings

McCorvey, Norma, with Andy Meisler. 1994. I Am Roe: My Life, Roe v. Wade, and Freedom of Choice. New York: Harper-Collins.

that a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the state is prosecuting him or her (Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 [1971]; Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 [1971]; Boyle v. Landry, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 [1971]).

Justices hugo black and john m. harlan submitted their resignations in September 1971, shortly before the beginning of the term in which the Supreme Court was scheduled to hear the arguments on the abortion cases. The case was first heard in December 1971 by seven justices, though President richard nixon had previously announced the nominations of two new justices, lewis f. powell jr. and william h. rehnquist.

Powell was confirmed as an associate justice by the Senate on December 7, 1971, and Rehnquist was confirmed on December 15. Both were sworn in as associate justices on January 7, 1971, about a month after the Court had originally heard the arguments in Roe. Chief Justice warren e. burger chose Justice Blackmun—who had served for many years as legal counsel to the Mayo Clinic, in Rochester, Minnesota—to write the Court's original opinion, which Blackmun completed in May 1972. Blackmun's opinion would have struck down the Texas law on the grounds of vagueness, and the result of the opinion would have been that the majority of abortion statutes in the United States would have been unconstitutionally vague as well, though the Court would not have considered whether the right to an abortion was a fundamental right. However, Blackmun also recommended that the Court reconsider the case with all nine justices.

Instead of issuing Blackmun's original opinion, the Court decided to rehear the case during the following term. The Court reheard the case beginning October 11, 1972. After the rehearing, the Court, with Blackmun again writing for the majority, found the Texas abortion law to be unconstitutional. It declared that such laws "violate the due process clause, which protects against state action the right to privacy, including [a] woman's qualified right to terminate her pregnancy." Rehnquist, a politically conservative justice, wrote a dissenting opinion.

In its opinion, the Court ruled that the right to terminate a pregnancy is part of a woman's right to privacy. At the same time, however, it declared that "[t]his right is not unqualified and must be considered against important state interests in regulation." The state, the Court argued, "has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life," interests that change in importance as the pregnancy progresses. In the first trimester, the Court said, the state has no interest in regulating the right of a woman to obtain an abortion. In making this decision, the Court pointed to evidence showing that the health of the mother is not endangered by an abortion during the first 12 weeks of pregnancy. According to that evidence, women are less likely to die from complications of an abortion conducted in the first trimester than from carrying their pregnancy to term. The Court also found that the state may require that all abortions be performed only by licensed physicians under medically safe conditions.

The Court found that the state's interest in regulating abortion and protecting a pregnant woman's health emerges in the second trimester. "[I]n promoting its interest in the health of the mother," the Court declared, "the state may regulate the abortion procedure in ways that are reasonably related to maternal health." It may, for example, impose requirements regarding the qualifications and licensing of those performing abortions; it may also regulate where abortions can be performed. Beyond these rules, the woman, in consultation with her physician, is free to decide whether to end her pregnancy.

In the third trimester, the interest of the state in "the potentiality of human life"—that is, the life of the fetus before birth—makes it possible to regulate and even prohibit abortions except when necessary to save the life or health of the mother. By this period, the fetus is determined to be viable—that is, capable of living outside the womb—and therefore entitled to protection by the state.

The Court did not accept arguments that the fetus be regarded as a person within the meaning of the Due Process Clause of the Fourteenth Amendment, which declares that no state shall "deprive any person of life, liberty, or property, without due process of law" (§ 1). "There is no medical or scientific proof that life is present from conception," wrote the Court.

[W]e need not resolve the difficult question of when life begins, when those trained in the respective fields 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.

As author of the Court's opinion, Justice Blackmun made it clear that abortion was an extraordinarily difficult issue:

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 predilection.

Although the opinion went into the "medical and medical-legal" history of the issue and quoted medical authorities frequently, the Court chose to decide the case on constitutional rather than medical or philosophical grounds. In this case, the crucial constitutional consideration was the right to privacy, which some would argue is as old as the Constitution. The most important precedent for the Roe decision on this issue was the 1965 Supreme Court case griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510, which clearly set forth a constitutional right to privacy—in this instance, a married couple's right to privacy when deciding whether or not to use contraceptives. Roe was in fact part of a gradual expansion of the right to privacy during the 1960s and 1970s, to include not only a right to freedom from physical searches and seizures, for example, but also a right to make individual decisions free of coercion, whether physical or psychological, especially in matters regarding the family and reproduction.

In his dissent in Roe, Justice Rehnquist differed with the majority on a number of points. For one thing, McCorvey had given birth in 1970 and had given her child up for adoption. He argued that because McCorvey was no longer in the first term of her pregnancy, indeed was no longer pregnant, when her case came before the Supreme Court, the case had become hypothetical rather than actual and therefore outside the jurisdiction of the Court. Rehnquist also argued that the regulation of abortion should be left to the states and that the right of privacy had nothing to do with the case. "I have difficulty in concluding, as the Court does, that the right of 'privacy' is involved in this case," he wrote. "The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment." Moreover, in Rehnquist's view, the Texas abortion law met the test of having "a rational relation to a valid state objective." Rehnquist's fellow dissenter in Roe, Justice byron r. white, called the decisions in Doe and Roe "an example of raw judicial power" and "an improvident and extravagant exercise of the power of judicial review" (Doe, 410 U.S. 179 at 221, 93 S. Ct. 762).

The Roe decision has largely been perceived as a victory for the abortion reform and women's rights movements and a defeat for antiabortion forces, but in many ways it was a compromise between the two sides. While antiabortion forces were unhappy with the establishment of a right to abortion for women in the first trimester of pregnancy, pro-abortion groups were displeased with the limits on abortion allowed in the last two trimesters of pregnancy. The Court also compromised in its decision as to when life begins and who is to be defined as a person with full rights under the Constitution. It did not agree with the pro-abortion movement, which declared that life does not begin until birth, or with the antiabortion movement, which maintained that life begins at conception. Instead, it chose to define the rights of the fetus as emerging when it reaches the stage of viability, when it can survive independently outside the womb. In making this decision, some have argued, the Court made personhood subject to change, particularly as science has moved the time of viability further back.

Feminists and women's rights advocates saw Roe as a vindication of women's reproductive rights and a step toward greater equality between the sexes. Such equality, they argued, can happen only when women have the ability to control reproduction. Others, opposed to the decision in Roe, believed that the Supreme Court had overstepped its bounds by effectively making new social policy, a task they felt was better left to elected members of state legislatures. Still others felt that the Court had violated the sanctity of human life by permitting abortion. In any case, Roe has been a far-reaching decision, affecting many spheres of U.S. life, including medicine, religion, and the family.

In the decades following Roe, antiabortion groups mounted continual campaigns to repeal the decision. Despite these challenges, the Supreme Court repeatedly supported the essential elements of that decision, particularly as regards the right to privacy.

further readings

Baker, Hunter. 2001. "Storming the Gates of a Massive Cultural Investment: Reconsidering Roe in Light of Its Flawed Foundation and Undesirable Consequences." Regent University Law Review 14.

Butler, J. Douglas, and David F. Walbert, eds. 1992. Abortion, Medicine, and the Law. 4th ed. New York: Facts on File.

Faux, Marian. 2000. Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal. New York: Cooper Square Press.

Gonzalez, Jose L. 2001. "The Legitimization of Fetal Tissue Transplantation Research Under Roe v. Wade." Creighton Law Review 34.

Lucas, Ray. 2003. "Forgotten Supreme Court Abortion Cases: Drs. Hawker and Herwitz in the Dock and Defrocked." Pepperdine Law Review. 641.

McCorvey, Norma. 1994. I Am Roe: My Life, Roe v. Wade, and Freedom of Choice. New York: HarperCollins.

Payment, Simone. 2003. Roe v. Wade: The Right to Choose. New York: Rosen.

Rubin, Eva R. 1987. Abortion, Politics and the Courts: Roe v. Wade and Its Aftermath. New York: Greenwood.

Simon, James F. 1995. The Center Holds: The Power Struggle Inside the Rehnquist Court. New York: Simon & Schuster.

cross-references

Fetal Rights; Fetal Tissue Research; Penumbra; "Roe v. Wade" (Appendix, Milestone); Wattleton, Alice Faye.

Roe V. Wade

BIBLIOGRAPHY

Few U.S. Supreme Court rulings have been as contentious as the Court’s 1973 decision in Roe v. Wade. This landmark decision not only invalidated a number of state abortion laws, it also served to further divide public opinion with respect to “discretionary” abortion decisions (Franklin and Kosaki 1989, p. 759).

A number of states reformed their abortion statutes to broaden access to legal abortions in the late 1960s. Some of these laws, for example, permitted abortion when a woman’s health was in danger as opposed to only her life. Some reforms, moreover, provided for legal abortions if a woman had been a victim of rape or incest, as well as in situations in which a fetal defect was present (Tribe 1991, p. 42). Of course, prior to Roe, a number of states, including Texas, prohibited abortions except when a woman’s life was in danger.

In addition to a perceived need for further abortion law reform, developments in the Supreme Court’s privacy doctrine with respect to the use and distribution of contraceptives provided constitutional arguments that could potentially be applied to the expansion of abortion rights (Nossiff 2001, p. 41). In Griswold v. Connecticut (1965), the Supreme Court held that a Connecticut statute prohibiting the use of contraceptives violated a married couple’s constitutional right to privacy. In Eisenstadt v. Baird (1972), the Court recognized that single persons also enjoy a right to privacy with respect to reproductive decisions when it struck down a Massachusetts law banning the provision of contraceptives to unmarried persons in order to prevent pregnancy.

The legal question as to whether a woman’s privacy right could extend to her decision to terminate a pregnancy was presented to the Supreme Court in Roe v. Wade. Jane Roe, who would later reveal her identity as Norma McCorvey, was pregnant and wanted to obtain an abortion in Texas, her state of residence. Texas law, however, prohibited abortions except when necessary to preserve the mother’s life. McCorvey’s pregnancy did not threaten her life, nor did she have the finances to travel to a state in which abortion was legal. A Dallas attorney referred McCorvey to Sarah Weddington and Linda Coffee, two attorneys who were preparing a legal challenge to the Texas abortion laws. The case, which eventually became a class-action lawsuit, also involved a married couple dubbed John and Mary Doe. They argued that the law interfered with their marital relationship since Mary’s physician had cautioned her about becoming pregnant but directed her to refrain from using birth control pills because of a medical condition. Under Texas law, however, abortion would be a foreclosed option for the couple in the event of an unintended pregnancy. James Hallford, a physician who was charged with violating the Texas abortion laws, also participated in the lawsuit. The plaintiffs sought a declaration that the Texas laws were unconstitutional, as well as an injunction to prevent their enforcement (Weddington 1992, pp. 50–62).

Jay Floyd, representing the Texas Office of the Attorney General, raised important challenges concerning the plaintiffs’ standing to sue and the timing of the lawsuit. With respect to the merits, he argued that there was no constitutional right to an abortion and that the state had a “compelling interest in protecting the fetus” (Weddington 1992, p. 66). The representative for the district attorney’s office argued further that abortion was an appropriate area for state regulation and also suggested that the privacy interests of women seeking abortions must give way to the protection of the unborn (Weddington 1992, pp. 65–66).

Although the three-judge trial court agreed with Floyd’s argument that John and Mary Doe did not have standing to sue, the court held that Roe and Hallford could pursue their claims. On the merits, the court found that the laws violated the constitutional right of individuals to determine whether they wanted children; however, it refused to issue the plaintiffs’ request for an injunction. Dallas County district attorney Henry Wade’s assertion that he would continue to enforce the contested law assisted Weddington’s efforts in obtaining a Supreme Court review of the decision (Weddington 1992, pp. 67–69).

The Supreme Court first heard oral arguments in Roe in 1971. However, the justices agreed that the case should be reargued to allow newly appointed justices William Rehnquist (1924–2005) and Lewis Powell (1907–1998) to take part in the decision. Accordingly, the Court issued its landmark decision in 1973. Writing for a seven-member majority, Justice Harry Blackmun (1908–1999) argued that a constitutional “right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” (410 U.S. 113, 153). However, the majority also recognized that the state has legitimate interests with respect to “health,” “medical standards,” and “potential life” that might justify regulating abortion at certain points (410 U.S. 113, 154).

Specifically, Blackmun articulated a trimester framework to evaluate when these state interests could justify regulation of a woman’s decision to have an abortion. During the first trimester of a woman’s pregnancy, when the risk of mortality from an abortion is low relative to the risk of childbirth, the Court held that “the abortion decision … must be left to the medical judgment” of a woman’s doctor (410 U.S. 113, 164). However, by the second trimester, the state could regulate abortions in order to protect maternal health (410 U.S. 113, 163). Finally, the state’s interest in protecting “potential life” could justify regulation when the fetus reaches the stage of “viability,” defined as the point at which it has “the capability of meaningful life outside the mother’s womb.” At this stage, Blackmun held that the state could prohibit abortion so long as exceptions were made “to preserve the life or health of the mother” (410 U.S. 113, 154).

While many individuals and groups defended the Supreme Court’s decision in Roe, others criticized the ruling in the hope of seeing it limited or overruled. At the state level, for example, attempts to restrict access to abortion have been made through laws requiring parental or spousal notification or consent, informed consent, waiting periods, and tests to determine fetal viability, as well as through laws prohibiting public financing or assistance for abortion procedures (Nossiff 2001, p. 148; Tribe 1991, p. 144). McCorvey herself later backed away from her affiliation with the Roe decision and the pro-choice movement. In 1995 McCorvey was baptized by the national director of Operation Rescue, a well-known organization opposing abortion rights in the United States (New York Times 1995, p. A12), and in 2003 she unsuccessfully petitioned a federal court to reconsider the result announced in Roe (New York Sun 2003, p. 6).

The battle over abortion rights and the Roe decision has also colored the Supreme Court judicial selection process. Nominees to the Court after Roe have been scrutinized concerning their positions on privacy rights generally and their opinion of Roe specifically. Although John Roberts was tapped to replace Chief Justice Rehnquist in 2005, particular concern was raised that Justice Sandra Day O’Connor’s replacement in 2006, Samuel Alito, might provide the Court with the votes needed to overrule this controversial decision. However, as legal analyst Jeffrey Toobin (2005, p. 81) noted, a number of Republican-appointed justices have joined the Court since Roe, and, although the Court has revisited the topic of abortion rights in a number of cases, it has yet to overrule the decision.

SEE ALSO Abortion; Supreme Court, U.S.;Women’s Movement

BIBLIOGRAPHY

Eisenstadt v. Baird, 405 U.S. 438 (1972).

Franklin, Charles H., and Liane C. Kosaki. 1989. Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion. American Political Science Review 83 (3): 751–771.

Griswold v. Connecticut, 381 U.S. 479 (1965).

New York Sun. 2003. Roe’s Regrets. June 23: 6.

New York Times. 1995. “Jane Roe” Joins Anti-Abortion Group. August 11: A12.

Nossiff, Rosemary. 2001. Before Roe: Abortion Policy in the States. Philadelphia: Temple University Press.

O’Brien, David M. 1993. A Struggle for Power. In Storm Center: The Supreme Court in American Politics, 3rd ed., 23–64. New York: Norton.

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

Toobin, Jeffrey. 2005. Still Standing: The Resilience of Roe v. Wade. New Yorker. November 28: 70–81.

Tribe, Laurence H. 1991. Abortion: The Clash of Absolutes. New York: Norton.

Weddington, Sarah. 1992. A Question of Choice. New York: Putnam’s.

Erin B. Kaheny

Roe v. Wade

Legal decision

By: U.S. Supreme Court

Date: January 22, 1973

Source: Roe v. Wade 410 U.S. 113 (1973). Available at: 〈http://supreme.justia.com/us/410/113/case.html〉 (accessed April 12, 2006).

About the Author: At the time of the Roe v. Wade decision, the U.S. Supreme Court was composed of Justices Warren Burger (Chief), William Douglas, William Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis F. Powell, and William Rehnquist.

INTRODUCTION

Roe v. Wade 410 U.S. 113 (1973) was a landmark case in the debate over a woman's right to terminate an unwanted pregnancy. Brought forward by attorney Sarah Weddington in 1970, on behalf of Norma McCorvey, a young woman from Texas whose identity was protected by the pseudonym "Jane Roe," the case was argued before the U.S. Supreme Court in 1971, again in 1972, and finally decided on January 22, 1973. District Attorney Henry Wade of Dallas County, Texas, was the defendant in the case. In a seven-to-two decision in favor of the plaintiff, the U.S. Supreme Court agreed that most existing state laws regulating abortion violated a woman's constitutional right to privacy. As a result of this ruling, Texas's abortion laws and all legislation outlawing or restricting abortion in the United States was overturned.

The following excerpt from the text of the court's decision discusses the point at which it is appropriate for the state to regulate and intervene in the decision to abort a human fetus.

PRIMARY SOURCE

X

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…. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like….

XI

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, and 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.

SIGNIFICANCE

At the time of Roe v. Wade, Texas law stated that the abortion of a human fetus was a crime, except when medically advised for the purpose of saving the life of the mother. Norma McCorvey, who claimed to be pregnant as the result of a rape, challenged the law that prevented her from obtaining an abortion by arguing that it was vague and violated the rights guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution. The case was eventually expanded to include two other plaintiffs: James Hubert Hallford, a doctor who had been charged with violations of Texas abortion laws and John and Mary Doe, aliases for a married couple whose doctor had advised them against pregnancy.

The district court that first heard the case in Dallas County, Texas ruled in favor of "Jane Roe," but refused to grant an injunction allowing McCorvey to have an abortion in violation of Texas law. Both Roe and Wade appealed the district court decision and the case was heard by the Supreme Court in December 1971. Justice Harry Blackmun wrote a decision striking down the Texas abortion law, but Chief Justice Warren Burger proposed that the case be held over for rehearing, allowing two newly appointed justices, William Rehnquist and Lewis F. Powell, Jr., to participate in the decision.

The Supreme Court rendered its final decision on December 22, 1973, voting seven to two to strike down the Texas law prohibiting abortion. In that decision, the court defined the limits of state power and individual freedom with respect to each of the trimesters of pregnancy. As stated above, abortion during the first trimester of pregnancy must be left to the sole discretion of the woman and her medical counsel, effectively ending state power to intervene in first trimester abortions. Following the end of the first trimester, the state may regulate abortion in ways that reasonably relate to the "preservation and protection of maternal health." During the final stage of pregnancy in which a fetus is a viable life that can survive outside of the womb (third trimester), the state reserves the right, if it chooses, to regulate or even prohibit abortion, unless it is necessary to protect the health and life of the mother.

In its decision, the court addressed three historical justifications for the criminalization of abortion. First, it considered the notion that the availability of abortion would make women more likely to be sexually promiscuous. The court criticized the lack of evidence to support this notion and noted that this idea failed to differentiate between married and unmarried mothers. According to the court, this justification for denying access to abortion appears to be nothing more than an ill-informed attempt to regulate women's sexuality. Second, the court addressed the idea that the abortion procedure was a risky one prior to the development of antibiotics and remains risky in the later stages of pregnancy. Third, the court considered the interest that the state has in protecting life. The court held that the latter two points are valid concerns and justify the possibility of state regulation and limitation of abortion for health reasons in the second and third trimesters, given current knowledge about the progression of pregnancy.

Roe v. Wade was also an important case for its discussion of standing and mootness, although these issues received very little attention in the public debate. Generally in legal proceedings, the resolution of the issue at stake renders the case moot—no longer having bearing or reason to proceed in the court. The U.S. Supreme Court does not render decisions of law in hypothetical cases to guide policy. In this case, the legal challenge to Texas abortion law took longer to resolve than the term of Roe's pregnancy. Given that the issue—her desire for an abortion, contrary to Texas law—had been resolved by the birth of her baby, the court could have deemed the case moot and dismissed the proceedings, since the ruling would not be applicable to Roe herself. However, the U.S. Supreme Court found that the appeal should be allowed to proceed for two reasons. First, because Roe could potentially become pregnant again, necessitating a ruling on the matter, and second, because any legal discussion having bearing on pregnancy was likely to outlast the duration of the specific pregnancy in question. The court reasoned that to rule the case moot at the con-clusion of the pregnancy would effectively stymie any potential litigation on such issues and would be contrary to the constitutional rights of women.

The Roe v. Wade decision was highly controversial in the United States and was opposed by vocal pro-life and religious organizations. In response to Roe v. Wade, and within its scope, many states enacted new abortion legislation. In some cases, these laws limit access to abortions in varying degrees, including requiring parental consent for the procedure to be performed on a minor, and prohibiting most late-term abortions that use intact dilation and extraction—socalled partial-birth abortions. In November 2003, President George W. Bush signed a federal law banning the practice of partial-birth abortion in the United States. However, the Partial Birth Abortion Ban Act did not take immediate effect, as it awaited the outcome of appeals and challenges filed by prochoice advocates. Then, on January 31, 2006, the law was declared unconstitutional by two separate appeals courts—one in New York and the other in California. The legislation was found to be unconstitutional because, contrary to Roe v. Wade decision, the law did not allow exceptions in the interest of the mother's health. In February 2006, the legislation was reintroduced before the U.S. Supreme Court and a decision on the case is pending. Roe v. Wade continues to impact judicial decision and abortion policy in the United States to the present day.

FURTHER RESOURCES

Books

Critchlow, Donald T. Intended Consequences: Birth Control, Abortion and the Federal Government in Modern America. New York: Oxford University Press, 2001.

Garrow, David J. Liberty and Sexuality: The Making of Roe v. Wade. Berkeley: University of California Press, 1998.

Hull, N. E. H. Roe v. Wade: The Abortion Right Controversy in American History. Lawrence, Kans.: University Press of Kansas, 2000.

Periodicals

Devins, Neal. "Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade." Michigan Law Review 93 (1995): 1433-1459.

Farr, Kathryn Ann. "Shaping Policy Through Litigation: Abortion Law in the United States." Crime and Delinquency 39 (1993): 167-183.

Garrow, David J. "Abortion Before and After Roe v. Wade: An Historical Perspective." Albany Law Review 62 (1999): 833.

Web sites

Cornell Law School. Supreme Court Collection. "410 U.S. 113, Roe v. Wade: Appeal from the United States District Court for the Northern District of Texas." 〈http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZS.html〉 (accessed February 22, 2006).

ROE V. WADE

ROE V. WADE, 410 U.S. 113 (1973), the landmark case establishing a woman's constitutional right to an abortion, was initiated by attorneys Sarah Weddington and Linda Coffee with Norma McCorvey as one of the plaintiffs. A single pregnant woman known as "Jane Roe" to protect her privacy, McCorvey had been denied an abortion under a Texas law. The 7 to 3 decision, which also covered Doe v. Bolton, a Georgia case, upheld federal appeals court's decisions striking down provisions of both the Texas and Georgia laws. Effectively rendered unconstitutional were all statutes that either prohibited abortion (Texas) or encumbered legal abortions in such excessive regulation as to make then virtually unattainable (Georgia).

The decision was the culmination of ongoing efforts of several groups seeking decriminalization and reflected changing public opinion about abortion. Support for legal reform had grown stronger when the news broke that the drug thalidomide, extensively prescribed to alleviate morning sickness in the early stages of pregnancy, produced severe physical defects in children. In a much publicized incident, Sherry Finkbine, an Arizona woman who had taken thalidomide, requested an abortion with the support of her doctors. Because of the threat of prosecution by local authorities, the Finkbines, seeking a more favorable legal climate, fled to Sweden where abortion was legal. Her plight dramatized to both the medical profession and ordinary citizens the need for legal change, as did figures on illegal abortions, which ranged from 200,000 to 1,200,000 annually. Fatalities for the women undergoing the procedure, always estimates, were high. In 1955, the annual American loss of women's lives was put at from three thousand to eight thousand.

The justices, no longer able to avoid the issue, agonized over the decision—none more than Justice Harry Blackmun, who wrote the majority opinion resting the right to an abortion on the right to privacy. The right to privacy in sexual and reproductive matters, while not specified in the Bill of Rights, had recently evolved. Building on Griswold v. Connecticut (1965), a case involving the use of birth control by a married couple, abortion rights lawyers had persuaded the lower courts to extend the right of privacy implied in the Fourth Amendment's guarantee against unreasonable searches to other reproductive decisions, notably whether to carry a fetus to term. That right, however, was never intended by the Court to be absolute. After much internal debate concerning the cutoff point at which the state's interest in protecting potential life should take precedence over a woman's right to terminate a pregnancy, the majority reached a compromise that Blackmun tied to the trimester system. During the first three months of pregnancy, a woman was to be free to make the decision in consultation with her doctor. In the second trimester, the states could regulate abortion in order to protect maternal health, but could not prohibit the procedure. While rejecting the notion that the fetus from the moment of conception was a constitutionally protected "person" under the Fourteenth Amendment, the Court used the stage in fetal development when survival was possible outside the woman's body as the point at which state interest in protecting potential life took precedence. Since viability occurred at approximately the end of six months, Roe stipulated that states could prohibit abortions in the third trimester.

The decision, which imposed the Court's regulatory formula upon the states, evoked intense resentment and high praise. Irate legislators charged that their law-making function had been usurped. Abortion rights supporters, dismayed that only three states had legalized abortion by 1970, rejoiced. Catholic clergy attacked the decision as sanctioning the taking of a human life, while mainline Protestant clergy appreciated the option it offered the anguished women they counseled. Legal critics found the fragile textual backing for privacy to be weak constitutional grounding for abortion rights and the trimester formula to be problematic. Others argued that the Court had moved too far too fast. Its mistake, they argued, was abandoning an incremental approach to the abortion issue that would have produced smaller changes over time, allowing the public time to adjust. Pro-choice attorneys, while elated by the scope of the decision, also had legal concerns. Fearful that relying on privacy instead of equal protection made the decision constitutionally vulnerable, they further criticized Roe as too medicalized, privileging physicians' autonomy over women's. Concerned that state regulation in later trimesters would not take into account the needs of pregnant woman, feminists warned that the Court's compromise could lead to government coercion and involuntary motherhood.

What was indisputable was the immediate formation of a grassroots movement by opponents eager to erode the abortion rights conferred in Roe. Although the Court initially rejected state restrictions, in 1980 it upheld the "Hyde Amendment" by which Congress refused to fund even medically necessary abortions of indigent women (Harris v. Mc Rae, 488 U.S. 297), a practice that many states followed. And in Webster v. Reproductive Health Services (1989), the Court, by a 5 to 3 vote, upheld the right of Missouri legislators to deny the use of public employees and facilities to perform or assist abortions. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court finally reaffirmed Roe in a 5 to 3 vote. But though the formal right to an abortion had survived, other tactics of the antiabortion movement had reduced it as a practical option, especially for poor and rural women.

BIBLIOGRAPHY

Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. Updated and with a new preface and epilogue. Berkeley and Los Angeles: University of California Press, 1998.

Petchesky, Rosalind P. Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom. Rev. ed. Boston: Northeastern University Press, 1990.

Siegel, Reva. "Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection," 44 (Jan. 1992): 261–381.

Jane SherronDe Hart

See alsoAbortion ; Equal Rights Amendment .