Roe v. Wade
Supreme Court of the United States
Argued December 13, 1971 Reargued October 11, 1972 Decided January 22, 1973
Full case name
Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County
Citations 410 U.S. 113 (http s://supreme.justia.c om/us/410/113/cas e.html) (more) 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159 (htt ps://www.lexis.com/r esearch/slft?cite=31 39373320552E532E 204C455849532020 313539&keyenum= 15451&keytnum=0)
Argument Oral argument (http s://www.oyez.org/ca ses/1970-1979/197 1/1971_70_18/argu ment/)
Reargument Reargument (http s://www.oyez.org/ca ses/1970-1979/197 1/1971_70_18/rearg ument/)
Decision Opinion (https://cdn. loc.gov/service/ll/usr ep/usrep410/usrep4 10113/usrep41011 3.pdf)
Case history Prior Judgment for
plaintiffs, injunction denied, 314 F. Supp. 1217 (https://l
Roe v. Wade
Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a pregnant woman's liberty to choose to have an abortion without excessive government restriction. It struck down many U.S. federal and state abortion laws, and prompted an ongoing national debate in the United States about whether and to what extent abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role of religious and moral views in the political sphere should be. Roe v. Wade reshaped American politics, dividing much of the United States into abortion rights and anti- abortion movements, while activating grassroots movements on both sides.
The decision involved the case of a woman named Norma McCorvey— known in her lawsuit under the pseudonym "Jane Roe"—who in 1969 became pregnant with her third child. McCorvey wanted an abortion, but she lived in Texas, where abortion was illegal except when necessary to save the mother's life. She was referred to lawyers Sarah Weddington and Linda Coffee, who filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. A three-judge panel of the U.S. District Court for the Northern District of Texas heard the case and ruled in her favor. Texas then appealed this ruling directly to the U.S. Supreme Court, which agreed to hear the case.
In January 1973, the Supreme Court issued a 7–2 decision ruling that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a "right to privacy" that protects a pregnant woman's right to choose whether or not to have an abortion. But it also ruled that this right is not absolute, and must be balanced against the government's interests in protecting women's health and protecting prenatal life. The Court resolved this balancing test by tying state regulation of abortion to the three trimesters of pregnancy: during the first trimester, governments could not prohibit abortions at all; during the second trimester, governments could require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother. The Court classified the right to choose to have an abortion as "fundamental", which required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the highest level of judicial review in the United States.
Roe was criticized by some in the legal community, and some have called the decision a form of judicial activism. In 1992, the Supreme Court revisited and modified its legal rulings in Roe in the case of Planned Parenthood v. Casey. In Casey, the Court reaffirmed Roe's holding that a woman's right to choose to have an abortion is constitutionally protected, but abandoned Roe's trimester framework in favor of a standard based on fetal viability, and overruled Roe's requirement that government regulations on abortion be subjected to the strict scrutiny standard.
aw.justia.com/cases/ federal/district-court s/FSupp/314/1217/1 472349/) (N.D. Tex. 1970); probable jurisdiction noted, 402 U.S. 941 (1971); set for reargument, 408 U.S. 919 (1972)
Subsequent Rehearing denied, 410 U.S. 959 (1973)
Holding The Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution provides a fundamental
"right to privacy" that protects a pregnant woman's liberty to choose whether or not to have an abortion. This right is not absolute, and must
be balanced against the government's interests in protecting
women's health and protecting prenatal life. Texas law making it a crime to assist a woman to get an
abortion violated this right.
Chief Justice Warren E. Burger
Associate Justices William O. Douglas · William J.
Brennan Jr. Potter Stewart · Byron White Thurgood Marshall · Harry
Blackmun Lewis F. Powell Jr. · William
Case opinions Majority Blackmun, joined by
Burger, Douglas, Brennan, Stewart, Marshall, Powell
Concurrence Burger Concurrence Douglas Concurrence Stewart Dissent White, joined by
Dissent Rehnquist Laws applied
U.S. Const. Amend. XIV; Tex. Code Crim. Proc. arts. 1191–
Overruled by (partially) Planned Parenthood v.
Background History of abortion laws in the United States History of the case
Issues before the Supreme Court Oral arguments and initial discussions Drafting the opinion
Supreme Court decision Opinion of the Court
Standing Abortion and right to privacy
Legal Public opinion
Role in subsequent decisions and politics Webster v. Reproductive Health Services Planned Parenthood v. Casey Stenberg v. Carhart Gonzales v. Carhart Whole Woman's Health v. Hellerstedt Activities of Norma McCorvey Activities of Sarah Weddington Presidential positions State laws regarding Roe
See also Footnotes References Further reading External links
According to the Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." Providing a historical analysis on abortion, Justice Harry Blackmun noted that abortion was "resorted to without scruple" in Greek and Roman times. Blackmun also addressed the permissive and restrictive abortion attitudes and laws throughout history, noting the disagreements among leaders (of all different professions) in those eras and the formative laws and cases. In the United States, in 1821,
History of abortion laws in the United States
Connecticut passed the first state statute criminalizing abortion. Every state had abortion legislation by 1900. In the United States, abortion was sometimes considered a common law crime, though Justice Blackmun would conclude that the criminalization of abortion did not have "roots in the English common-law tradition." Rather than arresting the women having the abortions, legal officials were more likely to interrogate these women to obtain evidence against the abortion provider in order to close down that provider's business.
In 1971, Shirley Wheeler was charged with manslaughter after Florida hospital staff reported her illegal abortion to the police. She received a sentence of two years' probation and, under her probation, had to move back into her parents' house in North Carolina. The Boston Women's Abortion Coalition held a rally for Wheeler in Boston to raise money and awareness of her charges as well as had staff members from the Women's National Abortion Action Coalition (WONAAC) speak at the rally. Wheeler was possibly the first woman to be held criminally responsible for submitting to an abortion. Her conviction was overturned by the Florida Supreme Court.
With the passage of the California Therapeutic Abortion Act in 1967, abortion became essentially legal on demand in that state. Pregnant women in other states could travel to California to obtain legal abortions—if they could afford to. A flight from Dallas to Los Angeles was nicknamed "the abortion special" because so many of its passengers were traveling for that reason. There were prepackaged trips known as the "non-family plan".
In June 1969, 21-year-old Norma McCorvey discovered she was pregnant with her third child. She returned to Dallas, where friends advised her to falsely claim that she had been raped, incorrectly believing that Texas law allowed abortion in cases of rape and incest when it actually allowed abortion only "for the purpose of saving the life of the mother". She attempted to obtain an illegal abortion, but found that the unauthorized facility had been closed down by the police. Eventually, she was referred to attorneys Linda Coffee and Sarah Weddington. McCorvey would end up giving birth before the case was decided, and the child was put up for adoption.
In 1970, Coffee and Weddington filed suit in the United States District Court for the Northern District of Texas on behalf of McCorvey (under the alias Jane Roe). The defendant in the case was Dallas County District Attorney Henry Wade, who represented the State of Texas. McCorvey was no longer claiming her pregnancy was a result of rape, and later acknowledged that she had lied about having been raped, in hope to circumvent a Texas law that banned abortions except when the woman's life is in danger. "Rape" is not mentioned in the judicial opinions in the case.
On June 17, 1970, a three-judge panel of the District Court, consisting of Northern District of Texas Judges Sarah T. Hughes, William McLaughlin Taylor Jr. and Fifth Circuit Court of Appeals Judge Irving Loeb Goldberg, unanimously declared the Texas law unconstitutional, finding that it violated the right to privacy found in the Ninth Amendment. In addition, the court relied on Justice Arthur Goldberg's 1965 concurrence in Griswold v. Connecticut. The court, however, declined to grant an injunction against enforcement of the law.
Roe v. Wade reached the Supreme Court on appeal in 1970. The justices delayed taking action on Roe and a closely related case, Doe v. Bolton, until they had decided Younger v. Harris (because they felt the appeals raised difficult questions on judicial jurisdiction) and United States v. Vuitch (in which they considered the constitutionality of a District of Columbia statute that criminalized abortion except where the mother's life or health was endangered). In Vuitch, the Court narrowly upheld the statute, though in doing so, it treated abortion as a medical procedure and stated that physicians must be given room to determine what constitutes a danger to (physical or mental) health. The day after they announced their decision in Vuitch, they voted to hear both Roe and Doe.
History of the case
Issues before the Supreme Court
Oral arguments and initial discussions
Arguments were scheduled by the full Court for December 13, 1971. Before the Court could hear the oral arguments, Justices Hugo Black and John Marshall Harlan II retired. Chief Justice Warren Burger asked Justice Potter Stewart and Justice Blackmun to determine whether Roe and Doe, among others, should be heard as scheduled. According to Blackmun, Stewart felt that the cases were a straightforward application of Younger v. Harris, and they recommended that the Court move forward as scheduled.
In his opening argument in defense of the abortion restrictions, attorney Jay Floyd made what was later described as the "worst joke in legal history." Appearing against two female lawyers, Floyd began, "Mr. Chief Justice and may it please the Court. It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word." His remark was met with cold silence; one observer thought that Chief Justice Burger "was going to come right off the bench at him. He glared him down."
After a first round of arguments, all seven justices tentatively agreed that the Texas law should be struck down, but on varying grounds. Burger assigned the role of writing the Court's opinion in Roe (as well as Doe) to Blackmun, who began drafting a preliminary opinion that emphasized what he saw as the Texas law's vagueness. (At this point, Black and Harlan had been replaced by Justices William Rehnquist and Lewis F. Powell Jr., but they arrived too late to hear the first round of arguments.) But Blackmun felt that his opinion did not adequately reflect his liberal colleagues' views. In May 1972, he proposed that the case be reargued. Justice William O. Douglas threatened to write a dissent from the reargument order (he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold the statute), but was coaxed out of the action by his colleagues, and his dissent was merely mentioned in the reargument order without further statement or opinion. The case was reargued on October 11, 1972. Weddington continued to represent Roe, and Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for Texas.
Blackmun continued to work on his opinions in both cases over the summer recess, even though there was no guarantee that he would be assigned to write them again. Over the recess, he spent a week researching the history of abortion at the Mayo Clinic in Minnesota, where he had worked in the 1950s. After the Court heard the second round of arguments, Powell said he would agree with Blackmun's conclusion but pushed for Roe to be the lead of the two abortion cases being considered. Powell also suggested that the Court strike down the Texas law on privacy grounds. Justice Byron White was unwilling to sign on to Blackmun's opinion, and Rehnquist had already decided to dissent.
Prior to the decision, the justices discussed the trimester framework at great length. Justice Powell had suggested that the point where the state could intervene be placed at viability, which Justice Thurgood Marshall supported as well. In an internal memo to the other justices before the majority decision was published, Justice Blackmun wrote: "You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." Roe supporters are quick to point out, however, that the memo only reflects Blackmun's uncertainty about the timing of the trimester framework, not the framework or the holding itself. Contrary to Blackmun, Justice Douglas preferred the first-trimester line. Justice Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to state legislatures, though he joined Blackmun's decision. Justice William J. Brennan Jr. proposed abandoning frameworks based on the age of the fetus and instead allowing states to regulate the procedure based on its safety for the mother.
On January 22, 1973, the Supreme Court issued a 7–2 decision in favor of Norma McCorvey ("Jane Roe") that held that women in the United States have a fundamental right to choose whether or not to have abortions without excessive government restriction, and struck down Texas's abortion ban as unconstitutional. The decision was issued together with a companion case, Doe v. Bolton, that involved a similar challenge to Georgia's abortion laws.
Drafting the opinion
Supreme Court decision
Opinion of the Court
Justice Harry Blackmun, the author of the majority opinion in Roe v. Wade
Seven justices formed the majority and joined an opinion written by Justice Harry Blackmun. The opinion recited the facts of the case, then dealt with issues of procedure and justiciability before proceeding to the main constitutional issues of the case.
The Court's opinion first addressed the legal issues of standing and mootness. Under the traditional interpretation of these rules, Norma McCorvey's ("Jane Roe") appeal was moot because she had already given birth to her child and thus would not be affected by the ruling; she also lacked standing to assert the rights of other pregnant women. As she did not present an "actual case or controversy" (a grievance and a demand for relief), any opinion issued by the Supreme Court would constitute an advisory opinion.
The Court concluded that the case came within an established exception to the rule: one that allowed consideration of an issue that was "capable of repetition, yet evading review". This phrase had been coined in 1911 by Justice Joseph McKenna in Southern Pacific Terminal Co. v. ICC. Blackmun's opinion quoted McKenna and noted that pregnancy would normally conclude more quickly than an appellate process: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied."
After dealing with standing, the Court then proceeded to the main issue of the case: the constitutionality of abortion laws. It began with a historical survey of the legal status of abortion across Roman law and the Anglo-American common law. It also reviewed the developments of medical procedures and technology to perform abortions, which had only become reliably safe in the early 20th century.
After its historical survey, the Court introduced the concept of a constitutional "right to privacy" that was intimated in earlier cases involving parental control over childrearing (Meyer v. Nebraska and Pierce v. Society of Sisters) and reproductive autonomy with the use of contraception (Griswold v. Connecticut). Then, "with virtually no further explanation of the privacy value", the Court ruled that regardless of exactly which of its provisions were involved, the U.S. Constitution's guarantees of liberty covered a right to privacy that generally protected a pregnant woman's decision whether or not to abort a pregnancy.
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 ... 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.
— Roe, 410 U.S. at 153.
The Court reasoned that outlawing abortions would infringe a pregnant woman's right to privacy for several reasons: having unwanted children "may force upon the woman a distressful life and future"; it may bring imminent psychological harm; caring for the child may tax the mother's physical and mental health; and because there may be "distress, for all concerned, associated with the unwanted child".
But the Court rejected the notion that this right to privacy was absolute. It held instead that the abortion right must be balanced against other government interests. The Court found two government interests that were sufficiently "compelling" to permit states to impose some limitations on the right to choose to have an abortion: first, protecting the mother's health, and second, protecting the life of the fetus. 
Abortion and right to privacy
A State may properly assert important interests in safeguarding health, 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. ... 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.
— Roe, 410 U.S. at 154.
The state of Texas had argued that total bans on abortion were justifiable because "life" begins at the moment of conception, and therefore its governmental interest in protecting prenatal life should apply to all pregnancies regardless of their stage. But the Court found that there was no indication that the Constitution's uses of the word "person" were meant to include fetuses, and so it rejected Texas's argument that a fetus should be considered a "person" with a legal and constitutional right to life. It noted that there was still great disagreement over when an unborn fetus becomes a living being.
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, in this point in the development of man's knowledge, is not in a position to speculate as to the answer.
— Roe, 410 U.S. at 159.
The Court settled on the three trimesters of pregnancy as the framework to resolve the problem. During the first trimester, when it was believed that the procedure was safer than childbirth, the Court ruled that the government could place no restriction on a woman's ability to choose to abort a pregnancy other than minimal medical safeguards such as requiring a licensed physician to perform the procedure. From the second trimester on, the Court ruled that evidence of increasing risks to the mother's health gave the state a compelling interest, and that it could enact medical regulations on the procedure so long as they were reasonable and "narrowly tailored" to protecting mothers' health. Since the beginning of the third trimester was normally considered to be the point at which a fetus became viable under the level of medical science available in the early 1970s, the Court ruled that during the third trimester the state had a compelling interest in protecting prenatal life, and could legally prohibit all abortions except where necessary to protect the mother's life or health.
The Court concluded that Texas's abortion statutes were unconstitutional, and struck them down:
A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving 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.
— Roe, 410 U.S. at 164.
Several other members of the Supreme Court filed concurring opinions in the case. Justice Potter Stewart wrote a concurring opinion in which he stated that even though the Constitution makes no mention of the right to choose to have an abortion without interference, he thought the Court's decision was a permissible interpretation of the doctrine of substantive due process, which says that the Due Process Clause's protection of liberty extends beyond simple procedures and protects certain fundamental rights. Justice William O. Douglas wrote a concurring opinion in which he described how he believed that while the Court was correct to find that the right to choose to have an abortion was a fundamental right, it would be better to …