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Roe v. Wade
[410 U.S. 113]
Burger Court,  Decided 7-2,  1/22/1973
Read the actual decision

Probably the best known Supreme Court decision today, if only because of the contemporary controversy surrounding it, Roe legalized elective abortions under most circumstances. In so doing, it also enhanced the stature of Griswold (1965), by grounding its finding on the woman's right to privacy.

In the middle of the nineteenth century, states had begun to pass restrictive abortion laws, mainly at the behest of physicians who felt that such procedures, risky to say the least and morally questionable, would stain the profession's growing scientific stature. This state of affairs persisted more or less for a century.

In the free love days of the 1960's, paradoxically coincidental with the availability of effective contraceptives, the demand for abortions as additional post-conceptive birth control grew. The reinvigorated women's movement made it a top priority. States began to respond by adopting a variety of laws easing availability of abortions, while keeping the rules restrictive.

While lower courts had occasionally ruled against the restrictions of state abortion laws, the Supreme Court had not been asked to rule on their general constitutionality. In U.S. v. Vuitch (1971), involving a Washington, DC abortion law, the Court ruled that the statute permitted abortions in the case of broadly defined women's health concerns, without addressing the constitutional issue. Meanwhile it had also been developing a broadening view of sexual privacy, beginning with the Griswold decision.

Jane Roe -- a pseudonym was used to screen the facts of the plaintiff's pregnancy from the Court -- challenged two state abortion statutes, a traditionally tough one in Texas, and a more lenient one in Georgia. Traditional abortion laws at the time generally required that a woman be in danger of her life, and that this be certified by her own doctor, as well as a board or committee. The more "modern" Georgia law allowed hospital abortions in the interest of the woman's health, subject to approval by a hospital committee.

Although Jane Roe's pregnancy had passed the point of possible abortion before a decision could be reached in the case, the Court continued to grant her standing, a clear indication that they were anxious to tackle the constitutionality of abortion in general.

Justice William Brennan wrote the original opinion for the Court, suggesting that both challenged statutes be overturned as impossibly vague. His opinion was not persuasive enough to the balance of the majority, and the case had to be reargued, during which time Justice Brennan educated himself extensively on the medical history of abortion.

After reargument, Justice Brennan again wrote for the Court, this time finding the statutes unconstitutional because they violated the woman's basic right to privacy, which he found in the Due Process clause of the Fourteenth Amendment. As such, Justice Brennan was again dealing with the Substantive Due Process doctrine of fundamental rights (see Palko), which was making a comeback in the area of personal rights.

At the same time, Justice Brennan also admitted to a state interest in regulating abortion. To satisfy both sides (if that is possible), he divided his opinion into three parts:

  • During the first trimester of a pregnancy, the woman has an unrestricted right to abortion, in consultation with her doctor. This made invalid even the lenient laws that required committees and approvals.
  • During the second trimester, states could regulate abortion to protect the health of the woman, though not prohibit it.
  • During the third trimester, the state's interest in the potential life of the fetus was finally deemed compelling enough to allow significant restrictions on abortion. Even so, the state must make allowances to save the life of the woman.

Justice Brennan's decision specifically prohibits states from making independent decisions regarding when life begins, and legislating human rights accordingly for the fetus as they would for a newborn.

In his concurring opinion, Justice Warren Burger denied that Roe created a right for abortion on demand, but everyone accepts that, in practice, that is precisely what it did. In their dissents, Justices William Rehnquist and Byron White criticized the trimester arrangement for being every bit as vague as the statutes it replaced, as well as the Court for overturning statutes that were no more restrictive than those in force when the cited Due Process clause was written in 1868.

Even otherwise objective constitutional scholars admit that the decision in Roe was heavily influenced by the desire to attract the large potential constituency available in the women's movement. Three justices appointed by President Nixon (Burger, Blackmun, Powell), each of whom had held strictly constructionist views, voted with the majority in Roe, which was certainly inconsistent with constructionism.

Since the Roe decision, the Court has not seriously backpedaled on its view of abortion, though it has allowed states to regulate the boundaries of the issue and apply some restrictions. In Harris v. McRae (1980), it approved Congress' restriction on the use Medicaid funds for purely elective abortions. In a similar 1977 case, it had supported state prohibitions against funding abortions. But the Court continued to strike down such restrictions as parental consent.

After the retirement of three of the majority in the case, the Rehnquist Court came very close to overturning Roe in Webster v. Reproductive Services (1989). While that case only slightly extended restrictions in Roe, it did produce hope for the future. Appointments to the Court since then, largely liberal, have not encouraged those hopes, but there are still signs that the Court is interested in revisiting Roe with the right case.

Not germane to the constitutional issues as viewed by the Court in Roe, but perhaps relevant to the holistic issue of elective abortion, the case began with a lie. The plaintiff had originally claimed that she had been gang-raped -- rape often drew sympathy for an abortion. She later admitted that the pregnancy was simply the result of a failed relationship. That same "Jane Roe," who died in 2017, became a staunch opponent of the decision made in her name.

If you should find yourself in the office of a physician who also provides elective abortions, look for a plaque hanging backwards on the wall. Turn it around. Very likely it will contain the words of Hippocrates: "First, do no harm ..."

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Write your Congressmen on this issue.

Other decisions pertaining to Abortion:

H.L. v. Matheson    [450 U.S. 398 (1905)]  Burger Court
Planned Parenhood of Central Missouri v. Danforth    [428 U.S. 52 (1905)]  Burger Court

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