Roe et al. v. Wade: 1973
On January 22, 1973, Justice Harry Blackmun read his majority opinion to a room filled with reporters. Reviewing the history of abortion in the United States, he pointed out that "The restrictive criminal abortion laws in effect in a majority of states today … are not of ancient or even of common law origin." Instead, he said they seemed to have been passed to protect women from a procedure that was, in the 19th century, likely to endanger their health. That rationale no longer existed, Justice Blackmun declared, since medical advances had made abortion as safe or safer than childbirth for women.
Justice Blackmun next discussed the high court's acknowledgment of a "right of personal privacy" in various decisions, including the recent Griswold birth control case. Then he delivered the crux of his decision:
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions on state action … or… in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision to terminate her pregnancy.
Continuing, Justice Blackmun disagreed with Texas' claim that it had the right to "infringe Roe's rights" to protect "prenatal life." He discussed the use of the word "person" in the U.S. Constitution and found that no such use had "any possible prenatal application," and he specifically found that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn."
However, Justice Blackmun said, neither the woman's right to privacy nor the fetus' lack of a right to the state's protection was absolute:
[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman … and … it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during the pregnancy, each becomes "compelling."
Finally, Justice Blackmun's decision in Roe v. Wade provided the states with a formula to balance these competing interests. During the first trimester of pregnancy, the abortion decision would be "left to the medical judgment of the pregnant woman's attending physician." During the second trimester, a state might "regulate the abortion procedure in ways that are reasonably related to maternal health." From the end of the second trimester "subsequent to viability," a state might "regulate, and even proscribe, abortion except where it is necessary, in appropriate legal judgment, for the preservation of the life or health of the mother."
Justices William Rehnquist and Byron White dissented. Justice Rehnquist, in his brief, said:
I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas by the statute here challenged bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word.
… I agree with the statement… that… "liberty," embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, but only against deprivation without due process of law.
Justice White wrote in his dissent:
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are nevertheless unwanted for any one or more of a variety of reasons—convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc.
The common claim before us is that for any one of such reasons, or for no reason at all… any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.
The Court for the most part sustains this position:… during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim or caprice of the putative mother more than life or potential life of the fetus.
Every state was affected. New York, which had previously permitted abortion until the 24th week of pregnancy, had to extend that period by several weeks, and the laws of Alaska, Hawaii, and Washington required similar amendment. Fifteen states needed a complete overhaul of their abortion laws, while 31 states—including Texas—had strict anti-abortion laws which became immediately and entirely invalid.
In the spring of 1973, with support from the Catholic church, a Committee of Ten Million began a petition drive demanding a "human rights amendment," to ban abortion in the United States. Several proposed constitutional amendments were introduced and discussed in Congress, including proposals for amendments that prohibited abortions even when required to save a mother's life. These attempts failed, and Roe's opponents tried to organize the legislatures of 34 states to call for a constitutional convention; in the mid-1980s, this strategy was abandoned as well.
The Republican party has since adopted the "pro-life" position as part of its party platform, gaining Catholic and fundamentalist members and losing enough support among women to create a 24 percent "gender gap" in the 1988 elections. The Democratic Party—which supports Roe v. Wade—also benefitted from the women's vote in the 1992 presidential election, in which Bill Clinton, a supporter of a woman's right to an abortion, was elected president.
Many of the Supreme Court's most liberal members have retired since Roe v. Wade was decided in 1973, and their conservative successors have indicated a willingness to re-examine the decision and its implications. On June 30, 1980, in Harris v. McRae, the high court ruled that neither the federal nor local government was obligated to pay for abortions for women on welfare, even if their abortions were medically necessary. More recently, Webster v. Reproductive Health Care, July 3, 1989, granted states new authority to restrict abortions in tax-supported institutions, and Rust v. Sullivan, May 23, 1991, upheld federal regulations that denied government financial aid to family planning clinics that provided information about abortion. Yet, for the time being, the effect of the decision remains intact: A state may not prohibit a woman from aborting a fetus during the first three months of pregnancy and may only regulate abortions during the second three months in the interest of the pregnant woman's health.
Suggestions for Further Reading
Abraham, Henry J. The Judicial Process, 4th ed. New York: Oxford University Press, 1980.
Cary, Eve and Kathleen Willert Peratis. Woman and the Law. Skokie, Ill.: National Textbook Co. in conjunction with the American Civil Liberties Union, New York, 1977.
Cushman, Robert F. Cases in Constitutional Law, 6th ed. Englewood Cliffs, N.J.: Prentice Hall, 1984.
Davis, Flora. Moving the Mountain: The Women's Movement in America Since 1960. New York: Simon & Schuster, 1991.
Ehrenreich, Barbara and Deirdre English. For Her Own Good: 150 Years of the Experts's Advice to Women. New York: Doubleday, 1979.
Faux, Marian. Roe V. Wade. New York: Macmillan Co., 1988.
Faludi, Susan. Backlash: The Undeclared War Against American Women. New York: Crown Publishers, 1991.
Petchesky, Rosalind Pollack. Abortion and Woman's Choice. Boston: Northeastern University Press, 1984, revised 1990.
Rosten, Leo. Religions of America: Ferment and Faith in an Age of Crisis. New York: Simon & Schuster, 1975.
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