Roe v. Wade (1973)

Summary

This month, we spotlight the landmark case Roe v. Wade (1973). In this case, the Court held that the right to privacy included the abortion decision, and that states could not ban the procedure in the first trimester. One of the Court’s most controversial decisions, the ruling overturned laws banning abortion in at least thirty-one states.

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According to common law tradition carried over in the United States from England, abortion before “quickening,” (or when the fetus’s movements could be felt) was not a crime. In 1821, Connecticut adopted a portion of a British law and passed the first US law banning abortion after quickening. At the time of the adoption of the Fourteenth Amendment in 1868, twenty states (out of thirty-seven) restricted abortion. By the 1950s, almost every state banned all abortions except when necessary to save the woman’s life.

A shift began in the 1960s. Beginning with Colorado in 1967, thirteen states opened access to abortion. Several states restricted the procedure, while thirty-one states allowed it only to save the life of the mother. A Texas woman, using the name Jane Roe, challenged her state law and her case eventually went to the Supreme Court.

The Constitution does not list a right to privacy. The Court has held, however, that Bill of Rights protections of free speech, assembly, and religious exercise (First Amendment), along with freedom from forced quartering of troops (Third), unreasonable searches and seizures (Fourth), and forced self-incrimination (Fifth) create “zones of privacy.” Further, the Ninth Amendment’s protection of unenumerated rights could be said to protect privacy. These “zones,” the Court held, are places into which the government cannot unreasonably intrude. Roe claimed that the law robbed her of her right to privacy as protected by the combination of Bill of Rights amendments, and of her liberty as protected by the Due Process Clause of the Fourteenth Amendment.

The Court agreed with Roe and held that “the right to privacy includes the abortion decision.” The Court emphasized that abortion rights were not absolute. “The pregnant woman cannot be isolated in her privacy…[I]t 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.” States could not ban abortion during the first trimester, but as pregnancy progressed, the Court held, the state’s interest in protecting life could begin to outweigh the woman’s liberty. Therefore states could restrict the procedure later in pregnancy.

The decision in Roe v. Wade continues to be one of the most controversial the Court has ever issued. Demonstrations are frequently held on the anniversary of the decision—some in protest and some in support. In subsequent cases, the Court has upheld laws requiring waiting periods and other similar restrictions on abortion, even within the first trimester.

Questions

  1. Why did Roe argue that the Texas law banning abortions was unconstitutional?
  2. On what Bill of Rights protections does the Supreme Court base the right to privacy?
  3. How did the Court rule?
  4. In his dissent, Justice White wrote, “The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. … I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States.” Do you agree? Why or why not?