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''Roe v. Wade'', 410 U.S. 113 (1973),. was a
landmark decision Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly ...
of the U.S. Supreme Court in which the Court ruled that the
Constitution of the United States The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the nati ...
conferred the right to have an
abortion Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pre ...
. The decision struck down many federal and state abortion laws, and caused an ongoing
abortion debate The abortion debate is a longstanding, ongoing controversy that touches on the moral, legal, medical, and religious aspects of induced abortion. In English-speaking countries, the debate most visibly polarizes around adherents of the self-describ ...
in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of
moral A moral (from Latin ''morālis'') is a message that is conveyed or a lesson to be learned from a story or event. The moral may be left to the hearer, reader, or viewer to determine for themselves, or may be explicitly encapsulated in a maxim. ...
and religious views in the political sphere should be. The decision also shaped debate concerning which methods the Supreme Court should use in constitutional
adjudication Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision which determines rights and obligations between the p ...
. The case was brought by Norma McCorveyknown by the legal pseudonym "
Jane Roe Norma Leah Nelson McCorvey (September 22, 1947 – February 18, 2017), also known by the pseudonym "Jane Roe", was the plaintiff in the landmark American legal case ''Roe v. Wade'' in which the U.S. Supreme Court ruled in 1973 that individual s ...
"who, in 1969, became pregnant with her third child. McCorvey wanted an abortion, but she lived in
Texas Texas (, ; Spanish: ''Texas'', ''Tejas'') is a state in the South Central region of the United States. At 268,596 square miles (695,662 km2), and with more than 29.1 million residents in 2020, it is the second-largest U.S. state by ...
where abortion was illegal, except when necessary to save the mother's life. Her attorneys, Sarah Weddington and
Linda Coffee Linda Nellene Coffee (born December 25, 1942) : profile of Coffee is an American lawyer living in Dallas, Texas. Coffee is best known, along with Sarah Weddington, for arguing the precedent-setting United States Supreme Court case ''Roe v. Wade'' ...
, filed a lawsuit on her behalf in U.S. federal court against her local
district attorney In the United States, a district attorney (DA), county attorney, state's attorney, prosecuting attorney, commonwealth's attorney, or state attorney is the chief prosecutor and/or chief law enforcement officer representing a U.S. state in a ...
,
Henry Wade Henry Menasco Wade (November 11, 1914 – March 1, 2001) was an American lawyer who served as district attorney of Dallas County from 1951 to 1987. He participated in two notable U.S. court cases of the 20th century: the prosecution of Jack Ru ...
, alleging that Texas's abortion laws were unconstitutional. A special three-judge court of the
U.S. District Court for the Northern District of Texas The United States District Court for the Northern District of Texas (in case citations, N.D. Tex.) is a United States district court. Its first judge, Andrew Phelps McCormick, was appointed to the court on April 10, 1879. The court convenes in ...
heard the case and ruled in her favor. The parties appealed this ruling to the Supreme Court. On January 22, 1973, the Supreme Court issued a 7–2 decision holding that the
Due Process Clause In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except a ...
of the
Fourteenth Amendment to the United States Constitution The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Often considered as one of the most consequential amendments, it addresses citizenship rights and ...
provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion. The Court also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life. The Court resolved these competing interests by announcing a
pregnancy trimester Pregnancy is the time during which one or more offspring develops ( gestates) inside a woman's uterus (womb). A multiple pregnancy involves more than one offspring, such as with twins. Pregnancy usually occurs by sexual intercourse, but ...
timetable to govern all abortion regulations in the United States. The Court also classified the right to abortion as "fundamental", which required courts to evaluate challenged abortion laws under the "
strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
" standard, the most stringent level of judicial review in the United States. The Supreme Court's decision in ''Roe'' was among the most controversial in U.S. history. In addition to the dissent, ''Roe'' was criticized by some in the legal community, including some in support of abortion rights who thought that ''Roe'' reached the correct result but went about it the wrong way, and some called the decision a form of
judicial activism Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
. Others argued that ''Roe'' did not go far enough, as it was placed within the framework of
civil rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life ...
rather than the broader
human rights Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision; polls into the 21st century showed that a plurality and a majority, especially into the late 2010s to early 2020s, opposed overruling ''Roe''. Despite criticism of the decision, the Supreme Court reaffirmed ''Roe'' "central holding" in its 1992 decision, ''
Planned Parenthood v. Casey ''Planned Parenthood v. Casey'', 505 U.S. 833 (1992), was a landmark case of the Supreme Court of the United States in which the Court upheld the right to have an abortion as established by the "essential holding" of ''Roe v. Wade'' (1973) and is ...
.'' ''Casey'' overruled ''Roe'' trimester framework and abandoned its "strict scrutiny" standard in favor of an " undue burden" test. In June 2022, the Supreme Court overruled ''Roe'' in ''
Dobbs v. Jackson Women's Health Organization ''Dobbs v. Jackson Women's Health Organization'', , is a landmark decision of the U.S. Supreme Court in which the court held that the Constitution of the United States does not confer a right to abortion. The court's decision overruled both ''Ro ...
'' on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition", nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law until ''Roe''. This view was disputed by some legal historians and criticized by the dissenting opinion, which argued that many other rights—
contraception Birth control, also known as contraception, anticonception, and fertility control, is the use of methods or devices to prevent unwanted pregnancy. Birth control has been used since ancient times, but effective and safe methods of birth contr ...
,
interracial marriage Interracial marriage is a marriage involving spouses who belong to different races or racialized ethnicities. In the past, such marriages were outlawed in the United States, Nazi Germany and apartheid-era South Africa as miscegenation. In 1 ...
, and
same-sex marriage Same-sex marriage, also known as gay marriage, is the marriage of two people of the same sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being Mexico, constituting ...
—did not exist when the Due Process Clause was ratified in 1868, and thus, by the ''Dobbs'' majority's logic, were not constitutionally protected. The decision was supported and opposed by the
anti-abortion Anti-abortion movements, also self-styled as pro-life or abolitionist movements, are involved in the abortion debate advocating against the practice of abortion and its legality. Many anti-abortion movements began as countermovements in respo ...
and abortion-rights movements in the United States, respectively, and was generally condemned by international observers and foreign leaders.


Background


History of abortion laws in the United States

According to historian James C. Mohr, there was an earlier acceptance of abortion, and opposition to abortion, including anti-abortion laws, only came into being in the 19th century. It was not always a crime and was generally not illegal until
quickening In pregnancy terms, quickening is the moment in pregnancy when the pregnant woman starts to feel the fetus' movement in the uterus. Medical facts The first natural sensation of quickening may feel like a light tapping or fluttering. These sensat ...
, which occurred between the fourth and sixth month of pregnancy. In 1821,
Connecticut Connecticut () is the southernmost state in the New England region of the Northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, New York (state), New York to the west, and Long Island Sound to the ...
passed the first state statute legislating
abortion in the United States Abortion in the United States and its territories is a divisive issue in American politics and culture wars, with widely different abortion laws in U.S. states. Since 1976, the Republican Party has generally sought to restrict abortion acc ...
; it forbade the use of poisons in abortion. After the 1840s, there was an upsurge in abortions. In the 19th century, the medical profession was generally opposed to abortion, which Mohr argues arose due to competition between men with medical degrees and women without one, such as Madame Drunette. The practice of abortion was one of the first medical specialities, and was practiced by unlicensed people; well-off people had abortions and paid well. The press played a key role in rallying support for anti-abortion laws. According to James S. Witherspoon, a former briefing attorney for the Court of Appeals for the Third Supreme Judicial District of Texas, abortion was not legal before quickening in 27 out of all 37 states in 1868;"Reexamining ''Roe'': Nineteenth-Century Abortion Statutes and the Fourteenth Amendment"
by James S. Witherspoon, ''St. Mary's Law Journal'', Volume 29, 1985, Part III. Nineteenth-Century Criminal Abortion Statutes, Section B. The Prohibition of Pre-Quickening Attempts and the Elimination of the Quickening Distinction, pages 33–34, (pages 5–6 of the pdf)
by the end of 1883, 30 of the 37 states, six of the ten U.S. territories, and the
Kingdom of Hawai'i The Hawaiian Kingdom, or Kingdom of Hawaiʻi ( Hawaiian: ''Ko Hawaiʻi Pae ʻĀina''), was a sovereign state located in the Hawaiian Islands. The country was formed in 1795, when the warrior chief Kamehameha the Great, of the independent islan ...
, where abortion had once been common,Population Policy in Hawaii
by Robert C. Schmitt, ''Hawaiian Journal of History'', Volume 8, 1974, page 91 (page 2 of the pdf), also se
The Penal Code of the Hawaiian Kingdom, Compiled from the Penal Code of 1850
Chapter XII. Causing Abortion—Concealing the Death of an Infant, Honolulu, Oahu: Government Press, 1869, page 19 (page 63 of the pdf)
had codified laws that restricted abortion before quickening. More than 10 states allowed pre-quickening abortions, before the quickening distinction was eliminated, and every state had anti-abortion laws by 1900.Cole, George; Frankowski, Stanislaw (1987)
''Abortion and Protection of the Human Fetus: Legal Problems in a Cross-Cultural Perspective''
Leiden, the Netherlands: Martinus Nijhoff Publishers. p. 20. Retrieved April 8, 2008 – via Google Books. "By 1900 every state in the Union had an anti-abortion prohibition."
According to Leslie J. Reagan, a professor of history and law at the
University of Illinois The University of Illinois Urbana-Champaign (U of I, Illinois, University of Illinois, or UIUC) is a public land-grant research university in Illinois in the twin cities of Champaign and Urbana. It is the flagship institution of the Uni ...
, pre-quickening abortions were legal under
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
, like in early modern England, and widely accepted in practice in the early United States. In the United States, before specific statutes were made against it, abortion was sometimes considered a
common law offense Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. State laws. They are offences under the common law, developed entirely by the law courts, having no specific ...
, such as by
William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family ...
and James Wilson. In all states throughout the 19th and early 20th century, pre-quickening abortions were always considered to be actions without a lawful purpose. This meant that if the mother died, the individual performing the abortion was guilty of murder. This aspect of common law regarded pre-quickening abortions as a type of inchoate offense.
Negative liberty Negative liberty is freedom from interference by other people. Negative liberty is primarily concerned with freedom from external restraint and contrasts with positive liberty (the possession of the power and resources to fulfill one's own pote ...
rights from common law do not apply in situations caused by consensual or voluntary behavior, which allowed for abortions of
fetus A fetus or foetus (; plural fetuses, feti, foetuses, or foeti) is the unborn offspring that develops from an animal embryo. Following embryonic development the fetal stage of development takes place. In human prenatal development, fetal dev ...
es conceived in a consensual manner to be common law offenses. The majority opinion for ''Roe v. Wade'' authored in Justice
Harry Blackmun Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 to 1994. Appointed by Republican President Richard Nixon, Black ...
's name would later state that the criminalization of abortion did not have "roots in the English common-law tradition", and was thought to return to the more permissive state of pre-1820s abortion laws. One purpose for banning abortion was to preserve the life of the fetus, another was to protect the life of the mother, another was to create deterrence against future abortions, and another was to avoid injuring the mother's ability to have children. Judges did not always distinguish between which purpose was more important. Rather than arresting the women having the abortions, legal officials were more likely to
interrogate Interrogation (also called questioning) is interviewing as commonly employed by law enforcement officers, military personnel, intelligence agencies, organized crime syndicates, and terrorist organizations with the goal of eliciting useful infor ...
them to obtain evidence against the individual doing the abortions. This law enforcement strategy was a response to juries which refused to convict women prosecuted for abortion in the 19th century. In 1973, Justice Blackmun's opinion stated that "the restrictive criminal
abortion law Abortion laws vary widely among countries and territories, and have changed over time. Such laws range from abortion being freely available on request, to regulation or restrictions of various kinds, to outright prohibition in all circumstances ...
s in effect in a majority of States today are of relatively recent vintage". By 1971, elective abortion on demand was effectively available in Alaska, California, Hawaii, New York, Washington, and Washington, D.C. Some women traveled to jurisdictions where it was legal, although not all could afford to. In 1971, Shirley Wheeler was charged with
manslaughter Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th ce ...
after Florida hospital staff reported her illegal abortion to the police. Wheeler was one of a few women who were prosecuted by their states for abortion. She received a sentence of two years
probation Probation in criminal law is a period of supervision over an offender, ordered by the court often in lieu of incarceration. In some jurisdictions, the term ''probation'' applies only to community sentences (alternatives to incarceration), such ...
, and as an option under her probation, chose to move back into her parents' house in North Carolina. The
Playboy Foundation The Playboy Foundation is a corporate-giving organization that provides grants to non-profit groups involved in fighting censorship and researching human sexuality. It gives grants and in-kind contributions, such as advertising space in the ''Play ...
donated $3,500 to her defense fund and ''
Playboy ''Playboy'' is an American men's Lifestyle magazine, lifestyle and entertainment magazine, formerly in print and currently online. It was founded in Chicago in 1953, by Hugh Hefner and his associates, and funded in part by a $1,000 loan from H ...
'' denounced her prosecution.Bachelors and Bunnies: The Sexual Politics of Playboy
by Carrie Pitzulo, University of Chicago Press, page 2011, page 157
The Boston Women's Abortion Coalition raised money and held a rally where attendees listened to speakers from the Women's National Abortion Action Coalition (WONAAC). Her conviction was overturned by the
Supreme Court of Florida The Supreme Court of Florida is the highest court in the U.S. state of Florida. It consists of seven members: the chief justice and six justices. Six members are chosen from six districts around the state to foster geographic diversity, and one ...
.


History of the case

Sarah Weddington recruited
Linda Coffee Linda Nellene Coffee (born December 25, 1942) : profile of Coffee is an American lawyer living in Dallas, Texas. Coffee is best known, along with Sarah Weddington, for arguing the precedent-setting United States Supreme Court case ''Roe v. Wade'' ...
to help her with abortion litigation. Their first plaintiffs were a married couple; they joined after the woman heard Coffee give a speech.Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal
by Marian Faux, New York City: Cooper Square Press, 2001, page 39
''Roe v. Wade'': Abortion and a Woman's Right to Privacy
by Melissa Higgins, Chapter 5, Constructing and Filing ''Roe v. Wade'', North Mankato, MN: Abdo Publishing, 2012, page 52, an
A Question of Choice
by Sarah Weddington, New York: Penguin Books, 1993, page 50
The intended suit would state abortions were medically necessary for the woman. The woman had a neurochemical disorder and it was considered medically necessary that she not give birth or raise children, yet they did not want to abstain from sex, and contraception might fail. The attorneys were concerned about standing since the woman was not pregnant. Weddington later wrote that they "needed to find a pregnant Texas woman who wanted an abortion and would be willing to be a
plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of t ...
." They also wanted to increase the likelihood that the panel selection would help them win in court. They wanted to present their case to a three-judge panel which included a judge they thought would be sympathetic, which was a possibility only by filing a case in Dallas. If either of the two cases they filed in Dallas were assigned favorably, they intended to ask for the other one to be consolidated with it.''Roe v. Wade'': Abortion and a Woman's Right to Privacy
by Melissa Higgins, Chapter 5, Constructing and Filing ''Roe v. Wade'', North Mankato, MN: Abdo Publishing, 2012 page 54 an
A Question of Choice
by Sarah Weddington, New York: Penguin Books, 1993, page 53
At first, Weddington was unsuccessful in finding a suitable pregnant woman. In June 1969, 21-year-old Norma McCorvey discovered she was pregnant with her third child. Ordinarily, lawyers are not allowed to directly solicit clients without any prior relationship, but McCorvey's situation qualified for an exception in the no solicitation rule which allows lawyers to solicit new clients for
public interest The public interest is "the welfare or well-being of the general public" and society. Overview Economist Lok Sang Ho in his ''Public Policy and the Public Interest'' argues that the public interest must be assessed impartially and, therefor ...
cases. According to a sworn statement made in 2003, McCorvey asked if she had what was needed to be part of Weddington and Coffee's lawsuit. She recounted being told, "Yes. You're white. You're young, pregnant, and you want an abortion." Both McCorvey's whiteness and her lower social class were crucial factors in the attorneys' choice to have her as their plaintiff. McCorvey recounted that the lawyers asked if she thought abortion should be legal. McCorvey said she did not know. Weddington told her, "It's just a piece of tissue. You just missed your period." This convinced McCorvey that abortion should be legal. She agreed to let them represent her under the impression that she would be able to eventually get a legal abortion. She smoked an illegal drug and drank wine so she would not have to think about her pregnancy. McCorvey gave birth to a daughter at Dallas Osteopathic Hospital on June 2, 1970; the baby, Shelley Lynn Thornton, was adopted by a couple in Texas. In 1970, Coffee and Weddington filed ''Roe v. Wade'' as a lawsuit in the U.S. District Court for the Northern District of Texas on behalf of McCorvey under the legal pseudonym "
Jane Roe Norma Leah Nelson McCorvey (September 22, 1947 – February 18, 2017), also known by the pseudonym "Jane Roe", was the plaintiff in the landmark American legal case ''Roe v. Wade'' in which the U.S. Supreme Court ruled in 1973 that individual s ...
", and they also filed ''Does v. Wade'' on behalf of the married couple.Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal
by Marian Faux, New York City: Cooper Square Press, 2001, page 85
The
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisd ...
for both cases was
Dallas County District Attorney The Dallas County District Attorney is the elected, or appointed by the Texas Governor in the event of a vacancy, district attorney (DA) of Dallas County, Texas. Currently, this position is held by John Creuzot, a Democrat who defeated Faith Joh ...
,
Henry Wade Henry Menasco Wade (November 11, 1914 – March 1, 2001) was an American lawyer who served as district attorney of Dallas County from 1951 to 1987. He participated in two notable U.S. court cases of the 20th century: the prosecution of Jack Ru ...
, who represented the State of Texas. Weddington later stated that she "saw ''Roe'' as part of a much larger effort by many attorneys" whose collective interests she represented. James H. Hallford was a physician who was in the process of being prosecuted for performing two abortions. The Court allowed him to join the suit as a physician- intervenor on behalf of Jane Roe.What does the original Roe v. Wade really say?
by Amanda Robert, ''American Bar Association Journal'', May 3, 2022 an

(Archived October 22, 2012)
One of the cases was assigned to a panel of judges which included Judge Sarah T. Hughes, who they thought would be sympathetic, and the cases were consolidated. In accordance with the Court's rules, two of the judges hearing the consolidated case were assigned on the basis of their judicial district, and the third judge on the panel was a circuit court judge chosen by the appellate Chief Justice of the United States. The consolidated lawsuit was heard by a three-judge panel consisting of district court judges
Sarah T. Hughes Sarah Tilghman Hughes (August 2, 1896 – April 23, 1985) was an American lawyer and federal judge who served on the United States District Court for the Northern District of Texas. She is best known as the judge who swore in Lyndon B. Johnson as ...
and William McLaughlin Taylor Jr. and appellate judge Irving Loeb Goldberg of the
U.S. Court of Appeals for the Fifth Circuit The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a federal court with appellate jurisdiction over the district courts in the following federal judicial districts: * Eastern District of Louisiana * Mi ...
. Hughes knew Coffee, who clerked for her from 1968–1969.The Untold Dallas Origins of Roe v. Wade
by Joshua Prager, ''D Magazine'', January 11, 2022
Additionally, the backgrounds of two other judges also gave Weddington and Coffee hope they would be successful. On June 17, 1970, the three judges unanimously ruled in McCorvey's favor and declared the Texas law unconstitutional, finding that it violated the right to privacy found in the Ninth Amendment. The court relied on Justice
Arthur Goldberg Arthur Joseph Goldberg (August 8, 1908January 19, 1990) was an American statesman and jurist who served as the 9th U.S. Secretary of Labor, an Associate Justice of the Supreme Court of the United States, and the 6th United States Ambassador to ...
's 1965 concurrence in '' Griswold v. Connecticut''. Yet the Court also declined to grant an
injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in p ...
against enforcing the law, and ruled against the married couple on the basis that they lacked standing. Since Wade said he would continue to prosecute people for performing abortions, the lack of an injunction meant that McCorvey could not get an abortion.


Hearing the case


Postponement

''Roe v. Wade'' reached the Supreme Court when both sides appealed in 1970. The case continued under the name ''Roe v. Wade'' instead of being switched to ''Wade v. Roe''. The justices delayed taking action on ''Roe'' and a closely related case, '' Doe v. Bolton'', until they had first decided certain other cases. One case they decided first was '' Younger v. Harris''. The justices felt the appeals raised difficult questions on judicial
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...
. Another case was ''
United States v. Vuitch ''United States v. Vuitch'', 402 U.S. 62 (1971), was a United States Supreme Court abortion rights case, which held that the District of Columbia's abortion law banning the practice except when necessary for the health or life of the woman was not ...
'', in which they considered the constitutionality of a
District of Columbia ) , image_skyline = , image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle (Washington, D.C.), Logan Circle, Jefferson Memoria ...
statute which banned abortion except when the mother's life or health was endangered. The Court upheld the statute on the grounds that the word "health" was not
unconstitutionally vague In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand, and a constitutionally-protected interest cannot tolerate permissible activity to be chilled within the ra ...
and placed the burden of proof concerning dangers to the life or health of the mother on the prosecutor instead of on the person who had performed the abortion. Justice William O. Douglas wrote a lengthy dissenting opinion to this case. He argued that the right to marital privacy and the limitation of family size from '' Griswold v. Connecticut'' also applied here, although he acknowledged that "on the other side is the belief of many that the fetus, once formed, is a member of the human family and that mere personal inconvenience cannot justify the fetus' destruction." He also challenged the majority opinion with a series of hypothetical questions asking whether "health" might also include the stigma of having an
illegitimate Legitimacy, in traditional Western common law, is the status of a child born to parents who are legally married to each other, and of a child conceived before the parents obtain a legal divorce. Conversely, ''illegitimacy'', also known as '' ...
child, anxiety from the pregnancy being unwanted, the physical work of raising a child, the financial drain from the added expense of another child, and far off health risks that may never actually materialize in a similar fashion to how risks were warded off with
prophylactic Preventive healthcare, or prophylaxis, consists of measures taken for the purposes of disease prevention.Hugh R. Leavell and E. Gurney Clark as "the science and art of preventing disease, prolonging life, and promoting physical and mental hea ...
appendectomy. Douglas' dissent made a similar legal argument to the one used two years later in ''Roe v. Wade''. The following day after their decision was announced, the court voted to hear both ''Roe'' and ''Doe''. According to Blackmun, Stewart felt the cases were a straightforward application of ''Younger v. Harris'', and enough justices agreed to hear the cases in order to review whether they would be suitable for federal as opposed to only state courts. This sort of review was not about the constitutionality of abortion and would not have required evidence, witnesses, or a record of facts. The oral argument was scheduled by the full Court for December 13, 1971. Before the Court could hear the oral argument, Justices
Hugo Black Hugo Lafayette Black (February 27, 1886 – September 25, 1971) was an American lawyer, politician, and jurist who served as a U.S. Senator from Alabama from 1927 to 1937 and as an associate justice of the U.S. Supreme Court from 1937 to 1971. ...
and
John Marshall Harlan II John Marshall Harlan (May 20, 1899 – December 29, 1971) was an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1955 to 1971. Harlan is usually called John Marshall Harlan II to distinguish him ...
retired. Chief Justice
Warren Burger Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney and jurist who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the St. Paul Colleg ...
asked Justice
Potter Stewart Potter Stewart (January 23, 1915 – December 7, 1985) was an American lawyer and judge who served as an Associate Justice of the United States Supreme Court from 1958 to 1981. During his tenure, he made major contributions to, among other areas ...
and Justice Blackmun to determine whether ''Roe'' and ''Doe'', among others, should be heard as scheduled. They recommended that the Court continue on as scheduled.


Oral argument

As she began speaking for the oral argument, Sarah Weddington was unaware that the Court had decided to hear the case in order to decide which courts had jurisdiction to hear it rather than as an attempt to overturn abortion laws in a broad ruling. She began by bringing up constitutional reasons why the Court should overturn Texas's abortion law, but Justice Stewart asked questions directed towards the jurisdiction question instead. Weddington replied that she saw no problem with jurisdiction and continued to talk about a
constitutional right A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognized and established by a sovereign state or union of states. Constitutional rights may be expressly stipulated in a national constitution, or they may ...
to abortion. Overall, she spent between 20 and 30 minutes discussing jurisdiction and procedure instead of constitutional issues. 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".Sant, Geoffrey.
8 horrible courtroom jokes and their ensuing legal calamities
, ''Salon.com'' (July 27, 2013): "The title of Worst Joke in Legal History belongs to one of history's highest-profile cases. Defending Texas's abortion restrictions before the Supreme Court, attorney Mr. Jay Floyd decided to open oral argument with a sexist joke." Retrieved August 10, 2010.
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." McCorvey did not attend either of the oral arguments along with her two lawyers. After talking McCorvey out of getting an illegal abortion and getting her name signed on an affidavit for the
lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
, Weddington did not speak again with McCorvey until four months after ''Roe'' was decided.


Initial discussions

After the first argument session, Burger assigned the task of writing the Court's opinions for both ''Roe'' and ''Doe'' to Blackmun. Douglas suggested to Blackmun that Burger assigned the opinions to him out of malicious intention, but Blackmun disagreed. He knew that Burger could not write it himself because the abortion was too controversial, and his opinions might get rejected by the majority. He also understood why the other justices could not be assigned to write the opinions: Douglas was too liberal for the public to accept his word. Likewise, he might split the Court's vote by writing something radical. In addition, the quality of his opinions had suffered recently. Brennan was the only Catholic on the Court, and he would have to face Catholic political groups which were against abortion. If Marshall wrote the opinions, the ruling would be perceived as being directed towards African Americans, and he would have to face the displeasure of African American political groups. Stewart would have trouble going far enough in legalizing abortion. At this point, Black and Harlan had been replaced by William Rehnquist and Lewis F. Powell Jr., but the first argument had already occurred before they became Supreme Court justices. Justice Blackmun worked on a preliminary opinion for ''Roe'' which argued that Texas's law was unconstitutionally vague. This approach accommodated the claims of some doctors who were concerned that prosecutors might disagree with them over what constituted "life". Blackmun thought this approach would be a good way to avoid controversy which would come with saying there was a fundamental right to abortion. Brennan and Douglas disagreed with Blackmun and wrote to him that instead he needed to focus on privacy. After communicating with the other justices, Blackmun felt that his opinion did not adequately reflect his liberal colleagues' views. In March 1972, the court issued a ruling in '' Eisenstadt v. Baird'', a landmark case which applied the earlier marital privacy right now also to unmarried individuals. Douglas wrote to Blackmun in May 1972 that he thought there were four judges who were definitely willing to rule in the majority—himself, Brennan, Stewart, and Marshall. Blackmun at one point thought all seven justices wanted to vote in the majority. In May 1972, Blackmun proposed that the case be reargued. Justice Douglas threatened to write a dissent from the reargument order because he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold the Texas abortion statutes. He was coaxed out of the action by his colleagues, and instead 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 the pseudonymous Jane Roe, and Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for Texas. A June 1972 memo written by Douglas to his colleagues discussing the case was leaked to and published in ''
The Washington Post ''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large n ...
'' before the decision was published.


Drafting the opinion

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 The Mayo Clinic () is a nonprofit American academic medical center focused on integrated health care, education, and research. It employs over 4,500 physicians and scientists, along with another 58,400 administrative and allied health staf ...
in Minnesota, where he had worked in the 1950s. He talked daily on the phone with
George Frampton Sir George James Frampton, (18 June 1860 – 21 May 1928) was a British sculptor. He was a leading member of the New Sculpture movement in his early career when he created sculptures with elements of Art Nouveau and Symbolism, often combinin ...
, his 28-year old law clerk who stayed behind in Washington, D.C. Frampton researched the history of abortion using a book authored by Lawrence Lader, the founding chairman of what is now called
NARAL Pro-Choice America NARAL Pro-Choice America, commonly known as simply NARAL ( ), is a non-profit 501(c)(4) organization in the United States that engages in lobbying, political action, and advocacy efforts to oppose restrictions on abortion, to expand access t ...
. Blackmun's papers made available since his death contain at least seven citations for Lader's 1966 book, ''Abortion''. Chapter 16 of his book, "A Blueprint for Changing U.S. Abortion Laws" predicted that if abortion were to be legalized, "the possibility of community opposition is slight". Lader also predicted that "If such a theoretical case was carried to a high court, perhaps even the U.S. Supreme Court, and the judges confirmed a broad interpretation of the meaning of a threat to life, undoubtedly a landmark in abortion decisions would be reached." The historical survey for ''Roe'' also referenced two articles by Cyril Means, who served as
counsel A counsel or a counsellor at law is a person who gives advice and deals with various issues, particularly in legal matters. It is a title often used interchangeably with the title of ''lawyer''. The word ''counsel'' can also mean advice given ...
to NARAL. In the articles, Means misrepresented the common law tradition in ways that were helpful to the ''Roe'' side. Abortion Distortion: A Review of ''Dispelling the Myths of Abortion History'' by Joseph W. Dellapenna by John A. Keown, ''The Journal of Law, Medicine & Ethics'', Volume 35, Issue 2, Summer 2007, page 326; quotes cited to ''Dispelling the Myths of Abortion History'' by J. W. Dellapenna, Durham: Carolina Academic Press, 2006, page 684; also cited as footnote 171 on page 30 (page 28 of the pdf) o

Back to the Future of Abortion Law: ''Roe'' Rejection of America's History and Traditions by John Keown, ''Issues in Law and Medicine'' Volume 22, Issue 1, Summer 2006; footnote 171 cite
Liberty and Sexuality: The Right to Privacy and the Making of ''Roe v. Wade''
by David J. Garrow, 1994, pages 853–54; in Garrow, the memo is quoted as footnote 41 and cited as "David undermannto Roy
ucas The Universities and Colleges Admissions Service (UCAS ) is a UK-based organisation whose main role is to operate the application process for British universities. It operates as an independent charity, funded by fees charged to applicants an ...
"Legislative Purpose et al.," 5 August 1971, Lucas Box 13."
Roy Lucas, the principal attorney assisting Weddington and Coffee, had previously received a memo from his colleague David M. Tundermann about Means's scholarship. The memo stated that the conclusions in Means's articles "sometimes strain credibility." It also stated:
Where the important thing is to win the case no matter how, however, I suppose I agree with Means's technique: begin with a scholarly attempt at historical research; if it doesn't work, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.
After the Court held the second argument session, 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. Byron White was unwilling to sign on to Blackmun's opinion, and Justice Rehnquist had already decided to dissent. During the drafting process, the justices discussed the trimester framework at great length. Powell had suggested that the point where the state could intervene be placed at viability, which
Thurgood Marshall Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-A ...
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 In pregnancy terms, quickening is the moment in pregnancy when the pregnant woman starts to feel the fetus' movement in the uterus. Medical facts The first natural sensation of quickening may feel like a light tapping or fluttering. These sensat ...
or viability, is equally arbitrary." In the same memo he suggested that the end of the first trimester seemed more likely to get support from other justices and allowed states the ability to adjust their statutes. He was of the impression that doctors were concerned that recovering abortion patients would take up too many hospital beds, and that abortion patients later than the first trimester were more likely to require hospital beds than those whose fetuses were aborted earlier.Revelations on the Road to Roe
by David Garrow, ''American Lawyer'', Volume 22, May 2000, page 4 of the pdf
Contrary to the justices who preferred viability, Douglas preferred the first-trimester line. Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to state legislatures, though he joined Blackmun's decision. William Brennan 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.


Supreme Court decision

On January 22, 1973, the Supreme Court issued a 7–2 decision in favor of "Jane Roe" (Norma McCorvey) holding that women in the United States had a fundamental right to choose whether to have abortions without excessive government restriction and striking down Texas's abortion ban as
unconstitutional Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
. The decision was issued together with a companion case, ''Doe v. Bolton'', which involved a similar challenge to
Georgia Georgia most commonly refers to: * Georgia (country), a country in the Caucasus region of Eurasia * Georgia (U.S. state), a state in the Southeast United States Georgia may also refer to: Places Historical states and entities * Related to the ...
's abortion laws. Larry Hammond, a law clerk for Powell, gave a ''
Time Time is the continued sequence of existence and event (philosophy), events that occurs in an apparently irreversible process, irreversible succession from the past, through the present, into the future. It is a component quantity of various me ...
'' reporter a copy of the decision "
on background In journalism, a source is a person, publication, or knowledge other record or document that gives timely information. Outside journalism, sources are sometimes known as "news sources". Examples of sources include but are not limited to offic ...
", expecting that it would be issued by the court before the next issue of ''Time'' was published; however, due to a delay in the decision's release, the text of the decision appeared on newsstands a few hours before it was published by the court. Burger demanded a meeting with ''Time'' editors and punishment for the leaker. Powell refused Hammond's resignation, on the grounds that "Hammond had been double-crossed" by the reporter.


Opinion of the Court

Seven justices formed the majority and joined an
opinion An opinion is a judgment, viewpoint, or statement that is not conclusive, rather than facts, which are true statements. Definition A given opinion may deal with subjective matters in which there is no conclusive finding, or it may deal with ...
written by Justice
Harry Blackmun Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 to 1994. Appointed by Republican President Richard Nixon, Black ...
.


Mootness

After reciting the facts of the case, the Court's opinion first addressed procedure and justiciability. This included
mootness The terms moot and mootness are used in both in English and American law, although with different meanings. In the legal system of the United States, a matter is moot if further legal proceedings with regard to it can have no effect, or eve ...
, a legal doctrine that prevents American federal courts from hearing cases that have ceased to be "live" controversies because of intervening events. Under a normal application of the doctrine, McCorvey's appeal would have been considered moot because she had already given birth to her child and therefore no longer had a pregnancy to abort. The Court concluded that an established exception to the mootness doctrine allows consideration of cases that are "capable of repetition, yet evading review". Blackmun noted that McCorvey might get pregnant again, and pregnancy would normally conclude more quickly than an appellate process: "If that termination makes a case moot, pregnancy
litigation - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
seldom will survive much beyond the trial stage, and appellate review will be effectively denied."


Abortion and right to privacy

After dealing with mootness and
standing Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...
, the Court proceeded to the main issue of the case: the constitutionality of Texas's abortion law. The Court first surveyed abortion's status throughout the
legal history Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilisations and operates in the wider context of social history. Certain jurists and histo ...
of
Roman law Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
and the Anglo-American common law. It also reviewed the developments of medical procedures and technology used in abortions. After its historical surveys, the Court introduced the concept of a constitutional "
right to privacy The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy. On 10 December 194 ...
" that it said had been intimated in its earlier decisions '' Meyer v. Nebraska'' and '' Pierce v. Society of Sisters'', which involved parental control over
childrearing Parenting or child rearing promotes and supports the physical, emotional, social, spiritual and intellectual development of a child from infancy to adulthood. Parenting refers to the intricacies of raising a child and not exclusively for a b ...
, and ''Griswold v. Connecticut'', which involved the use of contraception. Then, "with virtually no further explanation of the privacy value", the Court ruled that regardless of exactly which provisions were involved, the U.S. Constitution's guarantees of liberty covered a right to privacy that protected a pregnant woman's decision whether to abort a pregnancy. 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". At the same time, the Court rejected the notion that this right to privacy was absolute. It held instead that women's abortion right must be balanced against other
government interest Government or state interest is a concept in law that allows the state to regulate a given matter. The concept may apply differently in different countries, and the limitations of what should and should not be of government interest vary, and ha ...
s, such as protecting
maternal health Maternal health is the health of women during pregnancy, childbirth, and the postpartum period. In most cases, maternal health encompasses the health care dimensions of family planning, preconception, prenatal, and postnatal care in order to ens ...
and protecting the life of the fetus. The Court held that the interests were sufficiently compelling to permit states to impose some limitations on pregnant women's right to choose to have an abortion. Texas's lawyers had argued that limiting abortion to situations where the mother's life was in danger was justified because life began at the moment of conception, and therefore the state's governmental interest in protecting prenatal life applied to all pregnancies regardless of their
stage Stage or stages may refer to: Acting * Stage (theatre), a space for the performance of theatrical productions * Theatre, a branch of the performing arts, often referred to as "the stage" * ''The Stage'', a weekly British theatre newspaper * Sta ...
. The Court said that there was no indication that the Constitution's uses of the word "
person A person ( : people) is a being that has certain capacities or attributes such as reason, morality, consciousness or self-consciousness, and being a part of a culturally established form of social relations such as kinship, ownership of prope ...
" were meant to include fetuses, and it rejected Texas's argument that a fetus should be considered a "person" with a legal and constitutional
right to life The right to life is the belief that a being has the right to live and, in particular, should not be killed by another entity. The concept of a right to life arises in debates on issues including capital punishment, with some people seeing it a ...
. The Court observed that there was still great disagreement over when an unborn fetus becomes a living being. To balance women's rights to privacy and state governments' interests in protecting mothers' health and prenatal life, the Court created the trimester framework. During the first trimester, when it was believed that the procedure was safer than childbirth, the Court ruled that a state government could place no restrictions on women's ability to choose to abort pregnancies other than imposing minimal medical safeguards, such as requiring abortions to be performed by
licensed A license (or licence) is an official permission or permit to do, use, or own something (as well as the document of that permission or permit). A license is granted by a party (licensor) to another party (licensee) as an element of an agreeme ...
physicians. From the second trimester on, the Court ruled that evidence of increasing risks to the mother's health gave states a compelling interest that allowed them to enact medical regulations on abortion procedures so long as they were reasonable and "narrowly tailored" to protecting mothers' health. From the beginning of the third trimester on—the point at which a fetus became viable under the medical technology available in the early 1970s—the Court ruled that a state's interest in protecting prenatal life became so compelling that it could legally prohibit all abortions except where necessary to protect the mother's life or health. Having completed its analysis, the Court concluded that Texas's abortion statutes were unconstitutional and struck them down.


Concurrences

Three justices from the majority filed
concurring opinion In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for their deci ...
s in the case. Justice Potter Stewart wrote a concurring opinion in which he said 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 Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if only procedural protections are present or the rights are unen ...
, which says that the
Due Process Clause In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except a ...
protection of liberty extends beyond simple procedures and protects certain fundamental rights. Justice William O. Douglas's concurring opinion described his view that although the Court was correct to find that the right to choose to have an abortion was a fundamental right, he thought it would have been better to derive it from the Ninth Amendmentwhich states that the fact that a right is not specifically enumerated in the Constitution shall not be construed to mean that American people do not possess itrather than through the Fourteenth Amendment's Due Process Clause. Chief Justice Warren Burger wrote a concurrence in which he wrote that he thought it would be permissible to allow a state to require two physicians to certify an abortion before it could be performed. His concurrence also states:''Roe v. Wade'', Mr. Chief Justice Burger, concurring
, ''Landmark Cases'', C-SPAN, January 22, 1973
I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.
This has been interpreted as Chief Justice Burger thinking that medical standards and judgment would restrict the number of abortions. Instead of the law restricting abortions to limited circumstances as pre-''Roe'', now doctors would get to do the restricting. This understanding of ''Roe'' appears to be related to several statements in the majority opinion. Justice Blackmun's majority opinion states, "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." It also states, "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." Six days prior to January 22, Justice Blackmun prepared "a transcript of what I shall say, and there should be at least some reason for the press not going all the way off the deep end." The unissued news release stated:
by Adam Gorlick, ''Stanford Report'', November 20, 2008
...the Court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician.
These statements appear to indicate that the justices voting in the majority thought that patients had personal physicians. Earlier in American history it was once common for people to have individual doctors, but the nature of doctor-patient relationship had already changed prior to ''Roe''.


Dissents

Justices
Byron White Byron "Whizzer" Raymond White (June 8, 1917 April 15, 2002) was an American professional football player and jurist who served as an associate justice of the U.S. Supreme Court from 1962 until his retirement in 1993. Born and raised in Colo ...
and
William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...
dissented from the Court's decision. White's dissent, which was issued with ''Roe'' companion case, ''Doe v. Bolton'', argued that the Court had no basis for deciding between the competing values of pregnant women and unborn children. White also argued that the legality of abortion, "for the most part, should be left with the people and the political processes the people have devised to govern their affairs." Rehnquist's dissent compared the majority's use of substantive due process to the Court's repudiated use of the doctrine in the 1905 case '' Lochner v. New York''. He elaborated on several of White's points and asserted that the Court's historical analysis was flawed. From this historical record, Rehnquist wrote, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." He concluded "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."


Reception

There was a strong response to the decision shortly after it was issued. Prominent organized groups that responded to ''Roe'' include National Association for the Repeal of Abortion Laws, which became the National Abortion Rights Action League in late 1973 to reflect the Court's repeal of restrictive laws, and the
National Right to Life Committee The National Right to Life Committee (NRLC) is the oldest and largest national anti-abortion organization in the United States with affiliates in all 50 states and more than 3,000 local chapters nationwide. Since the 1980s, NRLC has influen ...
. The legal scholar
Ronald Dworkin Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Yo ...
described it as "undoubtedly the best-known case the United States Supreme Court has ever decided".


Support for ''Roe'' and abortion rights


1960s–1970s

In the 1960s, there was an alliance between the
population control movement Human population planning is the practice of intentionally controlling the growth rate of a human population. The practice, traditionally referred to as population control, had historically been implemented mainly with the goal of increasing p ...
and the
abortion-rights movement in the United States The United States abortion-rights movement (also known as the pro-choice movement) is a sociopolitical movement in the United States supporting the view that a woman should have the legal right to an elective abortion, meaning the right to term ...
.
Abortion rights Abortion-rights movements, also referred to as pro-choice movements, advocate for the right to have legal access to induced abortion services including elective abortion. They seek to represent and support women who wish to terminate their pre ...
were especially supported by younger women within the
population control Population control is the practice of artificially maintaining the size of any population. It simply refers to the act of limiting the size of an animal population so that it remains manageable, as opposed to the act of protecting a species from ...
movement. The cooperation was mostly due to feminists who wanted some of the popularity already enjoyed by the population control movement. In addition, population control advocates thought that legalizing abortion would help solve the coming population crisis that demographers had projected. In 1973, Hugh Moore's Population Crisis Committee and
John D. Rockefeller III John Davison Rockefeller III (March 21, 1906 – July 10, 1978) was an American philanthropist. Rockefeller was the eldest son and second child of John D. Rockefeller Jr. and Abby Aldrich Rockefeller as well as a grandson of Standard Oil co-found ...
's
Population Council The Population Council is an international, nonprofit, non-governmental organization. The Council conducts research in biomedicine, social science, and public health and helps build research capacities in developing countries. One-third of its res ...
both publicly supported abortion rights following ''Roe''.After Roe: The Lost History of the Abortion Debate
by Mary Ziegler, Cambridge, Massachusetts: Harvard University Press, 2015, page 117
Previously, public support for abortion rights within the population control movement instead came from less established organizations such as
Zero Population Growth Zero population growth, sometimes abbreviated ZPG, is a condition of demographic balance where the number of people in a specified population neither grows nor declines; that is, the number of births plus in-migrants equals the number of death ...
. An exception was
Planned Parenthood-World Population The Planned Parenthood Federation of America, Inc. (PPFA), or simply Planned Parenthood, is a nonprofit organization that provides reproductive health care in the United States and globally. It is a tax-exempt corporation under Internal Rev ...
, which supported repealing all laws against abortion in 1969. Together, population control and abortion rights advocates voiced the benefits of legalized abortion such as smaller welfare costs, fewer illegitimate births, and slower population growth. At the same time, the use of these arguments put them at odds with civil-rights movement leaders and Black Power activists who were concerned that abortion would be used to eliminate non-whites.After Roe: The Lost History of the Abortion Debate
by Mary Ziegler, Cambridge, Massachusetts: Harvard University Press, 2015, page 98
H. Rap Brown denounced abortion as "black genocide",After Roe: The Lost History of the Abortion Debate
by Mary Ziegler, Cambridge, Massachusetts: Harvard University Press, 2015, page 115
and
Dick Gregory Richard Claxton Gregory (October 12, 1932 – August 19, 2017) was an American comedian, civil rights leader, business owner and entrepreneur, and vegetarian activist. His writings were best sellers. Gregory became popular among the Afric ...
said that his "answer to genocide, quite simply, is eight Black kids and another one on the way." Soon after ''Roe'', the population control movement suffered setbacks, which caused the movement to lose political support and instead appear divisive. On June 27, 1973, a lawsuit was filed concerning the Relf sisters, 14-year old Minnie Lee and her 12-year old sister Alice Lee. A worker at a federally-funded family planning clinic lied to their illiterate mother, saying they would get birth control shots. Instead, the Relf sisters were sterilized without their knowledge or consent. During the next fifteen months, 80 additional women came forward about their forced sterilizations, all belonging to minority races. Concerns rose that abortions would also become compulsory. During the 1974
World Population Conference The first ever World Population Conference was held at the Salle Centrale, Geneva, Switzerland, from 29 August to 3 September 1927. Organized by the forerunner of the United Nations, the League of Nations, and Margaret Sanger; the conference was an ...
in
Bucharest Bucharest ( , ; ro, București ) is the capital and largest city of Romania, as well as its cultural, industrial, and financial centre. It is located in the southeast of the country, on the banks of the Dâmbovița River, less than north o ...
, Romania, most developing nations argued that the developed nations' focus on population growth was an attempt to avoid solving the deeper causes of underdevelopment, such as the unequal structure of international relations. Instead, they wanted more favorable terms under the
New International Economic Order The New International Economic Order (NIEO) is a set of proposals advocated by developing countries to end economic colonialism and dependency through a new interdependent economy. The main NIEO document recognized that the current international e ...
. A draft plan with fertility targets was strongly opposed by the developing countries, which surprised the delegations from the United States, Canada, and Great Britain.Global Challenges, Local Knowledges: Politics and Expertise at the World Population Conference in Bucharest, 1974
by Corina Doboș, ''East Central Europe'', Volume 45, November 29, 2018, pages 219–220 (page 5–6 of the pdf)
The final plan omitted fertility targets and instead stated, "A population policy may have a certain success if it constitutes an integral part of socio-economic development." As members questioned the political benefits of population control rhetoric, the abortion-rights movement distanced itself from the population control movement.''Roe'' Race: The Supreme Court, Population Control, and Reproductive Justice
by Mary Ziegler, ''Yale Journal of Law and Feminism'' Volume 25, Issue 1, 2013, page 36; for the source of the memo see footnote 236
In October 1973, Robin Elliott circulated a memo to other Planned Parenthood members concerning opposition to "Planned Parenthood's credibility in its reference to the population problem". Instead, she thought they should use ''Roe'' inspired rhetoric about "the reaffirmation of commitment to freedom of choice in parenthood." By 1978, a NARAL handbook denounced population control.


21st century

Into the 21st century, advocates of ''Roe'' describe it as vital to the preservation of
women's rights Women's rights are the rights and entitlements claimed for women and girls worldwide. They formed the basis for the women's rights movement in the 19th century and the feminist movements during the 20th and 21st centuries. In some countri ...
, personal freedom, bodily integrity, and privacy. Advocates have also reasoned that access to safe abortion and reproductive freedom generally are
fundamental rights Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Susta ...
. Supporters of ''Roe'' contend that even if abortion rights are also supported by another portion of the constitution, the decision in 1973 accurately founds the right in the Fourteenth Amendment. Others support ''Roe'' despite concern that the fundamental right to abortion is found elsewhere in the Constitution but not in the portions referenced in the 1973 decision."Forced Labor: A Thirteenth Amendment Defense of Abortion"
Archived February 25, 2009, by Andrew Koppelman, ''Northwestern Law Review'', Vol. 84, p. 480 (1990).

What Roe v. Wade Should Have Said; The Nation's Top Legal Experts Rewrite America's Most Controversial decision
', Jack Balkin Ed. (NYU Press 2005). Retrieved January 26, 2007
They also tend to believe that the power balance between men and women is unequal, and that issues like access to birth control and political representation affect women's equality. Opinion polls in late 2021 indicated that while a majority of Americans oppose overturning ''Roe'', a sizable minority opposed overturning ''Roe'' but also desired to make abortion illegal in ways that ''Roe'' would not permit. This was attributed to poll respondents misunderstanding ''Roe v. Wade'' or misinterpreting the poll question. 2018–2019 polls showed that while 60 percent of Americans generally support abortion in the first trimester, this drops to 20 percent for the second trimester, even though ''Roe'' protects the right to abortion until the last weeks of the second trimester, and at the same time 69 percent said they would not like to see ''Roe'' overturned, compared to 29 percent who said they would like to see ''Roe'' overturned. Another poll showed that 43 percent of those who said abortion should be illegal in most or all cases opposed overturning ''Roe'', while 26 percent of those who said abortion should be legal in most or all cases supported overturning ''Roe''. Polls also found that men and women have similar views on abortion, which are linked to how people think about motherhood, sex, and women's social roles; supporters of ''Roe'' and abortion rights tend to see women's ability to make decisions about their bodies as fundamental to
gender equality Gender equality, also known as sexual equality or equality of the sexes, is the state of equal ease of access to resources and opportunities regardless of gender, including economic participation and decision-making; and the state of valuing d ...
. Most polls in the late 2010s and early 2020s showed overwhelming support, at between 85 and 90 percent, among Americans that abortion should be legal in at least some circumstances, which varies or drops depending on the specifics. A January 2022 CNN poll found a 59% majority of Americans want their state to have laws that are "more permissive than restrictive" on abortion if ''Roe'' is overturned, 20% want their state to ban abortion entirely, and another 20% want it to be restricted but not banned. In two March 2022 polls, between 61 and 64 percent of Americans said abortion should be legal in most or all cases, while between 35 and 37 percent said abortion should be illegal in most or all cases. A May 2022
Gallup Gallup may refer to: * Gallup, Inc., a firm founded by George Gallup, well known for its opinion poll * Gallup (surname), a surname *Gallup, New Mexico, a city in New Mexico, United States ** Gallup station, an Amtrak train in downtown Gallup, New ...
poll showed that 50% of Americans thought abortions should be legal under certain circumstances, with 35% saying it should be legal under any circumstances, and 15% saying it should be illegal in all circumstances, as well as a record number of Americans who identify as ''
pro-choice Abortion-rights movements, also referred to as pro-choice movements, advocate for the right to have legal access to induced abortion services including elective abortion. They seek to represent and support women who wish to terminate their pr ...
''. Before ''Roe'' was overturned in ''
Dobbs v. Jackson Women's Health Organization ''Dobbs v. Jackson Women's Health Organization'', , is a landmark decision of the U.S. Supreme Court in which the court held that the Constitution of the United States does not confer a right to abortion. The court's decision overruled both ''Ro ...
'', a majority of Americans thought that ''Roe'' was safe and would not be overturned. Since the draft's leaks showed ''Roe'' to be overturned in ''Dobbs'', as happened in June 2022, abortion became a concern and a very important issue for Democrats, who previously lagged behind Republicans on this; some Americans, in particular liberals but also a few conservatives, may have become more aware of the popular support for ''Roe'', which they had previously understated. In June 2022, Gallup reported that a 61% majority of Americans say abortion should be legal in all or most cases, while 37% say abortion should be illegal in all or most cases. It also recorded the highest partisan divide since 1995, compared to the mid-1970s and throughout the 1980s when both Democrats and Republicans were closer on the issue. That same month, the Congregation L'Dor Va-Dor filed a lawsuit against a new law in Florida that would outlaw abortion after 15 weeks of pregnancy, including in cases of rape or incest. Unlike other legal challenges to abortion restrictions in the United States that generally rely on the right to privacy established by ''Roe'', the synagogue argued that Florida's abortion law violates religious freedom, as "Jewish law says that life begins at birth, not at conception."


Opposition to ''Roe''


Opposition to ''Roe'' but support for abortion rights

Some supporters of abortion rights oppose ''Roe v. Wade'' on the grounds that it laid a foundation for abortion in
civil rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life ...
rather than in
human right Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hum ...
s, which are broader and would require government entities to take active measures to ensure every woman has access to abortion. This particular position is indicated by the use of rhetoric concerning "
reproductive justice Reproductive justice is a critical feminist framework that was invented as a response to United States reproductive politics. The three core values of reproductive justice are the right to have a child, the right to not have a child, and the righ ...
", which replaces earlier rhetoric centered around "choice", such as the "pro-choice" label. Reproductive justice proponents contend that factors permitting choice are unequal, thus perpetuating oppression and serving to divide women. Reproductive justice advocates instead want abortion to be considered an affirmative right that the government would be obligated to guarantee equal access to, even if the women seeking abortions are nonwhite, poor, or live outside major
metropolitan areas A metropolitan area or metro is a region that consists of a densely populated urban agglomeration and its surrounding territories sharing industries, commercial areas, transport network, infrastructures and housing. A metro area usually ...
. With a broader interpretation of the right to an abortion, it would be possible to require all new obstetricians to be in favor of abortion rights, lest as professionals they employ conscience clauses and refuse to perform abortions. In the 1989 decision of ''Webster v. Reproductive Health Services'', the Supreme Court ruled against an affirmative right to nontherapeutic abortions and noted that states would not be required to pay for them. Some in academia have equated the denial of abortion rights to compulsory motherhood, and reason that because of this abortion bans violate the Thirteenth Amendment: "When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the Thirteenth Amendment. Even if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant." In 1993, a district court rejected an attempt to justify abortion rights apart from ''Roe'' and instead upon the basis that pregnancy and childrearing constituted
involuntary servitude Involuntary servitude or involuntary slavery is a legal and constitutional term for a person laboring against that person's will to benefit another, under some form of coercion, to which it may constitute slavery. While laboring to benefit anothe ...
.


Opposition to both ''Roe'' and abortion rights

Every year, on the anniversary of the decision, opponents of abortion march up
Constitution Avenue Constitution Avenue is a major east–west street in the northwest and northeast quadrants of the city of Washington, D.C., in the United States. It was originally known as B Street, and its western section was greatly lengthened and widened bet ...
to the Supreme Court Building in Washington, D.C., in the
March for Life March for Life may refer to: * March for Life (Washington, D.C.), an annual anti-abortion gathering held in Washington, D.C. * March for Life (Paris), an annual demonstration held in Paris protesting abortion * March for Life (Prague), an annual ...
. Around 250,000 people attended the march until 2010. Estimates put the 2011 and 2012 attendances at 400,000 each, and the 2013 March for Life drew an estimated 650,000 people. Opponents of ''Roe'' say that the decision lacks a valid constitutional foundation. Like the dissenters in ''Roe'', they maintain that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the legislative process, rather than through an all-encompassing ruling from the Supreme Court. Another argument against the ''Roe'' decision, as articulated by former president
Ronald Reagan Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...
, is that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm. In response to ''Roe v. Wade'', most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent or parental notification for minors to obtain abortions; spousal mutual consent laws; spousal notification laws; laws requiring abortions to be performed in hospitals, not clinics; laws barring state funding for abortions; laws banning
intact dilation and extraction Intact dilation and extraction (D&X, IDX, or intact D&E) is a surgical procedure that removes an intact fetus from the uterus. The procedure is used both after miscarriages and for abortions in the second and third trimesters of pregnancy. In U ...
, also known as partial-birth abortion; laws requiring waiting periods before abortions; and laws mandating that women read certain types of literature and watch a
fetal ultrasound A fetus or foetus (; plural fetuses, feti, foetuses, or foeti) is the unborn offspring that develops from an animal embryo. Following embryonic development the fetal stage of development takes place. In human prenatal development, fetal deve ...
before undergoing an abortion. In 1976, Congress passed the
Hyde Amendment In U.S. politics, the Hyde Amendment is a legislative provision barring the use of federal funds to pay for abortion, except to save the life of the woman, or if the pregnancy arises from incest or rape. Before the Hyde Amendment took effect in ...
, barring the federal government from using
Medicaid Medicaid in the United States is a federal and state program that helps with healthcare costs for some people with limited income and resources. Medicaid also offers benefits not normally covered by Medicare, including nursing home care and per ...
to fund abortions except in cases of rape, incest, or a threat to the life of the mother. The Supreme Court struck down some state restrictions in a long series of cases stretching from the mid-1970s to the late 1980s, but upheld restrictions on funding, including the Hyde Amendment, in the case of ''Harris v. McRae'' (1980). Some opponents of abortion maintain that
personhood Personhood or personality is the status of being a person. Defining personhood is a controversial topic in philosophy and law and is closely tied with legal and political concepts of citizenship, equality, and liberty. According to law, only a l ...
begins at
fertilization Fertilisation or fertilization (see spelling differences), also known as generative fertilisation, syngamy and impregnation, is the fusion of gametes to give rise to a new individual organism or offspring and initiate its development. Pro ...
or conception, and should therefore be protected by the Constitution; the dissenting justices in ''Roe'' instead wrote that decisions about abortion "should be left with the people and to the political processes the people have devised to govern their affairs.".


Responses within the legal profession

Liberal and
feminist Feminism is a range of socio-political movements and ideologies that aim to define and establish the political, economic, personal, and social equality of the sexes. Feminism incorporates the position that society prioritizes the male po ...
legal scholars have had various reactions to ''Roe'', not always giving the decision unqualified support. One argument is that Justice Blackmun reached the correct result but went about it the wrong way. Balkin, Jack
Bush v. "Gore and the Boundary Between Law and Politics"
, 110 ''Yale Law Journal'' 1407 (2001): "Liberal and feminist legal scholars have spent decades showing that the result was correct even if Justice Blackmun's opinion seems to have been taken from the Court's
Cubist Cubism is an early-20th-century avant-garde art movement that revolutionized European painting and sculpture, and inspired related movements in music, literature and architecture. In Cubist artwork, objects are analyzed, broken up and reassemble ...
period."
Another is that the end achieved by ''Roe'' does not justify its means of judicial fiat. Cohen, Richard
"Support Choice, Not Roe"
''Washington Post'', (October 19, 2005): "If the best we can say for it is that the end justifies the means, then we have not only lost the argument—but a bit of our soul as well." Retrieved January 23, 2007.
David Garrow David Jeffries Garrow (born May 11, 1953) is an American author and historian. He wrote the book ''Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference'' (1986), which won the 1987 Pulitzer Prize for Biogr ...
said that the decision in ''Roe'' and also '' Doe v. Bolton'' "owed a great amount of their substance and language" to Justice Blackmun's
law clerks A law clerk or a judicial clerk is a person, generally someone who provides direct counsel and assistance to a lawyer or judge by researching issues and drafting legal opinions for cases before the court. Judicial clerks often play significant ro ...
, George Frampton and Randall Bezanson. He thought the extent of their contributions were remarkable, and that the clerks exhibited an "unusually assertive and forceful manner" in voicing their views to Justice Blackmun. In his research, it was the earliest significant example he found of this behavior pattern, which grew more consistent later on. In Garrow's evaluation, the clerks' contributions were "historically significant and perhaps decisive" in shaping the two decisions.The Brains Behind Blackmun
by David J. Garrow, ''Legal Affairs: The Magazine at the intersection of law and life'', May/June 2005
In response to Garrow, Edward Lazarus said that Justice Blackmun's later clerks like himself did not need as much direction on reproductive rights since they had Justice Blackmun's prior opinions to draw from. Lazarus thought that on at least some occasions when legal formulations were created for opinions to be published in Justice Blackmun's name, the justice himself was not engaged in originating every significant thought pattern that they employed. Lazarus agreed that Garrow's depiction of how the trimester framework came about was an example of one of these occasions. He concluded: "The problem of excessive clerk delegation was less serious in Blackmun's chambers than Garrow suggests but is also more commonplace among the justices. The modern Supreme Court has deep problems in its decisional culture and the overuse of law clerks is an aspect of this."Readers Respond: Justice Blackmun
letter by Edward Lazarus, ''Legal Affairs: The Magazine at the intersection of law and life'', May/June 2005
Justice
John Paul Stevens John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
, while agreeing with the decision, suggested that it should have been more narrowly focused on the issue of privacy. According to Stevens, if the decision had avoided the trimester framework and simply stated that the right to privacy included a right to choose abortion, "it might have been much more acceptable" from a legal standpoint. Before joining the Court, Justice
Ruth Bader Ginsburg Joan Ruth Bader Ginsburg ( ; ; March 15, 1933September 18, 2020) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1993 until her death in 2020. She was nominated by Presiden ...
criticized the decision for venturing "too far in the change it ordered". Had the decision been limited in scope to only permit abortion during certain circumstances, "physicians might have been less pleased with the decision, but the legislative trend might have continued in the direction in which it was headed". After becoming a Supreme Court justice, Ginsburg faulted the Court's approach for being "about a doctor's freedom to practice his profession as he thinks best... It wasn't woman-centered. It was physician-centered." Justice Ginsburg thought that ''Roe'' was originally intended to complement Medicaid funding for abortions, but this did not happen. About ''
Harris v. McRae ''Harris v. McRae'', 448 U.S. 297 (1980), was a case in which the Supreme Court of the United States held that states participating in Medicaid are not required to fund medically necessary abortions for which federal reimbursement was unavailable ...
'', which upheld restrictions on Medicaid abortion funding, she said:The Place of Women on the Court
by Emily Bazelon, ''New York Times Magazine'', July 7, 2009
Yes, the ruling about that surprised me. Frankly I had thought that at the time ''Roe'' was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of. So that ''Roe'' was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn't really want them. But when the court decided ''McRae'', the case came out the other way. And then I realized that my perception of it had been altogether wrong.
Watergate The Watergate scandal was a major political scandal in the United States involving the administration of President Richard Nixon from 1972 to 1974 that led to Nixon's resignation. The scandal stemmed from the Nixon administration's continu ...
prosecutor
Archibald Cox Archibald Cox Jr. (May 17, 1912 – May 29, 2004) was an American lawyer and law professor who served as U.S. Solicitor General under President John F. Kennedy and as a special prosecutor during the Watergate scandal. During his career, he was ...
thought the "failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child birth and abortion or new advances in providing for the separate existence of a fetus. Neither historian, nor
layman In religious organizations, the laity () consists of all members who are not part of the clergy, usually including any non-ordained members of religious orders, e.g. a nun or a lay brother. In both religious and wider secular usage, a layper ...
, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution." In a highly cited ''
Yale Law Journal The ''Yale Law Journal'' (YLJ), known also as the ''Yale Law Review'', is a student-run law review affiliated with the Yale Law School. Published continuously since 1891, it is the most widely known of the eight law reviews published by students ...
'' article published in the months after the decision, the American legal scholar John Hart Ely criticized ''Roe'' as a decision that was disconnected from American constitutional law. American constitutional law scholar
Laurence Tribe Laurence Henry Tribe (born October 10, 1941) is an American legal scholar who is a University Professor Emeritus at Harvard University. He previously served as the Carl M. Loeb University Professor at Harvard Law School. A constitutional law sc ...
said: "One of the most curious things about ''Roe'' is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Centrist-liberal law professors
Alan Dershowitz Alan Morton Dershowitz ( ; born September 1, 1938) is an American lawyer and former law professor known for his work in U.S. constitutional law and American criminal law. From 1964 to 2013, he taught at Harvard Law School, where he was appoin ...
,
Cass Sunstein Cass Robert Sunstein (born September 21, 1954) is an American legal scholar known for his studies of constitutional law, administrative law, environmental law, law and behavioral economics. He is also ''The New York Times'' best-selling author ...
, and
Kermit Roosevelt III Kermit Roosevelt III (born July 14, 1971) is an American author, lawyer, and legal scholar. He is a law professor at the University of Pennsylvania. He is a great-great-grandson of United States President Theodore Roosevelt and a distant cous ...
have also expressed disappointment with ''Roe v. Wade''.Roosevelt, Kermit.
Shaky Basis for a Constitutional 'Right'
, ''Washington Post'', (January 22, 2003): " is time to admit in public that, as an example of the practice of constitutional opinion writing, ''Roe'' is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result.... This is not surprising. As constitutional argument, ''Roe'' is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional
ether In organic chemistry, ethers are a class of compounds that contain an ether group—an oxygen atom connected to two alkyl or aryl groups. They have the general formula , where R and R′ represent the alkyl or aryl groups. Ethers can again ...
. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional 'person' entitled to the protection of the 14th Amendment.... By declaring an inviolable fundamental right to abortion, ''Roe'' short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values." Retrieved January 23, 2007. ()
Jeffrey Rosen, as well as
Michael Kinsley Michael E. Kinsley (born March 9, 1951) is an American political journalist and commentator. Primarily active in print media as both a writer and editor, he also became known to television audiences as a co-host on ''Crossfire''. Early life and e ...
, echo Ginsburg, arguing that a legislative movement would have been the correct way to build a more durable consensus in support of abortion rights.
William Saletan William Saletan is an American writer for '' The Bulwark''. Background and education Saletan, a Jewish native of La Porte, Texas, graduated from Swarthmore College in 1987. Journalism Abortion and contraception Saletan has written extensivel ...
wrote, "Blackmun's papers vindicate every indictment of ''Roe'': invention, overreach,
arbitrariness Arbitrariness is the quality of being "determined by chance, whim, or impulse, and not by necessity, reason, or principle". It is also used to refer to a choice made without any specific criterion or restraint. Arbitrary decisions are not necess ...
, textual indifference."
Benjamin Wittes Benjamin Wittes (born November 5, 1969) is an American legal journalist and Senior Fellow in Governance Studies at the Brookings Institution, where he is the Research Director in Public Law, and Co-Director of the Harvard Law School–Brookings ...
argued that ''Roe'' " disenfranchised millions of conservatives on an issue about which they care deeply." Edward Lazarus, a former Blackmun clerk who "loved ''Roe''s author like a grandfather", wrote: "As a matter of constitutional interpretation and judicial method, ''Roe'' borders on the indefensible.... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since ''Roe'' announcement, no one has produced a convincing defense of ''Roe'' on its own terms."
Richard Epstein Richard Allen Epstein (born April 17, 1943) is an American legal scholar known for his writings on torts, contracts, property rights, law and economics, classical liberalism, and libertarianism. He is the Laurence A. Tisch Professor of Law at N ...
thought that the majority opinion relied on a book written by William Lloyd Prosser about
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
law when it stated that it "is said" recovery of
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
was allowed "only if the fetus was viable, or at least quick, when the injuries were sustained". He compared this to what was in fact written in the book, which was that "when actually faced with the issue for decision, almost all of the jurisdictions have allowed recovery even though the injury occurred during the early weeks of pregnancy, when the child was neither viable nor quick." Pro-life advocate
Matt Bruenig Matthew Bruenig (born November 22, 1988) is an American lawyer, blogger, policy analyst, commentator, and founder of the left-leaning think tank People's Policy Project. He was a blogger for the American think tank Demos covering politics and pub ...
, lawyer and founder of the
People's Policy Project People's Policy Project (abbreviated 3P) is an American think tank focused on social, economic, and political equity issues. It has been described as "left-leaning", "left-wing", "democratic socialist-leaning", and " socialist". The organization ...
, criticized ''Roe'' as being "weaker than normal" and observed that similarly broad interpretations of the Constitution could be used to argue the opposite outcome, saying "right now we have a constitutional right to an abortion—you could also constitutionally ban abortion. If you wanted to, someone could bring a case, file it in a district court, hit the appeal button twice, and then if you get five judges together, the opinion would be the easiest thing in the world to write. You would say, 'the Fourteenth Amendment protects the right to life, liberty, and property without due process and all that shit. So we're looking at that, and we think that abortion takes a life and so we think that in fact states may not permit abortion'. So you could constitutionally ban it and say that no state or federal government is allowed to legalize abortion". The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the ruling. The "viability" criterion was still in effect, although the point of viability changed as medical science found ways to help premature babies survive.


Later responses by those involved


Harry Blackmun

Justice Blackmun, who authored the ''Roe'' decision, subsequently had mixed feelings about his role in the case. During a 1974 television interview, he stated that ''Roe'' "will be regarded as one of the worst mistakes in the court's history or one of its great decisions, a turning point."Legalized abortion a decade later
''Santa Cruz Sentinel'', Volume 127, Number 13, January 16, 1983
In a 1983 interview for a newspaper journalist, he responded that he was "mildly annoyed at those, law professors included, who personalize it" because "it was a decision of the court, not my decision. There were seven votes." As a Methodist, he felt hurt that Methodist pastors wrote condemning letters to him, but as time passed, the letters did not hurt "as much anymore". In defense he responded, "People misunderstand. I am not for abortion. I hope my family never has to face such a decision", noting that "I still think it was a correct decision" because "we were deciding a constitutional issue, not a moral one."
''New York Times'', January 18, 1983, Section A, Page 20
He described ''Roe'' as "a no-win case" and predicted that, "fifty years from now, depending on the fate of the proposed constitutional amendment, abortion probably will not be as great a legal issue. I think it will continue to be a moral issue, however." He reflected that his role in the decision meant he was most known as the "author of the abortion decision". His response was that "we all pick up tags. I'll carry this one to my grave" and "so be it". In 1987, Justice Blackmun explained in a letter to Chief Justice Rehnquist:
I remember that the old Chief appointed a screening committee, chaired by Potter, to select those cases that could (it was assumed) be adequately heard by a Court of seven. I was on that little committee. We did not do a good job. Potter pressed for ''Roe v. Wade'' and ''Doe v. Bolton'' to be heard and did so in the misapprehension that they involved nothing more than an application of ''Younger v. Harris''. How wrong we were.
In 1991, he regretted how the Court decided to hear ''Roe'' and ''Doe'' in a televised interview: "It was a serious mistake... We did a poor job. I think the committee should have deferred them until we had a full Court.", also se
Book Review: 'Abuse of Discretion' by Clarke D. Forsythe
by Jeffrey Rosen, ''Wall Street Journal'', October 11, 2013
In 1992, he stood by the analytical framework he established in ''Roe'' during the subsequent ''Casey'' case.''Casey'', 505 U.S. at 930–34 (Blackmun, J., concurring in part and dissenting in part) ("In sum, ''Roe'''s requirement of strict scrutiny as implemented through a trimester framework should not be disturbed."). He often gave speeches and lectures promoting ''Roe v. Wade'' and criticizing ''Roe''s critics.


Norma McCorvey

Norma McCorvey would later claim that, during the 1970s although some years after ''Roe'', she had a nightmare concerning "little babies lying around with daggers in their hearts". This was the first of a series of recurring
nightmare A nightmare, also known as a bad dream, Retrieved 11 July 2016. is an unpleasant dream that can cause a strong emotional response from the mind, typically fear but also despair, anxiety or great sadness. The dream may contain situations of ...
s which kept her awake at night.Won by Love: Norma McCorvey, Jane Roe of Roe v. Wade, Speaks Out for the Unborn as She Shares Her New Conviction For Life
by Norma McCorvey and Gary Thomas, Nashville, Tennessee: Thomas Nelson, 1997, Chapter 5, The Shadow Plaintiff pages 38–39
She became worried and wondered, "What really, had I done?"Won by Love: Norma McCorvey, Jane Roe of Roe v. Wade, Speaks Out for the Unborn as She Shares Her New Conviction For Life
by Norma McCorvey and Gary Thomas, Nashville, Tennessee: Thomas Nelson, 1997, Chapter 5, The Shadow Plaintiff pages 38
and "Well, how do they kill a baby inside a mother's stomach anyway?" McCorvey later reflected:Won by Love: Norma McCorvey, Jane Roe of Roe v. Wade, Speaks Out for the Unborn as She Shares Her New Conviction For Life
by Norma McCorvey and Gary Thomas, Nashville, Tennessee: Thomas Nelson, 1997, Chapter 5, The Shadow Plaintiff pages 39
I couldn't get the thought out of my mind. I realize it sounds very naïve, especially for a woman who had already conceived and delivered three children. Though I had seen and experienced more than my share of the world, there were some things about which I still didn't have a clue—and this was one of them. Ironically enough, Jane Roe may have known less about abortion than anyone else.
During the years after ''Roe'', although not immediately, McCorvey joined with and accompanied others in the abortion rights movement. During this time, McCorvey stated that she had publicly lied about being raped and apologized for making the false rape claim. Norma McCorvey became part of the movement against abortion from 1995 until shortly before her death in 2017. In 1998, she testified to Congress: In 2002, along with Sandra Cano (Mary Doe) from ''Doe v. Bolton'' and Bernard Nathanson, a co-founder of NARAL Pro-Choice America, McCorvey appeared in a television advertisement intended to get the Bush administration to nominate members to the Supreme Court who would oppose abortion. As a party to the original litigation, she sought to reopen the case in U.S. District Court in Texas to have ''Roe v. Wade'' overturned. However, the
Fifth Circuit The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a federal court with appellate jurisdiction over the district courts in the following federal judicial districts: * Eastern District of Louisiana * Mi ...
decided that her case was moot, in '' McCorvey v. Hill''. In a concurring opinion, Judge
Edith Jones Edith Hollan Jones (born April 7, 1949) is a United States circuit judge and the former chief judge of the United States Court of Appeals for the Fifth Circuit. Jones was nominated by President Ronald Reagan on February 27, 1985, to a new seat ...
agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development. However, Jones said she was compelled to agree that the case was moot. On February 22, 2005, the Supreme Court refused to grant a
writ of certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
, and McCorvey's appeal ended. In an interview shortly before her death, McCorvey stated that she had taken an anti-abortion position because she had been paid to do so and that her campaign against abortion had been an act. She also stated that it did not matter to her if women wanted to have an abortion and they should be free to choose. Rob Schenck, a
Methodist Methodism, also called the Methodist movement, is a group of historically related denominations of Protestant Christianity whose origins, doctrine and practice derive from the life and teachings of John Wesley. George Whitefield and John's ...
pastor and activist who once had anti-abortion views stated that he and others helped entice McCorvey to claim she changed sides and also stated that what they had done with her was "highly unethical" and he had "profound regret" over the matter.
Frank Pavone Frank Anthony Pavone (born February 4, 1959) is an American anti-abortion activist and laicized Catholic priest. He is the national director of Priests for Life (PFL) and the chairman and pastoral director of its Rachel's Vineyard project. He ...
, a priest with whom McCorvey talked to after the interview, reflected after her death that "There was no indication whatsoever, at the end of her life" that she had given up her pro-life positions. Pavone stated that following the interview, McCorvey talked positively with him about a message she wanted him to convey at the next March for Life. The message concerned encouraging young people to oppose abortion.


Sarah Weddington

After arguing in ''Roe v. Wade'' at the age of 26, Sarah Weddington was elected to the
Texas House of Representatives The Texas House of Representatives is the lower house of the bicameral Texas Legislature. It consists of 150 members who are elected from single-member districts for two-year terms. As of the 2010 United States census, each member represents abo ...
for three terms. Weddington also was
general counsel A general counsel, also known as chief counsel or chief legal officer (CLO), is the chief in-house lawyer for a company or a governmental department. In a company, the person holding the position typically reports directly to the CEO, and their ...
for the
U.S. Department of Agriculture The United States Department of Agriculture (USDA) is the federal executive department responsible for developing and executing federal laws related to farming, forestry, rural economic development, and food. It aims to meet the needs of comme ...
, an assistant to President
Jimmy Carter James Earl Carter Jr. (born October 1, 1924) is an American politician who served as the 39th president of the United States from 1977 to 1981. A member of the Democratic Party (United States), Democratic Party, he previously served as th ...
, lecturer at the
Texas Wesleyan University School of Law Texas A&M University School of Law is an ABA-accredited law school located in downtown Fort Worth, Texas. It was formerly part of Texas Wesleyan University until it was acquired by Texas A&M University. The law school is a member of the Associat ...
, and speaker and
adjunct professor An adjunct professor is a type of academic appointment in higher education who does not work at the establishment full-time. The terms of this appointment and the job security of the tenure vary in different parts of the world, however the genera ...
at the
University of Texas at Austin The University of Texas at Austin (UT Austin, UT, or Texas) is a public research university in Austin, Texas. It was founded in 1883 and is the oldest institution in the University of Texas System. With 40,916 undergraduate students, 11,075 ...
.Winning Roe v. Wade: Q&A with Sarah Weddington
by Valerie Lapinski, ''Time'' (January 22, 2013)
In a 1993 speech for the Institute for Educational Ethics in Oklahoma, Weddington discussed her conduct during ''Roe'' and stated, "My conduct may not have been totally
ethical Ethics or moral philosophy is a branch of philosophy that "involves systematizing, defending, and recommending concepts of right and wrong behavior".''Internet Encyclopedia of Philosophy'' The field of ethics, along with aesthetics, concerns ma ...
. But I did it for what I thought were good reasons." In 1998, she said that the lack of doctors to abort fetuses could undermine ''Roe'': "When I look back on the decision, I thought these words had been written in granite. But I've learned it was not granite. It was more like sandstone. The immediate problem is, where will the doctors come from?" Weddington died on December 26, 2021.


Subsequent judicial developments

''Roe'' is embedded in a long line of cases concerning personal liberty in the realm of privacy, since ''Roe'' was based on individual liberty cases concerning privacy like '' Meyer v. Nebraska'' (1923), '' Griswold v. Connecticut'' (1965), '' Loving v. Virginia'' (1967) and '' Eisenstadt v. Baird'' (1972) and became a foundation for individual liberty cases concerning privacy like ''
Lawrence v. Texas ''Lawrence v. Texas'', 539 U.S. 558 (2003), is a landmark decision of the U.S. Supreme Court in which the Court ruled that most sanctions of criminal punishment for consensual, adult non- procreative sexual activity (commonly referred to as sod ...
'' (2003) and '' Obergefell v. Hodges'' (2015). Two months after the decision in ''Roe'', the Court issued a ruling about school funding in ''
San Antonio Independent School District v. Rodriguez ''San Antonio Independent School District v. Rodriguez'', 411 U.S. 1 (1973), was a case in which the Supreme Court of the United States held that San Antonio Independent School District's financing system, which was based on local property taxes, w ...
''. The majority opinion cited ''Roe v. Wade'' to assert that privacy itself was a fundamental right, while procreation implicitly counted as "among the rights of personal privacy protected under the Constitution."''San Antonio Independent School District v. Rodriguez'' 411 U.S. 1 (1973)
at 33 and footnote 76, ''justia.com''
In his dissenting opinion, Justice Thurgood Marshall stated that ''Roe v. Wade'' "reaffirmed its initial decision in '' Buck v. Bell''", and noted where ''Buck'' was cited in ''Roe''.''San Antonio Independent School District v. Rodriguez'' 411 U.S. 1 (1973)
at 101 (Marshall, J., dissenting), ''justia.com''
He found ''Roe'' to be a continuation of the Court's practice of granting only a limited stature to the right to procreate, since the Court's decision treated procreation as less important than the right to privacy. He observed that although past decisions showed strong concern against the state discriminating against certain groups concerning procreation and certain other rights, the "Court has never said or indicated that these are interests which independently enjoy full-blown constitutional protection."''San Antonio Independent School District v. Rodriguez'' 411 U.S. 1 (1973)
at 100 (Marshall, J., dissenting), ''justia.com''
Instead, in ''Roe'', "the importance of procreation has indeed been explained on the basis of its intimate relationship with the constitutional right of privacy..." Justice Marshall thought that the method used in ''Rodriguez'' for determining which rights were more fundamental was wrong, and proposed a different method which would result in procreation receiving greater legal protection.''San Antonio Independent School District v. Rodriguez'' 411 U.S. 1 (1973)
at 102–103 (Marshall, J., dissenting), ''justia.com''
The legal interaction between ''Roe v Wade'', the Fourteenth Amendment as understood post-''Roe'', and changing medical technology and standards caused the development of civil suits for
wrongful birth Wrongful birth is a legal cause of action in some common law countries in which the ''parents'' of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious gen ...
and
wrongful life Wrongful life is the name given to a cause of action in which someone is sued by a severely disabled child (through the child's legal guardian) for failing to prevent the child's birth. Typically, a child and the child's parents will sue a doctor ...
claims. Not all states permit a parent to sue for wrongful birth or a child to sue for wrongful life. The constitutionality of wrongful life claims is controversial within the
legal profession Legal profession is a profession in which legal professionals study, develop and apply law. Usually, there is a requirement for someone choosing a career in law to first obtain a law degree or some other form of legal education. It is difficult to ...
, even for states which currently allow them. Pre-''Roe'', a state court dismissed a lawsuit making both a wrongful birth and life claim, which was unsuccessfully appealed to the
Supreme Court of New Jersey The Supreme Court of New Jersey is the highest court in the U.S. state of New Jersey. In its current form, the Supreme Court of New Jersey is the final judicial authority on all cases in the state court system, including cases challenging th ...
. Prior to ''Roe'', the Chancery Division of the Superior Court of New Jersey found that a pregnant
Jehovah's Witness Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The group reports a worldwide membership of approximately 8.7 million adherents involved in ...
woman could be ordered to submit to lifesaving
blood transfusion Blood transfusion is the process of transferring blood products into a person's circulation intravenously. Transfusions are used for various medical conditions to replace lost components of the blood. Early transfusions used whole blood, but mo ...
s due to the state's compelling interest "to save her life and the life of her unborn child."''Raleigh Fitkin-Paul Morgan Mem. Hosp. v. Anderson'' 42 N.J. 421 (1964)
''justia.com''.
The Court appointed a
legal guardian A legal guardian is a person who has been appointed by a court or otherwise has the legal authority (and the corresponding duty) to make decisions relevant to the personal and property interests of another person who is deemed incompetent, call ...
to represent the unborn child, and ordered the guardian to consent to blood transfusions and to "seek such other relief as may be necessary to preserve the lives of the mother and the child". After ''Roe'', the Fifth District Appellate Court in Illinois ruled that medical professionals had wrongly transfused blood into a pregnant Jehovah's Witness woman on the basis from ''Roe'' that the "state's important and legitimate interest becomes compelling at viability" and her fetus was not yet viable. President Reagan, who supported legislative restrictions on abortion, began making federal judicial appointments in 1981. Reagan denied that there was any
litmus test Litmus test may refer to: * Litmus test (chemistry), used to determine the acidity of a chemical solution * Litmus test (politics), a question that seeks to find the character of a potential candidate by measuring a single indicator * Litmus Test ...
: "I have never given a litmus test to anyone that I have appointed to the bench... . I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We've had too many examples in recent years of courts and judges legislating." In addition to Justices White and Rehnquist, Reagan-appointee Justice
Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...
began dissenting from the Court's abortion cases, arguing in 1983 that the trimester-based analysis devised by the ''Roe'' Court was "unworkable." Shortly before his retirement, Chief Justice Warren Burger suggested in 1986 that ''Roe'' be "reexamined";. the associate justice who filled Burger's place on the Court—Justice
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
—vigorously opposed ''Roe''. Concern about overturning ''Roe'' played a major role in the defeat of Robert Bork's nomination to the Court in 1987; the man eventually appointed to replace ''Roe''-supporter Justice Lewis Powell was Justice
Anthony Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...
. The justices voting in the majority on the
Federal Constitutional Court The Federal Constitutional Court (german: link=no, Bundesverfassungsgericht ; abbreviated: ) is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law () of Germany. Since its in ...
in pre-unification
West Germany West Germany is the colloquial term used to indicate the Federal Republic of Germany (FRG; german: Bundesrepublik Deutschland , BRD) between its formation on 23 May 1949 and the German reunification through the accession of East Germany on 3 ...
rejected the trimester framework in the ''
German Constitutional Court abortion decision, 1975 BVerfGE 39,1 — Abortion I (german: BVerfGE 39,1 — Schwangerschaftsabbruch I) was a decision of the Federal Constitutional Court of Germany, addressing the issue of abortion Abortion is the termination of a pregnancy by removal or e ...
'' on the basis that development during pregnancy is a continuous whole rather than made up of three trimesters. The Court found that the right to life extends also to the unborn and that life begins on the fourteenth day after conception. It also found that the liberties of pregnant mothers were qualified by the existence of another life inside them. The Court found that "A compromise which guarantees the protection of the life of the one about to be born and permits the pregnant woman the freedom of abortion is not possible since the interruption of pregnancy always means the destruction of the unborn life." It ruled that the fetus must be protected, and the first responsibility for this lies with the mother, with a second responsibility in the hands of the
legislature A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known ...
. The Court allowed for a balancing of rights between the mother and unborn child, but required that the rights of each be considered within a framework which acknowledged the supreme, fundamental value of human life. Legislation allowing abortion could be constitutional if the rights of the unborn persons were acknowledged in this manner. Two minority justices in the ruling for the German Constitutional Court abortion decision in 1975 remarked that "the Supreme Court of the United States has even regarded punishment for the interruption of pregnancy, performed by a physician with the consent of the pregnant woman in the first third of pregnancy, as a violation of fundamental rights. This would, according to German constitutional law, go too far indeed." In 1988, the
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
used the rulings in both ''Roe'' and ''Doe v. Bolton'' as grounds to find Canada's federal law limiting abortions to certified hospitals unconstitutional in '' R. v. Morgentaler''.


''Planned Parenthood v. Danforth''

In '' Planned Parenthood v. Danforth'', 428 U.S. 52 (1976), the plaintiffs challenged a Missouri statute which regulated abortion. In the regulations for abortions on demand, the state required prior written consent from a parent if the patient was a minor or a spouse if the patient was married. For pregnancies at 12 weeks and later, the statute also banned saline abortions, in which chemicals are injected into the
amniotic sac The amniotic sac, also called the bag of waters or the membranes, is the sac in which the embryo and later fetus develops in amniotes. It is a thin but tough transparent pair of membranes that hold a developing embryo (and later fetus) until sh ...
to burn the fetus. The portions of the statute involving parental or spousal consent and prohibiting saline abortions were struck down.


''Floyd v. Anders''

In ''Floyd v. Anders'', 440 F. Supp. 535 (D.S.C. 1977), South Carolina attempted to prosecute a doctor for illegal abortion and murder after he attempted to abort an African American boy at 25 weeks. During the abortion, the boy was born alive and survived for 20 days before dying. His prosecution was blocked by Judge
Clement Haynsworth Clement Furman Haynsworth Jr. (October 30, 1912 – November 22, 1989) was a United States circuit judge of the United States Court of Appeals for the Fourth Circuit. He was also an unsuccessful nominee for the United States Supreme Court in 19 ...
, and shortly afterwards by a unanimous three judge panel for the U.S. District Court for the District of South Carolina. Judge Haynsworth, writing for the panel, stated "Indeed, the Supreme Court declared the fetus in the womb is neither alive nor a person within the meaning of the Fourteenth Amendment." John T. Noonan criticized this from an anti-abortion perspective, stating that "Judge Haynsworth had replaced the Supreme Court's test of potential ability to live with a new test of actual ability to live indefinitely. He also had spelled out what was implied in ''Roe v. Wade'' but never actually stated there. For the American legal systems the fetus in the womb was not alive." The standard in ''Roe'' for viability outside the womb required a "capability of meaningful life".''Roe'', 410 U.S.
at 163; "Early death as a management option" became a medical practice for disabled infants; the practice was legally defended under the right to privacy. Early death for infants was considered "a late abortion" but became regulated by the
Baby Doe Law The Baby Doe Law or Baby Doe Amendment is an amendment to the Child Abuse Prevention and Treatment Act of 1974, passed in 1984, that sets forth specific criteria and guidelines for the treatment of disabled newborns in the United States, regardles ...
. Se
To be liberal and pro-life; Nat Hentoff, Champion of 'Inconvenient Life'
by Cathryn Donohoe, ''Washington Times'', November 6, 1989 which discusses the journalism of
Nat Hentoff Nathan Irving Hentoff (June 10, 1925 – January 7, 2017) was an American historian, novelist, jazz and country music critic, and syndicated columnist for United Media. Hentoff was a columnist for ''The Village Voice'' from 1958 to 2009. Fo ...
.
Without this capability, the state had no compelling "important and legitimate interest in potential life".


''Webster v. Reproductive Health Services''

In a 5–4 decision in 1989's '' Webster v. Reproductive Health Services'', Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule ''Roe'', because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution." In particular, the Court found that the ability to have a nontherapeutic abortion was not an affirmative right of the sort that required the state to pay for it.. In this case, the Court upheld several abortion restrictions, and modified the ''Roe'' trimester framework. In concurring opinions, Justice O'Connor refused to reconsider ''Roe'', and Justice Antonin Scalia criticized the Court and Justice O'Connor for not overruling ''Roe''. Justice Blackmun stated in his dissent that Justices White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their plurality opinion " foments disregard for the law." White had recently opined that the majority reasoning in ''Roe v. Wade'' was "warped."


''Planned Parenthood v. Casey''

During initial deliberations for ''
Planned Parenthood v. Casey ''Planned Parenthood v. Casey'', 505 U.S. 833 (1992), was a landmark case of the Supreme Court of the United States in which the Court upheld the right to have an abortion as established by the "essential holding" of ''Roe v. Wade'' (1973) and is ...
'' (1992), an initial majority of five justices (Rehnquist, White, Scalia, Kennedy, and
Thomas Thomas may refer to: People * List of people with given name Thomas * Thomas (name) * Thomas (surname) * Saint Thomas (disambiguation) * Thomas Aquinas (1225–1274) Italian Dominican friar, philosopher, and Doctor of the Church * Thomas the A ...
) were willing to effectively overturn ''Roe''. Justice Kennedy changed his mind after the initial conference, and Justices O'Connor, Kennedy, and Souter joined Justices Blackmun and Stevens to reaffirm the central holding of ''Roe'', but instead of justifying the liberty to abort as being based on privacy as in ''Roe'', it justified the liberty in a broader manner. The opinion asserted an individual's liberty to choose concerning family life and also protection from legal enforcement intended to maintain traditional sex roles, writing, "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education...." and against the state insisting "upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society." The plurality of justices stated that abortion-related legislation should be reviewed based on the
undue burden standard The undue burden standard is a constitutional test fashioned by the Supreme Court of the United States. The test, first developed in the late 20th century, is widely used in American constitutional law. In short, the undue burden standard states ...
instead of the strict scrutiny standard from ''Roe''. The plurality also found that a fetus was now viable at 23 or 24 weeks rather than at the 28 week line from 1973. They also felt that fetal viability was "more workable" than the trimester framework. They abandoned the trimester framework due to two basic flaws: "in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in ''Roe''." Only Justice Blackmun wanted to retain ''Roe'' entirely and issue a decision completely in favor of
Planned Parenthood The Planned Parenthood Federation of America, Inc. (PPFA), or simply Planned Parenthood, is a nonprofit organization that provides reproductive health care in the United States and globally. It is a tax-exempt corporation under Internal Reve ...
. Prior to this, he had considered a Pennsylvania viability-based law to be unconstitutionally vague in his majority opinion for ''
Colautti v. Franklin ''Colautti v. Franklin'', 439 U.S. 379 (1979), was a United States Supreme Court abortion rights case, which held void for vagueness part of Pennsylvania's 1974 Abortion Control Act. The section in question was the following: (a) Every person w ...
''. Justice Scalia's dissent asserted that abortion is not a liberty protected by the Constitution for the same reason
bigamy In cultures where monogamy is mandated, bigamy is the act of entering into a marriage with one person while still legally married to another. A legal or de facto separation of the couple does not alter their marital status as married persons. ...
was not protected either: because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally
proscribed Proscription ( la, proscriptio) is, in current usage, a 'decree of condemnation to death or banishment' ('' Oxford English Dictionary'') and can be used in a political context to refer to state-approved murder or banishment. The term originate ...
. He also asked:
Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.


''Stenberg v. Carhart''

During the 1990s,
Nebraska Nebraska () is a state in the Midwestern region of the United States. It is bordered by South Dakota to the north; Iowa to the east and Missouri to the southeast, both across the Missouri River; Kansas to the south; Colorado to the sout ...
enacted a law banning partial-birth abortion. The law allowed another second-trimester abortion procedure known as
dilation and evacuation Dilation and evacuation (D&E) is the dilation of the cervix and surgical evacuation of the uterus (potentially including the fetus, placenta and other tissue) after the first trimester of pregnancy. It is a method of abortion as well as a common ...
. In 2000, the Supreme Court struck down the law by a 5–4 vote in ''
Stenberg v. Carhart ''Stenberg v. Carhart'', 530 U.S. 914 (2000), was a landmark decision of the US Supreme Court dealing with a Nebraska law which made performing " partial-birth abortion" illegal, without regard for the health of the mother. Nebraska physicians wh ...
'', with Justice
Stephen Breyer Stephen Gerald Breyer ( ; born August 15, 1938) is a retired American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and rep ...
writing for the majority that sometimes partial-birth abortion "would be the safest procedure". Justice O'Connor wrote a concurrence stating Nebraska was actually banning both abortion methods. Justices Ginsburg and Stevens joined each other's concurrences. Justice Stevens stated that "the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other... is simply irrational." Justice Ginsburg stated that the "law does not save any fetus from destruction, for it targets only 'a method of performing abortion'." Justice Thomas's dissent stated, "The 'partial birth' gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body." Justice Scalia joined Justice Thomas's dissent and also wrote his own, stating that partial-birth abortion is "so horrible that the most clinical description of it evokes a shudder of revulsion" and that this case proved ''Casey'' was "unworkable". Chief Justice Rehnquist joined the two dissents by Justices Scalia and Thomas. Justice Kennedy, who had co-authored ''Casey'', dissented in ''Stenberg''. He described in graphic detail exactly how a fetus dies while being
dismembered Dismemberment is the act of cutting, ripping, tearing, pulling, wrenching or otherwise disconnecting the limbs from a living or dead being. It has been practiced upon human beings as a form of capital punishment, especially in connection with ...
during a dilation and evacuation procedure. He reasoned that since Nebraska was not seeking to prohibit it, the state was free to ban partial-birth abortion. ("The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off.").


''Gonzales v. Carhart''

In 2003, Congress passed the
Partial-Birth Abortion Ban Act The Partial-Birth Abortion Ban Act of 2003 (, ,
''(HTML)''; *
, which led to a lawsuit in the case of '' Gonzales v. Carhart''. The Court previously ruled in ''Stenberg v. Carhart'' that a state's ban on partial-birth abortion was unconstitutional because such a ban did not have an exception for the health of the woman. The membership of the Court changed after ''Stenberg'', with Chief Justice
John Roberts John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including '' Nat ...
and Justice
Samuel Alito Samuel Anthony Alito Jr. ( ; born April 1, 1950) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George W. Bush on October 31, 2005, and has serve ...
replacing Chief Justice Rehnquist and Justice O'Connor. The ban at issue in ''Gonzales v. Carhart'' was similar to the one in ''Stenberg'', but had been adjusted to comply with the Court's ruling. On April 18, 2007, a 5 to 4 decision upheld the constitutionality of the Partial-Birth Abortion Ban Act. Justice Kennedy wrote the majority opinion that Congress was within its power to ban partial-birth abortion. The Court left the door open for as-applied challenges. The opinion did not address whether ''Casey'' remained valid. Instead it only assumed ''Casey'' was valid "for the purposes of this opinion". Chief Justice John Roberts and Justices Scalia, Thomas, and Alito joined the majority. Justice Thomas filed a concurring opinion, joined by Justice Scalia, contending that the Court's prior decisions in ''Roe v. Wade'' and ''Planned Parenthood v. Casey'' should be reversed. They also noted that the Partial-Birth Abortion Ban Act may have exceeded the powers of Congress under the
Commerce Clause The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...
but that the question was not raised. Justice Ginsburg, joined by Justices Stevens,
Souter Souter (, ) is a Scottish surname derived from the Scots language term for a shoemaker, and may refer to: * A nickname for any native inhabitant of the Royal Burgh of Selkirk, in the Scottish Borders * Alexander Souter (1873–1949), Scottish bib ...
, and Breyer, dissented, contending that the ruling ignored precedent and that abortion rights should instead be justified by equality.


''Dubay v. Wells''

'' Dubay v. Wells'' was a 2006 paternity case where a man argued he should not have to pay
child support Child support (or child maintenance) is an ongoing, periodic payment made by a parent for the financial benefit of a child (or parent, caregiver, guardian) following the end of a marriage or other similar relationship. Child maintenance is paid d ...
for a child he did not want to parent. The case was billed as "''Roe v. Wade'' for men". On March 9, 2006, Dubay filed a lawsuit before the
United States District Court for the Eastern District of Michigan The United States District Court for the Eastern District of Michigan (in case citations, E.D. Mich.) is the federal district court with jurisdiction over of the eastern half of the Lower Peninsula of the State of Michigan. The Court is based ...
. Michigan's Attorney General, Joel D. McGormley, made a motion to have the case dismissed. On July 17, 2006, District Court Judge David Lawson agreed and dismissed Dubay's lawsuit. He appealed it once, to the
United States Court of Appeals for the Sixth Circuit The United States Court of Appeals for the Sixth Circuit (in case citations, 6th Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts: * Eastern District of Kentucky * Western District of ...
, which also dismissed it, and stated:
Dubay's claim that a man's right to disclaim fatherhood would be analogous to a woman's right to abortion rests upon a false analogy. In the case of a father seeking to opt out of fatherhood and thereby avoid child support obligations, the child is already in existence and the state therefore has an important interest in providing for his or her support.


''Whole Woman's Health v. Hellerstedt''

In 2013, the Texas legislature enacted restrictions which required abortion doctors to have
admitting privileges An admitting privilege is the right of a doctor to admit patients to a hospital for medical treatment without first having to go through an emergency department. This is generally restricted to doctors on the hospital staff, although in some count ...
at a local hospital and required abortion clinics to have facilities equivalent to others which conducted
outpatient surgery Outpatient surgery, also known as ambulatory surgery, day surgery, day case surgery, or same-day surgery, is surgery that does not require an overnight hospital stay.The International Association for Ambulatory Surgery (IAAS) would not consider a ...
. On June 27, 2016, the Supreme Court in a 5–3 decision for ''
Whole Woman's Health v. Hellerstedt ''Whole Woman's Health v. Hellerstedt'', 579 U.S. 582 (2016), was a landmark decision of the US Supreme Court decided on June 27, 2016. The Court ruled 5–3 that Texas cannot place restrictions on the delivery of abortion services that create an ...
'' struck down these restrictions.Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016)
''justia.com''
The majority opinion by Justice Breyer struck down these two provisions of Texas law in a
facial A facial is a family of skin care treatments for the face, including steam, exfoliation (physical and chemical), extraction, creams, lotions, facial masks, peels, and massage. They are normally performed in beauty salons, but are also a comm ...
manner—that is, the very words of the provisions were invalid, no matter how they might be applied in any practical situation. The ruling also stated that the task of judging whether a law puts an undue burden on a woman's right to abortion belongs with the courts and not the legislatures.


''Box v. Planned Parenthood''

In 2016, Indiana passed House Bill 1337, enacting a law which regulated what is done with fetal remains and banning abortion for sexist, racist, or
ableist Ableism (; also known as ablism, disablism (British English), anapirophobia, anapirism, and disability discrimination) is discrimination and social prejudice against people with disabilities or who are perceived to be disabled. Ableism characteri ...
purposes. In its unsigned 2019 ruling for ''
Box v. Planned Parenthood of Indiana and Kentucky, Inc. ''Box v. Planned Parenthood of Indiana and Kentucky, Inc.'', No. 18-483, 587 U.S. ___, 139 S.Ct. 1780 (2019), was a United States Supreme Court case dealing with the constitutionality of a 2016 anti-abortion law passed in the state of Indiana. In ...
'', the U.S. Supreme Court upheld the regulations about fetal remains, but declined to hear the remainder of the law, which had been blocked by lower courts. Justice Ginsburg dissented from the part of the ruling about fetal remains on the basis that the regulations violated ''Casey''. She also criticized Justice Thomas over his use of the word "mother" in his concurrance. Justice Sotomayor stated that she wished the Court would not have heard the case at all. Justice Thomas wrote a concurring opinion which expressed concern that the theory presented in ''
Freakonomics ''Freakonomics: A Rogue Economist Explores the Hidden Side of Everything'' is the debut non-fiction book by University of Chicago economist Steven Levitt and ''New York Times'' journalist Stephen J. Dubner. Published on April 12, 2005, by Will ...
'' echoed the views of the
eugenics Eugenics ( ; ) is a fringe set of beliefs and practices that aim to improve the genetic quality of a human population. Historically, eugenicists have attempted to alter human gene pools by excluding people and groups judged to be inferior o ...
movement. He warned that "a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement". He predicted, "Although the Court declines to wade into these issues today, we cannot avoid them forever."


''Whole Woman's Health v. Jackson''

In 2021, the state of Texas devised a legal workaround to ''Roe'' that allowed it to successfully outlaw abortion at six weeks of pregnancy despite the continued existence of ''Roe'' and ''Casey''. In the
Texas Heartbeat Act The Texas Heartbeat Act, Senate Bill 8 (SB 8), is an act of the Texas Legislature that bans abortion after the detection of embryonic or fetal cardiac activity, which normally occurs after about six weeks of pregnancy. The law took effect ...
, the legislature created a novel enforcement mechanism that bars state officials from enforcing the statute and authorizes private individuals to sue anyone who performs or assists an illegal abortion. Because the Act is enforced by private citizens rather than government officials, there are no state officials that abortion providers can sue to stop the enforcement of the law, and they cannot obtain judicial relief that will stop private lawsuits from being initiated against them. This has produced an end-run around ''Roe'' because the threat of private civil-enforcement lawsuits has forced abortion providers to comply with the Act despite its incompatibility with the Supreme Court's abortion pronouncements. Other states have copied this enforcement mechanism to sidestep ''Roe'' and immunize their anti-abortion statutes from judicial review. This maneuver has weakened ''Roe'' and undercut the federal judiciary’s ability to protect abortion rights from state legislation.


''Dobbs v. Jackson Women's Health Organization''

''
Dobbs v. Jackson Women's Health Organization ''Dobbs v. Jackson Women's Health Organization'', , is a landmark decision of the U.S. Supreme Court in which the court held that the Constitution of the United States does not confer a right to abortion. The court's decision overruled both ''Ro ...
'' is a case that was a legal challenge to Mississippi's 2018 Gestational Age Act, which had banned abortions after 15 weeks with exceptions only for medical emergencies or fetal abnormalities. Federal courts had
enjoined An injunction is a legal remedy, legal and equitable remedy in the form of a special court order that compels a party (law), party to do or refrain from specific acts. ("The United States courts of appeals, court of appeals ... has exclusive ju ...
the state from enforcing the law after the state's only abortion clinic,
Jackson Women's Health Organization Jackson Women's Health Organization (abbreviated JWHO and commonly known as the Pink House) was an abortion clinic located in a bright pink building in Jackson, Mississippi's Fondren neighborhood. It was the only abortion clinic in Mississippi s ...
, filed suit immediately after passage; the federal courts stated that the law violated the previously established 24-week point of viability. Mississippi asked the Supreme Court to hear the case on June 15, 2020, and the Court certified the petition on May 17, 2021, limited to the question, "Whether all pre-viability prohibitions on elective abortions are unconstitutional." The Court chose not to take up two other questions that Mississippi wanted to bring before the Court. On May 2, 2022, ''
Politico ''Politico'' (stylized in all caps), known originally as ''The Politico'', is an American, German-owned political journalism newspaper company based in Arlington County, Virginia, that covers politics and policy in the United States and intern ...
'' released a leaked first draft of a majority opinion written by Justice
Samuel Alito Samuel Anthony Alito Jr. ( ; born April 1, 1950) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George W. Bush on October 31, 2005, and has serve ...
, which had been circulated among the court in February 2022. Alito's draft wrote, "We hold that ''Roe'' and ''Casey'' must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives." The release of a draft opinion for a pending case was unprecedented in recent Supreme Court history. The document was not a final decision, and the justices were still able to change their votes. The document was thought to reflect both the justices' preliminary voting and the outcome of the internal Court procedure for deciding who is assigned to write the majority opinion. A press release from the Supreme Court confirmed the leaked document's authenticity, and Chief Justice
John Roberts John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including '' Nat ...
in a statement described its release as a "betrayal of the confidences of the Court". The leaked draft regarding the decision sparked
protests A protest (also called a demonstration, remonstration or remonstrance) is a public expression of objection, disapproval or dissent towards an idea or action, typically a political one. Protests can be thought of as acts of coopera ...
. On June 24, 2022, the Supreme Court ruled 6–3 to uphold Mississippi's Gestational Age Act, and 5–4 to overrule ''Roe'' and ''Casey''. Similar to the leaked draft opinion, the opinion of the court written by Justice Alito stated that ''Roe'' was "egregiously wrong from the start" and its reasoning "exceptionally weak". It also stated that ''Roe'' has "enflamed debate and deepened division" and that overruling it would "return the issue of abortion to the people's elected representatives". The majority opinion relied on a constitutional historical view of abortion rights, saying, "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision." The reasoning was that "abortion couldn't be constitutionally protected. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy." Some historians argued that this view is incomplete, with Leslie J. Reagan saying that Alito "speciously claims" the truth of his assertions. In their dissent, Justices
Stephen Breyer Stephen Gerald Breyer ( ; born August 15, 1938) is a retired American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and rep ...
,
Elena Kagan Elena Kagan ( ; born April 28, 1960) is an American lawyer who serves as an Associate Justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States. She was Elena Kagan Supreme Court nomination ...
, and
Sonia Sotomayor Sonia Maria Sotomayor (, ; born June 25, 1954) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 26, 2009, and has served since ...
jointly wrote, "The right ''Roe'' and ''Casey'' recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other."


Role in politics


Presidential positions

Generally, presidential opinions following ''Roe'' have been split along major party lines. The decision was opposed by Presidents
Gerald Ford Gerald Rudolph Ford Jr. ( ; born Leslie Lynch King Jr.; July 14, 1913December 26, 2006) was an American politician who served as the 38th president of the United States from 1974 to 1977. He was the only president never to have been elected ...
,
Ronald Reagan Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...
, George W. Bush, and
Donald Trump Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021. Trump graduated from the Wharton School of the University of P ...
. President George H. W. Bush also opposed ''Roe'', though he had supported abortion rights earlier in his career. President
Richard Nixon Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party, he previously served as a representative and senator from California and was ...
appointed Justices Burger, Blackmun, and Powell who voted with the majority, and Justice Rehnquist who dissented. President Nixon did not publicly comment about ''Roe v. Wade''. During his early career, President
Jimmy Carter James Earl Carter Jr. (born October 1, 1924) is an American politician who served as the 39th president of the United States from 1977 to 1981. A member of the Democratic Party (United States), Democratic Party, he previously served as th ...
supported legalizing abortion in order to save the life of a woman or in the event of birth defects, or in other extreme circumstances. As president, he thought abortion was wrong, but stated that he "accepted my obligation to enforce the ''Roe v. Wade'' Supreme Court ruling, and at the same time attempted in every way possible to minimize the number of abortions." In 2012 he reflected, "I never have believed that Jesus Christ would approve of abortions and that was one of the problems I had when I was president having to uphold ''Roe v. Wade''..." He urged the Democratic Party to take a position supporting pregnant mothers to minimize economic and social factors driving women to get abortions. He also wanted the party to take stand in favor of banning abortion except for those whose lives "are in danger or who are pregnant as a result of rape or incest." ''Roe'' was supported by Presidents
Bill Clinton William Jefferson Clinton (né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and again ...
and
Barack Obama Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party (United States), Democratic Party, Obama was the first Af ...
. In 1981, then-Senator Joe Biden voted for a constitutional amendment allowing states to overturn ''Roe v. Wade'', which he voted against the following year. In a 2007 memoir, Biden expressed an opinion that although he was "personally opposed to abortion" he did not have the "right to impose" his personal opposition onto others. In 2021, he described himself to reporters as "a strong supporter of ''Roe v. Wade''", and added, "And I under— I respect people who think that—who don't support ''Roe v. Wade''; I respect their views. I respect them—they—those who believe life begins at the moment of conception and all. I respect that. Don't agree, but I respect that. I'm not going to impose that on people."


Federal bills or laws regarding ''Roe''

Federal bills, amendments, or laws regarding ''Roe'' include the Women's Health Protection Act,
Freedom of Choice Act In United States politics, the Freedom of Choice Act was a bill which sought to codify into law for women a "fundamental right to choose to bear a child; terminate a pregnancy prior to fetal viability; or terminate a pregnancy after viability when ...
,
Partial-Birth Abortion Ban Act The Partial-Birth Abortion Ban Act of 2003 (, ,
''(HTML)''; *
,
Born-Alive Infants Protection Act The Born-Alive Infants Protection Act of 2002 ("BAIPA" , ) is an Act of Congress. It affirms legal protection to an infant born alive after a failed attempt at induced abortion. It was signed by President George W. Bush. Legislative history ...
,
Unborn Victims of Violence Act The Unborn Victims of Violence Act of 2004 (Public Law 108-212) is a United States law that recognizes an embryo or fetus in utero as a legal victim, if they are injured or killed during the commission of any of over 60 listed federal crimes of ...
,
Interstate Abortion Bill The Interstate Abortion Bills have been a series of unsuccessful bills regularly nominated in the United States Congress. Several versions of the bill were passed between February 2005 and September 2006, but did not become law. If enacted, these bi ...
,
No Taxpayer Funding for Abortion Act The No Taxpayer Funding for Abortion Act () is a bill that was introduced to the 112th Congress of the United States in the House of Representatives by Rep. Chris Smith ( R-New Jersey) and Dan Lipinski ( D-Illinois). The bill's stated purpose is " ...
,
Pain-Capable Unborn Child Protection Act The Pain-Capable Unborn Child Protection Act (also colloquially known as Micah's Law) is a congressional bill that would, in most cases, make it unlawful to perform an abortion if the estimated post-fertilization age of a fetus is 20 weeks or mor ...
,
Partial-Birth Abortion Ban Act of 1995 The Partial-Birth Abortion Ban Act was a bill introduced in the Congress of the United States in 1995 by Florida Representative Charles T. Canady which prohibited intact dilation and extraction, sometimes referred to as ''partial-birth abortion ...
, Sanctity of Human Life Act,
Sanctity of Life Act The proposed Sanctity of Life Act was a bill first introduced in the United States House of Representatives by Rep. Steve Stockman ( R- TX) on July 20, 1995, and cosponsored by Rep. Barbara Cubin (R- WY). It was reintroduced with similar text by Re ...
,
Hyde Amendment In U.S. politics, the Hyde Amendment is a legislative provision barring the use of federal funds to pay for abortion, except to save the life of the woman, or if the pregnancy arises from incest or rape. Before the Hyde Amendment took effect in ...
,
Freedom of Access to Clinic Entrances Act The Freedom of Access to Clinic Entrances Act (FACE or the Access Act, Pub. L. No. 103-259, 108 Stat. 694) (May 26, 1994, ) is a United States law that was signed by President Bill Clinton in May 1994, which prohibits the following three things ...
, and the
Baby Doe Law The Baby Doe Law or Baby Doe Amendment is an amendment to the Child Abuse Prevention and Treatment Act of 1974, passed in 1984, that sets forth specific criteria and guidelines for the treatment of disabled newborns in the United States, regardles ...
. Following the passage of the Texas Heartbeat Act and the Supreme Court's acceptance of the ''Dobbs v. Jackson Women's Health Organization'' case, and the threat the case poses to ''Roe'' in the eyes of ''Roe'' supporters, Neal Kumar Katyal, a law professor and former acting solicitor general of the United States, said that instead of abortion regulation by the judicial branch, Congress could "codify the rights two generations have taken as part of American life", and "nullify the threat to reproductive health posed by the Mississippi case." Thomas Jipping of the
Heritage Foundation The Heritage Foundation (abbreviated to Heritage) is an American conservative think tank based in Washington, D.C. that is primarily geared toward public policy. The foundation took a leading role in the conservative movement during the preside ...
wrote that the Women's Health Protection Act is unconstitutional because it regulates how state legislatures regulate abortion and abortion services rather than directly regulating abortion at the federal level. Views that the WHPA is unconstitutional or should otherwise be opposed were expressed during Senate Judiciary Committee hearings in 2014. also see the Statement of Hon. Marsha Blackburn in


State laws regarding ''Roe''

At the state level, there have been many laws about abortion. In the decade after ''Roe'', most states passed laws protecting medical workers with a
conscientious objection to abortion Conscientious objection to abortion is the right of medical staff to refuse participation in abortion for personal belief. By country Americas United States Europe Conscientious objection is granted in 22 member states of the European Uni ...
. Nine states which had legalized abortion or loosened abortion restrictions prior to ''Roe'' already had statutory protection for those who did not want to participate in or perform an abortion. As of 2011, forty-seven states and the District of Columbia had laws allowing certain people to decline to perform certain actions or provide information related to abortion or reproductive health. At the federal level, the Church Amendment of 1973 was proposed in order to protect private hospitals objecting to abortion from being deprived of funding. It first passed the Senate, 92–1, then a slightly modified version passed the House, 372–1, and the final bill which contained it passed the Senate 94–0. Justice Blackmun supported this and other regulations protecting individual physicians and entire hospitals operated by religious denominations. Some states have passed laws to maintain the legality of abortion if ''Roe v. Wade'' is overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada, and Washington. Other states have enacted so-called
trigger law A trigger law is a law that is unenforceable but may achieve enforceability if a key change in circumstances occurs. United States Abortion In the United States, thirteen states, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, N ...
s that would take effect in the event that ''Roe v. Wade'' is overturned, with the effect of outlawing abortions on the state level. Those states include Arkansas, Kentucky, Louisiana, Mississippi, North Dakota, and South Dakota.Vestal, Christine
"States probe limits of abortion policy"
Stateline.org (June 11, 2007).
Additionally, many states did not repeal pre-1973 statutes against abortion, and some of those statutes could again be in force if ''Roe'' were reversed. On April 16, 2012, Mississippi House Bill 1390 was signed into law. The law attempted to make abortion unfeasible without having to overturn ''Roe v. Wade''. Judge
Daniel Porter Jordan III Daniel Porter Jordan III (born November 20, 1964) is the Chief United States district judge of the United States District Court for the Southern District of Mississippi. Education and career Born in Fort Bragg, North Carolina, Jordan receive ...
of the
United States District Court for the Southern District of Mississippi The United States District Court for the Southern District of Mississippi (in case citations, S.D. Miss.) is a federal court in the United States Court of Appeals for the Fifth Circuit, Fifth Circuit with facilities in Gulfport, Mississippi, Gulf ...
granted an injunction against the law on July 13, 2012. On April 15, 2013, he issued another injunction which only applied to a part of the law which required the individual performing the abortions to have hospital admitting privileges. On July 29, 2014, a three-judge panel from the
U.S. Court of Appeals for the Fifth Circuit The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a federal court with appellate jurisdiction over the district courts in the following federal judicial districts: * Eastern District of Louisiana * Mi ...
upheld the injunction against part of the law, with Judge
Emilio M. Garza Emilio Miller Garza (born August 1, 1947) is a former United States circuit judge of the United States Court of Appeals for the Fifth Circuit and former United States District Judge of the United States District Court for the Western District of ...
dissenting. The ruling especially relied on a case unrelated to ''Roe'' which was decided "nearly fifty years before the right to an abortion was found in the penumbras of the Constitution". On February 18, 2015, Mississippi asked the Supreme Court to hear the case, but they declined to hear it on June 28, 2016. The
Human Life Protection Act The Human Life Protection Act, also known as House Bill 314 (HB 314) and the Alabama abortion ban, is an Alabama statute enacted on May 15, 2019, that imposes a near-total ban on abortion in the state. Set to go into effect in November 2019, ...
was signed by Alabama governor
Kay Ivey Kay Ellen Ivey (born October 15, 1944) is an American politician serving as the 54th and incumbent governor of Alabama since 2017. Originally a conservative Southern Democrat, Ivey became a member of the Republican Party in 2002. She was the 38th ...
on May 14, 2019 in hopes of challenging ''Roe v. Wade'' in the Supreme Court. It includes exceptions for a serious health risk to the mother or a
lethal Lethality (also called deadliness or perniciousness) is how capable something is of causing death. Most often it is used when referring to diseases, chemical weapons, biological weapons, or their toxic chemical components. The use of this ter ...
fetal anomaly, but otherwise it will make abortion a
felony A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that res ...
for the abortion doctor if it goes into effect. Women subjected to an abortion will not be criminally
culpable In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily has ...
or civilly
liable In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agen ...
under the law. On October 29, 2019, Judge
Myron Thompson Myron D. Thompson (April 23, 1936 – January 5, 2019) was a Conservative Member of Parliament in the House of Commons of Canada. He represented the riding of Wild Rose in Alberta. Early life and education A dual citizen of Canada and the Un ...
for the
U.S. District Court for the Northern District of Alabama The United States District Court for the Northern District of Alabama (in case citations, N.D. Ala.) is a federal court in the Eleventh Circuit (except for patent claims and claims against the U.S. government under the Tucker Act, which are ap ...
issued a preliminary injunction against the law. In May 2021, Texas lawmakers passed Senate Bill 8, creating the
Texas Heartbeat Act The Texas Heartbeat Act, Senate Bill 8 (SB 8), is an act of the Texas Legislature that bans abortion after the detection of embryonic or fetal cardiac activity, which normally occurs after about six weeks of pregnancy. The law took effect ...
, banning abortions except in cases of medical emergency as soon as a fetal heartbeat can be detected. This is typically as early as six weeks into pregnancy and often before women know they are pregnant. The law established that any Texas resident who is not a state or local government employee or official can sue
abortion clinic Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pregnan ...
s and doctors who are known to be "
aiding and abetting Aiding and abetting is a legal doctrine related to the guilt of someone who aids or abets (encourages, incites) another person in the commission of a crime (or in another's suicide). It exists in a number of different countries and generally allo ...
" abortion procedures after six weeks. A clause forbids anyone who impregnated an abortion patient through rape,
sexual assault Sexual assault is an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence, which ...
, or incest to sue concerning the patient. The
enactment Enactment may refer to: Law * Enactment of a bill, when a bill becomes law * Enacting formula, formulaic words in a bill or act which introduce its provisions * Enactment (British legal term), a piece of legislation or a legal instrument made ...
date was September 1, 2021, and the U.S. Supreme Court, in a 5–4 decision, declined a request to block enforcement of the law that day. On October 22, 2021, the Court again did not block the law's enforcement, and agreed to hear arguments for '' United States v. Texas'' on November 1, 2021. They limited the question to a review of
standing Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...
. On December 10, 2021, the Court dismissed the lawsuit on the basis that lower courts should not have accepted it. This decision allows lawsuits against the executive directors of Texas's medical, nursing, and pharmacy licensing boards and also against the executive commissioner of the
Texas Health and Human Services Commission The Texas Health and Human Services Commission (HHSC) is an agency within the Texas Health and Human Services System. In September 2016, Texas began transforming how it delivers health and human services to qualified Texans, with a goal of makin ...
, but not certain other lawsuits seeking to overturn the law.


Legacy


Effects of legalization

''Roe v. Wade'' caused a 4.5% decline in births in states that had not previously legalized abortion. According to a 2019 study, if ''Roe v. Wade'' is reversed and some states prohibit abortion on demand, the increases in travel distance are estimated to prevent at a low estimate of over 90,000 women and at a high estimate of over 140,000 women from having abortions in the year following the ruling's overturning. If ''Roe'' were to be overturned by a constitutional amendment which would apply to all the states,
fertility Fertility is the capability to produce offspring through reproduction following the onset of sexual maturity. The fertility rate is the average number of children born by a female during her lifetime and is quantified demographically. Ferti ...
could be expected to increase by 11% because then mothers would not travel to states where abortion is legal. Although the legalization of abortion in the United States increased the
labor supply In mainstream economic theories, the labour supply is the total hours (adjusted for intensity of effort) that workers wish to work at a given real wage rate. It is frequently represented graphically by a labour supply curve, which shows hypotheti ...
of fertile-aged women in the workforce, it decreased the labor supply of older women. This is thought to be due to the fact they now had fewer opportunities to financially support grandchildren. Older women whose labors became less necessary for the family's financial wellbeing either left or stayed out of the workforce. Since ''Roe'', the risk of death due to legal abortion fell considerably due to increased physician skills, improved medical technology, and earlier termination of pregnancy. Various studies have shown that overturning ''Roe'' could have adverse socio-economic conditions, higher maternal mortality, and other negative impacts. The Donohue–Levitt hypothesis about the
legalized abortion and crime effect The effect of legalized abortion on crime (also the Donohue–Levitt hypothesis) is a controversial hypothesis about the reduction in crime in the decades following the legalization of abortion. Proponents argue that the availability of abortion r ...
proposed that legalized abortion was responsible for reductions in the crime rate. If there is a relationship between abortion and crime, there are several possibilities that could explain how abortion lowers crime. One possibility is that crime is disproportionally committed by young males, and legalizing abortion reduced the number of young males. Another possibility is that children born in the post-legalization era are less likely to commit crimes. If this is the case, it might be explained in two ways. One way is that the sort of women who have abortions are not representative of pregnant women as a whole; rather they are the sort who are most likely to give birth to children who grow up to be criminals. In this way, abortion serves to shape American family structure. Studies linking demographics to crime have found that children born to American teenagers, unmarried mothers, and mothers with lower incomes are more likely to engage in criminal activity as adolescents. Abortion rates are higher for these demographics. A second possible way to explain it is that women use abortion to prevent births until they are most able to provide a stable home environment. Factors involved in stability include the age, education, income, of the mother, her use of drugs and alcohol, the presence of a father, and wanted as opposed to unwanted pregnancies. Also see ''Freakonomics'' § The impact of legalized abortion on crime Another hypothesis is the
Roe effect The Roe effect is a hypothesis about the long-term effect of abortion on the political balance of the United States, which suggests that since supporters of the legalization of abortion cause the erosion of their own political base, the practice ...
, which tries to explain why the practice of abortion would eventually lead to abortion being restricted or outlawed. The hypothesis is that people in favor of abortion rights would not parent as many children when abortion is legal, and since children tend to have similar views to their parents eventually voters would not support abortion rights.


Opinion polls

Into the 21st century, polls of Americans' opinions about abortion indicated they are about equally divided. Several organizations, among them
Gallup Gallup may refer to: * Gallup, Inc., a firm founded by George Gallup, well known for its opinion poll * Gallup (surname), a surname *Gallup, New Mexico, a city in New Mexico, United States ** Gallup station, an Amtrak train in downtown Gallup, New ...
,
Pew Research Center The Pew Research Center is a nonpartisan American think tank (referring to itself as a "fact tank") based in Washington, D.C. It provides information on social issues, public opinion, and demographic trends shaping the United States and th ...
, and
Harris Insights & Analytics The Harris Poll (legal name: Harris Insights and Analytics) is an American market research and analytics company that has been tracking the sentiment, behaviors and motivations of American adults since 1963. In addition to the traditional consulti ...
,Harris Interactive, (November 9, 2007).
Support for Roe v. Wade Increases Significantly, Reaches Highest Level in Nine Years
." Retrieved December 14, 2007.
conduct abortion or ''Roe v. Wade''-related polls. Regarding the ''Roe'' decision as a whole, more Americans supported it than supported overturning it.Results on ''Roe v. Wade''
via
Angus Reid Global Monitor Angus Reid (born December 17, 1947) is a Canadian entrepreneur, pollster, and sociologist. He is the chairman of the Angus Reid Institute and CEO and founder of Angus Reid Global. He is director of the Reid Campbell Group which operates Rival ...
(2007).
In the 2000s, when pollsters describe various regulations that ''Roe'' prevented legislatures from enacting, support for ''Roe'' dropped. Into the 2010s, poll results relating to abortion indicated nuance and frequently do not directly match up with respondents' self-identified political affiliations. In 2021, an
ABC News ABC News is the news division of the American broadcast network ABC. Its flagship program is the daily evening newscast '' ABC World News Tonight with David Muir''; other programs include morning news-talk show '' Good Morning America'', '' ...
/''
Washington Post ''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large na ...
'' poll found that 58% of those with children living at home wanted to see ''Roe v. Wade'' upheld, compared to 62% of those without children at home. An All In Together poll found that only 36% with children living in their house opposed the
Texas Heartbeat Act The Texas Heartbeat Act, Senate Bill 8 (SB 8), is an act of the Texas Legislature that bans abortion after the detection of embryonic or fetal cardiac activity, which normally occurs after about six weeks of pregnancy. The law took effect ...
, compared to 54.9% without children. After the Supreme Court's decision in June 2022 to overturn ''Roe v. Wade'', a new
CBC News CBC News is a division of the Canadian Broadcasting Corporation responsible for the news gathering and production of news programs on the corporation's English-language operations, namely CBC Television, CBC Radio, CBC News Network, and CBC.ca ...
/
YouGov YouGov is a British international Internet-based market research and data analytics firm, headquartered in the UK, with operations in Europe, North America, the Middle East and Asia-Pacific. In 2007, it acquired US company Polimetrix, and sinc ...
poll showed 59% disapprove of the decision, and of women polled, 67% disapprove. According to the same poll, 52% of the participants called the court's decision a "step backward" for America, 31% said it is a "step forward", and 17% say it was neither.


See also

* Abortion law in the United States *
Abortion law in the United States by state The legality of abortion in the United States and the various restrictions imposed on the procedure vary significantly depending on the laws of each state or other jurisdiction. Some states prohibit abortion at all stages of pregnancy with few ex ...
* Feticide § Laws in the United States * Justifiable homicide § Common excusing conditions, sixth item listed *
List of United States Supreme Court cases by the Burger Court This is a partial chronological list of cases decided by the United States Supreme Court during the Burger Court The Burger Court was the period in the history of the Supreme Court of the United States from 1969 to 1986, when Warren Burger s ...
*
List of United States Supreme Court cases, volume 410 This is a list of all the United States Supreme Court cases from volume 410 of the ''United States Reports The ''United States Reports'' () are the official record ( law reports) of the Supreme Court of the United States. They include rulings, ...
*
List of United States Supreme Court leaks The United States Supreme Court typically keeps all deliberations and draft opinions private while a case is pending. At the start of the publication process, the court releases a single slip opinion for the case. However, some instances of news ...
* ''Roe vs. Wade'' (film), released in 1989 * ''Roe v. Wade'' (film), released in 2020 * Shelley Lynn Thornton, the "''Roe'' baby"


References

Additional references * * * * * * * *


Further reading

* * * * * * *


External links

Written opinions * * * The concurring opinions of Burger and Douglas, as well as White's dissenting opinion, were issued along with ''Doe v. Bolton'' and may be found at: *
Cornell LLI
Oral arguments
Audio of oral arguments
''oyez.org'', transcripts accompany the audio

''americanrhetoric.com'', first oral argument transcript and audio
Transcript of First Oral Argument in ''Roe v. Wade'' 410 U.S. 113 (1973)
''aul.org'', edited September 2011
Transcript of Reargument in ''Roe v. Wade'', 410 U.S. 113 (1973)
''aul.org'', edited September 2011 Other court documents
Briefs and other documents

Docket records, affidavits, briefs, and other documents
Other media
"Supreme Court Landmark Case ''Roe v. Wade''"
from C-SPAN's '' Landmark Cases: Historic Supreme Court Decisions''
"The ''Roe'' Baby"
in ''The Atlantic'', September 9, 2021, by Joshua Prager. (Retrieved 9.9.2021) *
To overrule a precedent
', May 6, 2022 opinion contribution by
Paul W. Kahn Paul W. Kahn (born 1952) is the Robert W. Winner Professor of Law and the Humanities at Yale Law School and the director of the Orville H. Schell, Jr. Center for International Human Rights. Biography Kahn received his Bachelor of Arts from the ...
in
The Hill ''The'' () is a grammatical article in English, denoting persons or things already mentioned, under discussion, implied or otherwise presumed familiar to listeners, readers, or speakers. It is the definite article in English. ''The'' is the m ...
– purported truth of the law versus the rule of law argued as insufficient to reverse opinion {{US14thAmendment, dueprocess United States Supreme Court cases of the Burger Court United States abortion case law Right to abortion under the United States Constitution History of women's rights in the United States United States substantive due process case law 1973 in United States case law American Civil Liberties Union litigation United States mootness case law Judicial activism Medical lawsuits United States privacy case law Right to privacy under the United States Constitution United States Supreme Court cases Overruled United States Supreme Court decisions