THERE HAVE BEEN FEW CASES in the Supreme Court’s history that have aroused such passionate and sustained criticism as the 1973 decision holding that, as part of her right to privacy, a woman had a constitutionally protected right to secure an abortion. Nearly four decades after Justice Harry Blackmun wrote the 7–2 opinion, it is still at the center of controversies over the extent of the Court’s powers, constitutional interpretation, and judicial activism. Every nominee to the Supreme Court in the last thirty years has been questioned on his or her opinion on the case, and all of them have evaded giving a straightforward answer. Despite efforts by state legislatures to get around the holding and by conservative presidents to appoint justices willing to overrule Roe v. Wade, it remains on the books, shorthand for other issues involved in the culture wars, particularly feminism’s demand for equal rights for women.
In the late 1960s Texas, like many states, had laws prohibiting abortion that dated back to the latter part of the nineteenth century. Abortion—the inducement of a miscarriage in order to terminate a pregnancy—had been a fairly common option in most parts of the world since antiquity. The women of ancient Greece, Rome, and Egypt ate substances derived from plants such as silphium, Queen Anne’s lace, and acacia gum to end unwanted pregnancies, and those societies viewed abortion not as a crime but as a form of birth control. Women had abortions in Tudor and Stuart England, and took the practice with them to the New World. The reasons women chose to have abortions then are pretty much the same reasons as now; they wanted to end pregnancies caused by rape or incest, or that posed a danger to their physical or mental health. Poor families chose abortions because they could not feed another mouth, and at a time when society frowned on having a child out of wedlock, single women who got pregnant had abortions rather than face the type of social stigma Nathaniel Hawthorne depicted in The Scarlet Letter.
In colonial and early republican times society viewed abortion as a private matter, but we do know from the available historical documents that it was not that rare. Women used methods they got from friends and relatives, or went to folk healers or midwives for help. Common abortifacients often involved toxic plants like juniper, which Native Americans had traditionally used for the same purpose. After the Revolution the United States continued to follow English common law, which allowed women to have abortions up until the time they could feel the fetus move, the so-called “quickening,” which often occurred in the fourth month of gestation. In an era before pregnancy tests and regular visits to a doctor, the quickening might be the first sign for some women that they were even pregnant; symptoms such as fatigue, weight gain, nausea, or even the cessation of menses might well have been attributed to other health issues.
Quickening played an important role in the law and in public attitudes regarding abortion. Some religious traditions believed that at the time of quickening the fetus received its soul from God. American law considered quickening the point at which a fetus could be considered a human being for certain purposes. For example, if an assault caused a woman to miscarry, her husband could sue the attacker for loss of his property interest in the unborn child. Most states, however, did not consider a fetus a full person until birth, so while the attacker might be liable for damages, he would not be subject to criminal penalties for murder or manslaughter. If a woman took steps to end a pregnancy before quickening, neither church nor society considered it a sin or a crime.
In 1821 Connecticut became the first state to make it illegal for a woman to have an abortion, but only after quickening. Since it was nearly impossible to prove that quickening had occurred without the woman’s cooperation, the law proved extremely difficult to enforce. From the records it appears that abortion providers faced criminal action only when the pregnant woman died or had serious health consequences afterward.
In the years that followed other states passed laws that went beyond the Connecticut statute. In 1828 Illinois, Missouri, and New York made all abortions illegal, even in the early stages of pregnancy, in order to protect women from incompetent abortion providers. These laws viewed pregnant women as victims of the crime, and the women themselves could not be prosecuted either for seeking an abortion or for performing one on themselves. Other states passed similar laws in the 1830s and early 1840s. In 1845 New York amended its statute so that a woman could be charged with a crime if she tried to obtain an abortion or performed one on herself at any stage of the pregnancy. The new laws were impossible to enforce without the testimony of the women involved. According to some studies, even as more states passed laws against abortion, women continued to have them. In 1845 Chief Justice Lemuel Shaw of Massachusetts, where abortion was still legal prior to quickening, dismissed a case against abortionist Luceba Parker. There was no evidence that the fetus had quickened, and therefore no way to prove that an abortion had been intended.
In the 1840s a Massachusetts physician, Charles Knowlton, became the country’s best-known advocate of abortion rights, arguing in newspaper interviews, magazine articles, and books that abortion constituted a necessary part of family planning. (One needs to recall that at this time neither condoms nor any other form of birth control, aside from abstinence, were available.) American society would benefit, Knowlton argued, if all parents were happy and healthy and all children wanted and well cared for. If an additional child would be a burden, then parents should be allowed to end the pregnancy.
In the light of Knowlton’s campaign, women’s health clinics opened in many cities that provided abortion, although they disguised this fact to avoid running afoul of the law. They treated, they said, diseases specific to women, and in an age when custom dictated that middle- and upper-class women not go out of the house once their pregnancy showed, few men—even those in government—were going to ask many questions about these “diseases.” At the same time, newspapers and magazines carried advertisements for mail-order drugs to cleanse a woman’s reproductive tract and restore normal menstruation.
How many abortions took place cannot be known, but one estimate is that by the Civil War there was one abortion for every four live births. An even more significant and verifiable statistic is that the fertility rate for American women declined by 50 percent between 1800 and 1900, from an average of 7 to 3.5 children. For many, perhaps most American women, abortion provided the only means of birth control available to them.
Not everyone approved, and in the years following the Civil War the American Medical Association (AMA), founded in 1847, took the lead in opposing abortion. Doctors claimed that abortion posed unnecessary risks to women’s lives and health, and it is true that many women who had abortions suffered from infections and other dangerous complications afterward. But a good part of the opposition grew out of the fact that most surgical abortions were performed by midwives, and doctors wanted to gain greater control over the practice of medicine. The AMA lobbied both the federal and state governments to bar anyone but a licensed physician from performing an abortion.
Some Americans opposed abortion on moral grounds, and argued that a woman’s fundamental duty and purpose was to bear children, and women who had abortions, therefore, selfishly refused to accept their “natural” roles as wives and mothers. The criminalization of abortion, like many other laws in this period, asserted that women had to be protected against their own weaknesses, as well as the immorality of conceiving unwanted children and then trying to get rid of them. Some religious groups also began to condemn the practice, and the Catholic Church in 1869 abandoned the concept of quickening and declared human life sacred from conception. Catholic leaders began denouncing abortion as a moral evil.
Some white Protestant leaders opposed abortion because they feared the country was being overrun by immigrants from southern and eastern Europe, who typically had higher birth rates. It was the duty of educated middle-class, old-stock women, they argued, to have as many children as possible in order to keep America safe from these new groups. Joining them was Anthony Comstock, who saw abortion as a result of promiscuous sex—even among married people—and wanted to prohibit not only abortions but even information about the crude contraceptives then becoming available.
Beginning in the 1860s the campaign made rapid headway throughout the United States. Connecticut passed an anti-abortion law eliminating the quickening standard, and made abortion a crime for both those who performed it as well as for women who obtained one. The Connecticut statute became a model, and by 1890 every state in the Union, as well as the remaining territories, had given in to the antivice crusaders and the doctors, and abortion was now a crime. While most states outlawed the procedure at any stage of the pregnancy, they also allowed so-called “therapeutic” abortions if the woman’s life was at risk from the pregnancy. Hospitals established abortion review committees, and if a doctor wanted to perform a therapeutic procedure he needed permission from the committee. Four states—Louisiana, Massachusetts, New Jersey, and Pennsylvania—did not have any exceptions in their laws, not even if an abortion was necessary to save the woman’s life.
These were the laws on the books until the 1960s.
During this period enforcement varied considerably. Initially, police and prosecution cracked down on abortion providers, particularly midwives, and especially when a death or injury occurred. Then in the 1920s sexual attitudes began to liberalize, and police enforcement slackened considerably. The Great Depression also changed attitudes, as massive unemployment and poverty made it difficult for many families to provide for the children they already had much less for new mouths to feed. Abortion became more acceptable, even for married women, and in many parts of the country police just looked the other way. At the same time, many doctors performed abortions in their offices without asking a hospital committee’s permission. While again it is difficult to provide accurate numbers, studies indicate that during the Depression some 600,000 to 800,000 abortions—nearly all of them technically illegal—took place. Many of these occurred in “back alley” clinics and often led to infection or worse; estimates are that between 8,000 and 17,000 women a year died at the hands of these incompetent and uncaring abortion providers, most of whom were little more than charlatans.
As doctors realized that they could perform safe abortions, and that their patients desperately needed help, they began to call for repeal of the harsh laws on the books. But then came World War II, and after the peace couples who had delayed families suddenly rushed to make up for lost time. As part of the postwar “baby boom,” women were exhorted to leave jobs and return to their “natural” role as wives and mothers. Police again raided the same clinics where only a few years earlier they had steered women in need of help. The crackdown on abortion also fit in with the social conservatism of the 1950s. When the Soviet Union legalized abortion in the mid-1950s, anti-red crusaders in the United States linked abortion to support for communism! The prosecution and conviction of some doctors, such as the highly regarded Baltimore physician George Timanus, also served to scare doctors who had previously been willing to perform abortions. At the same time, there seemed to be a rising demand from women for abortion services, and in the absence of trained physicians, women sought other sources.
If a woman had means, then she had opportunities, and a quick trip to Europe could combine both a short vacation as well as a medically safe abortion. Ironically, two heavily Catholic outposts in the Western Hemisphere also provided legal abortions, Puerto Rico and Mexico. Every Friday afternoon a charter plane took off from Dallas for Mexico, with the passengers—all women, some of the younger ones with their mothers—going to “shop.” The plane returned on Sunday afternoon, and while all the passengers carried something they had bought, they also were no longer pregnant. Even within the United States some women could obtain safe abortions. As one doctor noted, “as long as you were the banker’s daughter, the doctor’s daughter, the golf buddy’s daughter, an unwanted pregnancy was always taken care of.”
But those without means, or those who could not travel because of fear of parents or husbands, had to turn to the back alley providers, where unskilled and often disreputable people preyed on them. As one scholar described it, those entering the practice included “motorcycle mechanics, bartenders, and real-estate agents, who knew little more than that women needed abortions and that inducing them was profitable.” From this era we have stories of women meeting intermediaries who blindfolded them and then drove them to secret places where unknown people performed abortions. There may have been as many as one million abortions a year during the 1950s and early 1960s, and a shockingly high number of deaths. One estimate put such abortions as the cause for more than 40 percent of maternal deaths.
Then change occurred, precipitated on the one hand by doctors appalled at the carnage untrained abortionists wreaked on helpless women, and on the other from the growing women’s rights movement, which began to see access to birth control and abortion as key to women’s control over their own bodies.
Two events in the early 1960s also prodded both the public and doctors to rethink the accepted notions regarding abortion. Sherri Finkbine, the Phoenix host of Romper Room, a national children’s show, was happily married and pregnant. Then she learned that a drug she had been taking to alleviate sleeplessness and morning nausea was thalidomide, which had been linked to severe birth defects. The Finkbines’ doctor recommended a therapeutic abortion, and the local hospital committee approved. Wanting to alert other women to the dangers of the drug, Sherri alerted the local press. The wire services picked up the story, and the Finkbines soon found themselves in a media circus, inundated with letters both supporting and attacking them. Romper Room fired her, the local hospital committee withdrew its approval, and the Finkbines, because they had the resources, traveled to Sweden. There she had a safe and legal abortion of a fetus that was too deformed to have lived. On their return home the Finkbines publicly defended their decision as best for themselves and their other children. A Gallup poll conducted a month after her return indicated that 52 percent of the respondents thought she had done the right thing, and only 32 percent said she had been wrong. Even one-third of the Catholics agreed with her decision.
Around the same time the country witnessed an epidemic of rubella, or German measles, and it was established medical knowledge by then that pregnant women contracting the disease faced a high risk of birth defects. Between 1962 and 1965 approximately 15,000 babies were born with birth defects linked to rubella. Most doctors and hospital review committees supported abortions for pregnant women with rubella, but in 1966 an anti-abortion member of the California Board of Medical Examiners forced the San Francisco district attorney’s office to prosecute nine well-known obstetricians because they had performed hospital abortions on women with the disease. The story once again got national media attention, and doctors around the country protested, including the deans of one hundred medical schools. All this attention forced the district attorney to drop the charges, but it made doctors aware that even when the law allowed therapeutic abortions for good medical reasons, the vagaries of local regimes might leave them open to prosecution.
By then, however, the first steps had been taken toward reforming abortion laws that a good part of the public and most of the medical profession considered archaic. The Planned Parenthood Association, the country’s leading advocate for birth control information and the reform of abortion laws, had sponsored a national conference in 1955, and the papers from that meeting, all urging repeal of the laws and making safe and legal abortion more available, received favorable notice in both the scientific and legal communities. Four years later the prestigious American Law Institute (ALI), whose members—judges, lawyers, and law professors—suggested “model” codes, largely adopted the findings of the Planned Parenthood meeting, and recommended that the criminal provisions regarding abortion be dropped from all state penal codes. The ALI did not endorse making abortion more available, and physicians remained concerned that local prejudices and prosecutors trying to make a reputation could still override their professional judgment.
Since most states pay close attention to ALI recommendations, many began reviewing their abortion statutes. California began the process in 1962, and although the Catholic lobby managed to kill a reform bill then and the following year, the idea of safe and legalized abortions gathered momentum and the assembly passed a reform measure in 1967. Thirty other states debated reform, and over the next few years nine other states passed ALI-style reform statutes. Even after states passed such measures, however, abortion providers often ran into opposition. The Catholic Church opposed abortions and brought pressure on local hospital committees not to approve the procedure; other hospitals, not wanting to be labeled as “abortion mills,” put quotas on the number of procedures they would allow.
At the same time, the women’s rights movement was gaining strength throughout the country, and one of its key demands was a woman’s control over her own body. This included decisions as to whether or not to use contraceptives (the oral contraceptive had just been introduced in 1960) and whether to continue or terminate an unwanted pregnancy. Although initially many media outlets treated the women’s rights movement as a joke and focused on some of the more radical groups, eventually the mainstream press and television began treating women’s demands seriously. Discussion of reproductive control moved from a taboo area to the front pages, and numerous articles in women’s magazines began exploring the matter for the first time. Interestingly, while doctors opposed a ban on abortion because it interfered with their professional judgment, many women argued that selecting whether to abort or not should be their decision, not the doctor’s. By 1969 a Harris poll found that 64 percent of Americans, including 60 percent of Catholics, believed that abortion should not be a legal question but a private decision between a woman and her doctor.
In the early 1970s other states followed California in repealing their old abortion statutes. The battle that caught the most headlines occurred in New York, a heavily Catholic state where the Church lobbied relentlessly and brought a great deal of pressure on Catholic members of the assembly. At first it appeared that the measure had fallen one vote shy, but then George Michaels asked to change his “no” vote to “yes.” He acknowledged that, given the Church’s influence in his district, this would probably mean the end of his political career, but he could not in good conscience vote to kill a bill so important to women’s health. The bill passed the assembly and the next day the Senate followed suit, with Gov. Nelson A. Rockefeller signing it into law in April 1970.
The New York law was a true repeal law, and essentially removed abortion from the criminal code. In addition, it was not restricted to New York residents, nor did it require that abortions take place in hospitals. In 1973 the number of legal abortions in New York outnumbered live births, and thanks to groups like Planned Parenthood that set up safe and clean clinics, back alley providers practically disappeared. But then the reform movement faltered. Opposition to repeal in other states prevented any other significant changes, and advocates decided to look to the courts.
During the 1950s and 1960s, the Supreme Court under Chief Justice Earl Warren had struck down state-sponsored racial segregation, declared state legislative malapportionment unconstitutional, breathed life into those portions of the Bill of Rights protecting persons accused of crimes, and made the First Amendment into a shield as well as a sword of democratic government. Moreover, it had determined that a constitutional right to privacy existed in the landmark case of Griswold v. Connecticut (1965).
Justice Louis D. Brandeis had argued in Olmstead v. United States (1928) that the Constitution included a right to privacy, a right to be let alone from government interference, but the full Court did not accept this notion for four decades. Griswold involved an 1879 statute prohibiting the use of any drug or device to prevent conception, and penalizing any person who advised on or provided contraceptive materials. Civil libertarians had tried twice before without success to get the high court to review this law, and in its most recent attempt the Court had turned away the challenge because no one had been prosecuted under it for years. In his dissent in Poe v. Ullman (1961), however, Justice John Marshall Harlan II had suggested that a liberty interest in personal privacy—that is, an individual right that came within the protection of the Fourteenth Amendment—existed that deserved judicial protection.
Shortly afterward New Haven officials prosecuted Estelle Griswold, the executive director of the Connecticut Planned Parenthood League, for violating the 1879 law. In Griswold Justice William Douglas, speaking for a 7–2 majority, wrote one of the most creative opinions in the Court’s history, reversing the conviction and voiding the law. Although Harlan in Poe had suggested that a right to privacy existed in the Fourteenth Amendment’s due process clause, utilizing that clause would have meant resurrecting the idea of substantive due process, the doctrine that had killed so much reform legislation and which still had a bad odor even after the Court had disavowed it in the late 1930s (see Chapters 13 and 16). Rather than rely on substantive due process, though, which actually made sense and which the Court had from time to time used to protect rights, Douglas instead cobbled together justifications from various parts of the Bill of Rights. The amendments, he declared, “have penumbras, formed by emanations from those guarantees that help give them life and substance.” Taken together (in what one wit termed Amendment 3 and a half), they form a constitutionally protected right of privacy, and no privacy could be more sacred or deserving of protection from intrusion than the marital chamber.
Although Douglas did not mention abortion in his opinion, and even though he tried to shy away from substantive due process, it soon became clear that the due process/liberty interest argument, which Justice Harlan spelled out in his concurrence in Griswold, might be the key to getting the abortion question before the courts. Harlan argued that the Fourteenth Amendment due process clause did in fact include substantive rights, and that one of these was a liberty interest in one’s own body, and the right of the individual, not the government, to make decisions regarding one’s own health and physical welfare.
In New York a law school student named Roy Lucas, spurred on by the fact that he had had to take his girlfriend to Puerto Rico to get a safe and legal abortion, wrote a term paper that he then published and which was studied carefully by abortion rights activists. Lucas located a right to an abortion in the same set of constitutional protections that Douglas had expounded in Griswold. He listed a number of cases in which the Court had identified individual liberty rights and argued that for a woman, the decision to terminate a pregnancy was a liberty and privacy matter as important as any of those previously identified by the Court, such as how to raise and educate one’s child. Lucas went on to reject the argument that a fetus is a legal human being, since that position had no basis in Anglo-American law. The state had a legitimate interest in protecting the health and safety of women, and this would warrant some regulation, such as requiring that the procedure be carried out by licensed physicians. As for those states that allowed therapeutic abortions, Lucas believed they could be challenged as too vague to satisfy due process requirements. There should, he declared, be “a frontal attack on the very assumptions of abortion legislation . . . through judicial enforcement of the guarantees of human rights found in the amendments to the United States Constitution.” Lucas also prepared a model legal brief that he believed could be used in attacks on abortion legislation.
One of the people who read the Lucas article was Sarah Ragle Weddington.
While Sarah Ragle had been a third-year student at the University of Texas Law School in Austin, she discovered that she was pregnant by Ron Weddington, a fellow student who later became her husband. The couple recognized that she would not be able to get an abortion in Texas, where the law prohibited the procedure except to save the life of the mother, so they went to the Mexican border town of Piedras Negras, where they found a competent doctor. She finished her law degree but then found it hard to get a job because most firms would not hire women, so she accepted a nonpracticing position with the American Bar Association. Her experience with gender bias led Weddington to become active with women’s rights groups, birth control counseling, and referring women to safe abortion clinics in Mexico.
She later claimed that Roe v. Wade “started at a garage sale, amid paltry castoffs,” to raise money for a women’s liberation consciousness-raising group. Two of the women, Judy Smith and Bea Durden, were actively involved in the underground abortion referral service, and worried whether their activities might lead to their prosecution as accomplices under the Texas criminal abortion statute. Although the topic had never been mentioned in her law school classes, her own personal history led Weddington to agree to do some legal research for her friends.
Weddington, it should be noted, was not the only lawyer in the country then doing research on the possibility of challenging a state abortion statute, nor the only one who read the Lucas article, but she was the one who, despite being only a few years out of law school, successfully brought a case to the U.S. Supreme Court.
Her research convinced her that it would be possible to mount a constitutional challenge to the Texas statute, and she asked her friend and fellow law school classmate, Linda Coffee (who had also run into gender discrimination in looking for a job), to help her. Coffee agreed, and they began looking for a pregnant woman who could serve as a plaintiff. In January 1970 they met twenty-two-year-old Norma McCorvey.
McCorvey had had a difficult life. Her parents constantly fought, and when at age ten she was kicked out of a Catholic boarding school for “rebellious behavior,” she wound up in a reform school in Gainesville, Texas. She spent four years at the all-girls institution, years she would later call the happiest ones of her childhood. She was returned to her home at age fourteen, and her mother arranged for her to stay at the home of a relative. He raped her every night for three weeks until her mother found out and brought her home. Norma worked as a waitress in a Dallas restaurant, and in 1964 the sixteen-year-old married Woody McCorvey. They moved to California, and when McCorvey found out his wife was pregnant he beat her and she left and went home to her mother. She gave birth to a girl and ceded her parental rights to her mother, who raised Melissa and for the most part tried to keep Melissa away from Norma.
Although she divorced Woody she kept her married name, and floated from one job to another, one man to another, and occasionally one woman to another. She got pregnant again, and gave her second child up for adoption. “Every time I go to bed with a man,” she explained, “I get pregnant,” and she was pregnant again in 1969, this time by an aging gambler working as a carnival ticket-taker. She went to a doctor and said she wanted him to “take my baby away,” but aware of the law, he quickly showed her out of his office. Trying to induce a miscarriage, she ate quantities of peanuts and castor oil, but only wound up getting sick. She tried other doctors and lawyers, and when she finally got the name of a clandestine abortion clinic she found it locked. Finally, a sympathetic doctor referred her to Henry McCluskey, a lawyer specializing in adoptions, and he sent her to see Linda Coffee.
When McCorvey, Coffee, and Weddington met at a pizza parlor in northeast Dallas, the two lawyers liked what they saw—a petite, visibly pregnant woman with an air of naiveté—one who would be an appealing plaintiff in the courtroom. At the time, McCorvey still wanted to get an abortion, but Weddington and Coffee wanted a test case, and they convinced her to become “Jane Roe.” A few months later McCorvey delivered a healthy son, and gave it to McCluskey for adoption. McCorvey then, as she later recalled, “stayed invisible, burying myself in drugs and alcohol, as Linda and Sarah made history in my name.”
In March 1970 the two lawyers filed their initial suit in federal court against Henry Wade, the district attorney for Dallas County, with Coffee paying the filing fees out of her own pocket. She also asked that the case be heard by a three-judge panel consisting of both district and circuit court judges, a procedure then allowed when challenging the validity of a statute on federal constitutional grounds. In addition to getting a more varied panel, one could appeal the results directly to the U.S. Supreme Court. To their surprise, the request was granted, and the panel that would hear the case could not, from their point of view, have been better.
They got one of the few women on the federal bench at that time, Sarah Hughes, who after the assassination of John F. Kennedy in November 1963 had sworn in Lyndon Johnson as president aboard Air Force One. In addition, district court judge William Taylor had a reputation as fair and open-minded, while Court of Appeals judge Irving Goldberg had issued several pioneering decisions on civil rights.
The two lawyers had been meeting with the Dallas Committee for the Study of Abortion, which wanted to enlarge the suit to include married as well as single women. Roe v. Wade would thus be a class action suit as well as an individual case, speaking for all women denied access to legal abortion in situations where the state had no compelling reason to deny it. To bolster these claims, two other parties joined the suit. Dr. James H. Hallford contended that the Texas law infringed on his right as a doctor to provide his patients with the treatment that in his judgment they needed. “John and Mary Doe,” pseudonyms for David and Marsha King, joined the case to argue for a married couple’s right to terminate a pregnancy.
The panel heard the case on May 22, 1970. Weddington’s legal experience up until this time had consisted of a few uncontested divorces, so Coffee handled most of the oral argument. But Weddington handled the crux of the constitutional case. The Texas law, she claimed, infringed on Jane Roe’s “right to safe and adequate medical advice pertaining to the decision of whether to carry a given pregnancy to term” and upon “the fundamental right of all women to choose whether to bear children.” When the hearing ended, Weddington and her allies had no idea which way the court would decide. “Most lawyers leave the courtroom knowing they will simply have to wait for the decision. That is just the way it is. We began to wait.”
Less than a month later they had their decision in the first stage of Roe v. Wade. The panel issued a unanimous per curiam decision (a memorandum from the entire court that does not bear a single author’s name) holding the statute too vague to be enforced. But the court also went on to address the broader issue, and ruled that “the Texas abortion laws infringe upon plaintiffs’ fundamental right to choose whether to have children.” The panel relied on Griswold, but not on the Douglas opinion. Instead they turned to Justice Arthur Goldberg’s concurrence, which used the Ninth Amendment’s provision of rights retained by the people as a basis for the right of privacy. The panel also refused to issue an injunction preventing further prosecutions, on the assumption that no district attorney would prosecute a law deemed unconstitutional.
The decision made the front pages of all the Texas papers, and even received some attention in other parts of the country. The Kings, speaking as the Does, naturally applauded the decision; no word came from Jane Roe. Even the president of the Catholic Women of the Dallas Diocese agreed that the court could not have reached any other decision, because as it stood the law was too vague, and she hoped the legislature would craft a better statute with more carefully defined health exemptions. District Attorney Henry Wade announced that he would not only appeal the decision, but until the Supreme Court spoke he would continue prosecutions under the law.
We focus on Roe because it was the case decided by the Supreme Court, but in the summer of 1970 there were more than twenty lower court cases challenging abortion statutes in the states and in the District of Columbia. Some people have argued that the Court should not have taken up the matter until the reform movement in the states had run its course. Reform, however, not only seemed stalled, but few states went as far as New York had done. Some of the “reform” statutes did not give women a full right to terminate a pregnancy, but placed limits on how and when an abortion could be secured. In addition, prosecutorial discretion threw a wild card into the mix; a woman seeking an abortion in one jurisdiction might well be ignored by a prosecutor, while in the next district over she and her doctor could be arrested and tried. Moreover, some of the state courts had begun declaring that, based on Griswold, a constitutional right to privacy existed that included a woman’s option to have an abortion. Given this situation, the only question was how soon the Court would grapple with the issue.
The first abortion case the justices heard involved a District of Columbia statute. U.S. District judge Gerhard Gesell, an eminent and highly respected jurist, struck down the law banning abortions on the grounds that the “health” and “life” exceptions to the ban were too vague. He went on to note that “as a secular matter a woman’s liberty and right of privacy extends to family, marriage and sex matters and may well include the right to remove an unwanted child at least in the early stages of pregnancy.”
The Supreme Court reversed Gesell in United States v. Vuitch in 1971 (Milan Vuitch was a doctor who performed abortions in the Washington, D.C., area), but in a highly fractured opinion that tried to duck the privacy question. Hugo Black delivered the majority opinion that the health provisions of the statute were not overly vague, and he was joined in part by Burger, Douglas, Stewart, and White, and then joined in another part by Burger, Harlan, White, and Blackmun. White and Douglas both agreed that the statute was not vague, but Douglas dissented on the grounds that the statute did not meet due process requirements because it opened a physician’s judgment to the vagaries of a jury trial. Harlan, joined by Brennan, Marshall, and Blackmun, dissented on jurisdictional grounds, claiming that the appeal should not have been allowed. Then Harlan, speaking only for himself, said that despite the jurisdictional issue, on the merits he would agree with the majority; Blackmun said something similar. Only Potter Stewart believed that a physician should not be subject to prosecution for performing an abortion that in the doctor’s opinion was necessary either for health reasons or to save a patient’s life. None of the nine justices ventured into the privacy terrain.
The Court could have chosen appeals from any of a half-dozen states, but it took the one from Texas because that state’s law represented the older type of statute, one that banned nearly all abortions, and it also took Doe v. Bolton, an appeal from a Georgia reform statute passed in 1968. Unlike the Texas law, Georgia did not make all abortions criminal except those necessary to save the life of the woman. Instead, abortion was legal when two sets of criteria were met. First, an abortion was permissible if a licensed physician, “in his best clinical judgment,” deemed an abortion necessary because the woman’s health or life was in danger, the baby was likely to have a serious birth defect, or the pregnancy was the result of rape. Second, the decision had to be approved by two other licensed doctors and a hospital abortion committee, and be performed in a hospital. While far more lenient than the Texas law, it still left the decision to abort in the hands of doctors and committees, not with women.
The plaintiff in the Georgia case, Sandra Bensing, had a story similar to that of Norma McCorvey—a ninth-grade dropout who married a drifter and rapidly had two children. He beat her and the children, who were eventually taken away and placed in foster care for their protection. She got pregnant again during a stormy period in their marriage, and decided to leave her husband and put the child up for adoption if she could not get an abortion. Her attorney, Margie Hames, conferred frequently with Weddington and Coffee, and they assisted each other with the appeals briefs.
On May 21, 1971, the Court announced that it would hear the two cases with briefs due over the summer. Weddington at this time was working for the city attorney of Fort Worth, and he refused to give her time to work on the case, so she and her husband decided she should quit and devote herself full-time to preparing for the high court, which heard oral argument on December 13, 1971. There were, however, only seven justices on the bench, since President Nixon was having trouble replacing Hugo Black and John Marshall Harlan II, who had both retired in ill health in September. At conference five justices voted to overturn the Texas statute, but there was no clear majority in the Georgia case. Chief Justice Burger assigned the case to Harry Blackmun, who was known as a notoriously slow writer, and in the summer of 1972 Blackmun buried himself in the medical library at the Mayo Clinic and worked on a draft. Because the justices recognized the important issues involved, they decided to reschedule oral argument in both cases when there would be a full bench. With the addition of William Rehnquist and Lewis Powell, nine justices heard reargument on October 11, 1972, and handed down their decision on January 22, 1973.
By a 7–2 vote in both cases, the Court struck down the two state laws. In his opinion Justice Blackmun first reviewed the history of antiabortion legislation, as well as numerous ethical, philosophical, and religious writings on the subject. He concluded that the laws of most states, including Texas, were out of touch with medical advances and history. More importantly, he found that they violated the constitutional right to privacy.
Conceding that the document “does not explicitly mention any right of privacy,” Blackmun cited a dozen or so cases going back more than eighty years to assert that the Constitution protected such a right in a variety of ways. The Court “has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy” exist under the Constitution. This right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The state imposed a great burden upon a woman when it denied her this decision, subjecting her to potential medical harms, as well as financial and emotional harms.
The state, however, also had an interest in protecting life, and he set out a three-stage standard to determine when a woman’s privacy right trumped the state’s interest, and when the state could restrict the woman’s right. During the first trimester, the decision of whether to continue the pregnancy rested entirely with the woman and her physician. During the second trimester, a state had a right to regulate abortions to protect the health and safety of a pregnant woman, but the decision of whether to have an abortion still remained with the woman. Only in the third trimester did the state gain a paramount interest in preventing an abortion. The reason was that “the fetus then presumably has the capability of meaningful life outside the mother’s womb,” and state protection thus has a logical and biological justification. During this third trimester a state could prohibit abortion “except when it is necessary to preserve the life or health of the mother.” (The trimester scheme had not been suggested in any of the briefs; Blackmun developed it out of his own research.)
Two justices dissented. William Rehnquist believed that the Court should not have heard the case at all, because Roe’s pregnancy was over, and while a party “may vindicate his own constitutional rights, he may not seek vindication for the rights of others.” Blackmun answered this argument when he noted that pregnancy litigation will seldom survive the trial stage, and appellate review would be effectively denied. Pregnancy provided a classic example of “capable of repetition, yet evading review,” and the law should not be that rigid.
Byron White also dissented, claiming that nothing in the language or history of the Constitution supported the Court’s judgment, and that the majority had simply fashioned a new right for pregnant mothers with scarcely any reason or authority to justify it. Moreover, it had now taken away from the states—where it belonged—the power to fashion policy in this area.
In the companion case of Doe v. Bolton challenging the Georgia law, the Court set aside the requirements that interfered with a woman’s decision to terminate a pregnancy, namely that abortions had to take place in accredited hospitals rather than clinics, and that a committee had to approve the procedure before a doctor could act. For all practical purposes, abortion laws in some forty states were effectively nullified.
The decisions were not particularly controversial when announced. The death of former president Lyndon Johnson that day pushed news of Roe to the inside pages, and some states, notably New York and California, had already adopted laws that met Blackmun’s criteria. Moreover, to many people the decision seemed the logical conclusion of a set of cases that had been expanding not only the right of privacy, but the rights of women that recognized changing societal views of the family and of child-bearing. Roe seemed a very modern decision, much like Brown v. Board of Education (1954), that liberated a large class of people—in this case women—from antiquated laws. Women’s groups, needless to say, were elated.
There was no immediate large-scale public outcry against it, and much of the mainstream press applauded. The New York Times called it a “major contribution to the preservation of individual liberties.” Although the conservative Wall Street Journal worried that Blackmun’s trimester scheme might tread on the toes of state lawmakers, on the whole it praised the decision, and said the Court had “struck a reasonable balance on an exceedingly difficult question.” Social and legal conservatives, on the other hand, thought the Court had gone too far. Professor (and later appellate judge) John Noonan believed that not only had the justices misread history, but they had created a right where none existed.
It is in this last area that Roe received the heaviest criticism, even from liberals who favored abortion rights. Professor John Hart Ely, who had been one of Earl Warren’s law clerks, wrote what many consider the most devastating analysis and concluded that one could not find in the Fourteenth Amendment’s due process clause any justification or logic to extend an umbrella of protection giving women the right to terminate a pregnancy. When Ruth Bader Ginsburg was named to the high court, she repeated at her confirmation hearings her earlier criticism that the Court should have issued a narrower ruling, overturning the Texas statute but leaving other laws restricting abortions in place. This stratagem, Ginsburg believed, would not have aroused such a strong backlash, and the question would have been left in the hands of state legislatures.
Within a few years the climate changed, when religious groups—notably Roman Catholics and fundamentalist Protestants—began a campaign against the decision. The National Conference of Catholic Bishops had denounced the opinion immediately, but it had done so from a religious perspective, and its opposition was aimed primarily at Catholic women, whom it urged not to commit such a sin as they considered abortion to be. But as conservative Protestant groups such as the Christian Coalition entered the political arena, opposition to abortion—even by those who did not share the Christian Coalition’s beliefs—became their chief rallying cry. Some state legislatures, responding to this pressure, tried to evade Roe, but while the Court approved some restrictions on abortions, it kept the basic holding of Roe in place. Conservatives hoped that with the appointment of the Reagan and Bush justices the decision would be overturned, and they thought that time had come when the Court heard Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992. But three of the Reagan-Bush justices—Sandra Day O’Connor, Anthony Kennedy, and David Souter—wrote a joint opinion reaffirming the “essential holding” of Roe, namely, that women had a constitutionally protected right to an abortion in the early stages of a pregnancy.
If Lochner was the bête noire of liberal reformers in the 1920s and 1930s, Roe v. Wade has been the target of conservative ire for more than three decades. The debate, as one legal scholar has called it, is a clash of absolutes, with neither side willing to admit any justice on the part of the other. For social conservatives and Christian anti-abortion groups, it is not only an example of judicial usurpation of the legislature’s primacy in policymaking, but it is also immoral, since it dismisses the unborn as nonpeople without souls. For legal conservatives it ignores the plain meaning of the Constitution, and hijacks the due process clause to tack on not only a right to privacy, but a right to abortion, into a document that never had nor was meant to have such ideas. Political conservatives see it as judicial activism run rampant, and at every judicial nomination hearing Republican senators use their speaking time both to attack and to try to get the nominees to disavow it.
Between the first and second arguments of Roe, Sarah Weddington decided to run for the Texas House of Representatives, and thanks to the name recognition she had earned as the lawyer in the case, won a seat in November 1972. She served three terms, and later recalled as one of her proudest achievements a bill that stemmed from another personal incident of gender bias. A credit card company refused to issue her a card in her own name without her husband’s signature. So she sponsored the Texas Equal Credit bill, and after it passed, went back to the company, which now had no choice but to issue her a card in her name.
After service in the Texas legislature she worked for the Carter administration as general counsel to the Department of Agriculture, and in 1978 became the president’s special assistant on women’s issues. In the 1980s she taught first at Texas Women’s University, and then joined her alma mater, the University of Texas Law School. Using that base she has remained active in the campaign for women’s rights.
Norma McCorvey felt herself rather ill-used by Weddington, who treated the Kings as her main client, and McCorvey never attended any of the sessions of the proceedings; she did not even know when the case was being argued before the Supreme Court. In fact, when the decision came down McCorvey learned of it reading a newspaper; Weddington had been unable to find her. For much of the 1970s and 1980s she led a quiet existence. She began a long-term and stable lesbian relationship with Connie Gonzales, and the two women ran a successful apartment cleaning and rehabilitation business. In 1984 she revealed that she had been “Jane Roe,” but did not become widely known as such until 1989, when she took part in a pro-choice rally in Washington, D.C.
After Weddington published her story of the case in 1992, McCorvey decided to tell her side. A publisher bought the proposal, and then assigned a writer to help her; the result was I Am Roe: My Life, Roe v. Wade, and Freedom of Choice, which came out in 1994. In it she claimed that “the lawsuit was not really for me. It was about me, and maybe all the women who’d come before me, but it was really for all the women who are coming after me.”
The following year, however, she publicly announced that she had become a born-again Christian and no longer believed in abortion. The dramatic change came about, she said, after the pro-life Operation Rescue opened offices next door to a Dallas family services clinic where she did volunteer work. She spent the next two years as an activist for Operation Rescue, but left the organization in 1997 because she had grown increasingly uncomfortable with the group’s confrontational tactics. She has remained strongly pro-life and claims that she ended her sexual relations with Gonzales, although the two women continue to live together. In 1998 she joined the Catholic Church. She serves as executive director of the Crossing Over Ministry, formerly the Roe No More Ministry, dedicated to reversing the 1973 decision.
(Sandra Bensing, who had been the “Jane Doe” in the Georgia case, also became a born-again Christian, and affiliated with the militant Operation Rescue in the late 1980s. She claimed her role in the case had been a huge mistake resulting from mental instability.)
In 2005 McCorvey asked the Supreme Court to overturn Roe v. Wade on the grounds that new evidence exists that the procedure harms women, but the Court denied the petition in McCorvey v. Hill.
Brown v. Board of Education, 347 U.S. 483 (1954)
Doe v. Bolton, 410 U.S. 179 (1973)
Griswold v. Connecticut, 381 U.S. 419 (1965)
Lochner v. New York, 198 U.S. 45 (1905)
McCorvey v. Hill, 543 U.S. 1154 (2005)
Olmstead v. United States, 277 U.S. 438 (1928)
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
Poe v. Ullman, 367 U.S. 497 (1961)
Roe v. Wade, 314 F.Supp. 1217 (N.D. Texas 1970)
Roe v. Wade, 410 U.S. 113 (1973)
United States v. Vuitch, 402 U.S. 62 (1971)
The literature on the case is immense, but a good overall summary is N. E. H. Hull and Peter Charles Hoffer, Roe v. Wade: The Abortion Rights Controversy in American History (2001). Together with Williamjames Hoffer, they have edited The Abortion Rights Controversy in America: A Legal Reader (2004). The status of abortion laws in the states is examined in Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 (1997). David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994), emphasizes the case as a privacy matter. An interesting take is Jack M. Balkin, ed., What Roe v. Wade Should Have Said (2005), in which many of the nation’s top legal experts “rewrote” the case. For personal reminiscences of the two women most responsible, see Sarah Weddington, A Question of Choice (1992), and Norma McCorvey, with Andy Meisler, I Am Roe: My Life, Roe v. Wade, and Freedom of Choice (1994). For McCorvey’s later change of views, see her Won by Love (1998), written with Gary Thomas.