On January 22, 1973 the Supreme Court of the United States issued its decision in the famous abortion rights case, Roe v. Wade. To help us look at this important and controversial decision we turned to Kermit Hall‘s The Oxford Guide to United States Supreme Court Decisions which offers lively and insightful accounts of over four hundred of the most important cases ever argued before the Court.
Roe. v. Wade, 410 U.S. 113 (1973), argued 13 Dec. 1971, reargued 11 Oct. 1972, decided 22 Jan. 1973 by vote of 7 to 2; Blackmun for the Court, Douglas, Stewart, and Burger concurring, White and Rehnquist in dissent.
After the middle of the nineteenth century most states, under the prodding of physicians wishing to establish the scientific stature of their activities, adopted laws severely restricting the availability of abortion. The so-called sexual revolution of the 1950s and 1960s, which fostered increased access to contraceptives and the development of contraceptive drugs, also resulted in an increasing number of situations in which women desired abortions. In the 1960s and early 1970s the discovery that thalidomide, a drug that many women had used in early stages of pregnancy to relieve morning sickness, occasionally caused birth defects, as well as the highly publicized case of Sherry Finkbine, an Arizona broadcasting figure who went to Sweden to obtain an abortion when she feared her baby would be severely handicapped, increased public pressure to relax the abortion laws. Illegal abortions were widespread, though their exact number is impossible to determine, and some women died because of the unsanitary conditions in which illegal abortions were sometimes performed. The revitalized women’s movement made change in the abortion laws one of its priority goals.
Abortion reform took two forms. State legislatures began to make it easier to obtain abortions, usually by allowing abortion to protect a woman’s health, broadly defined, but also requiring approval of the abortion by a committee of doctors in addition to the woman’s own physician. Once some states had begun to relax abortion restrictions, any woman who could afford it found it relatively easy to travel to a state with an unrestrictive law or to find a doctor who would certify that the abortion was necessary to preserve her health.
Court attacks on restrictive abortion laws focused initially on the most restrictive of the traditional laws; challengers argued that such laws, which permitted abortions only to save a woman’s life, were so vague that doctors could not know when they were committing an illegal act. The California Supreme Court agreed with such a challenge in People v. Belous (1969), and the United States Supreme Court in United States v. Vuitch (1971) avoided a decision on the constitutional question by construing a federal abortion law, applicable in the District of Columbia, to allow abortions when the woman’s health, broadly defined, was in danger.
At the time these challenges were being brought, the Court was also developing a law of personal privacy in sexual matters, holding, for example, that a severe restriction on the availability of contraceptives was a violation of a constitutional right to privacy in *Griszvold v. Connecticut, 1965. Challenges to restrictive abortion laws relied on Griswold as the basis for arguing that such laws violated the right to privacy.
Roe v. Wade involved a challenge to a traditional, severely restrictive abortion law (from Texas) as well as a challenge to a more modern abortion law (from Georgia) that allowed abortions to be performed in hospitals, when approved by a hospital committee, to avoid danger to a woman’s health. The action was brought in the name of Jane Roe, a procedure adopted to ensure that the plaintiff would not have to reveal the facts surrounding her pregnancy to the Court. Although those facts were irrelevant in light of the Court’s analysis of the legal issues, shortly after the case was decided the plaintiff was identified as Norma McCorvey. At first McCorvey stated that her pregnancy had resulted from a gang rape; later she revealed that it resulted from a failed relationship.
Blackmun’s Analysis. When the case was first argued, Justice Harry Blackmun, who had once served as counsel to the Mayo Clinic in Rochester, Minnesota, drafted an opinion that would have held both statutes unconstitutionally vague. In part because his analysis was clearly unpersuasive and in part because some justices believed that the case had been improperly assigned to Blackmun to write, the case was set for reargument. During the summer preceding the reargument, Blackmun engaged in an extensive study of medical material relating to abortion.
After reargument, Blackmun circulated an opinion finding both statutes unconstitutional on the ground that they violated the woman’s right to privacy, which the opinion located in the Due Process Clause of the Fourteenth Amendment. Justice Potter Stewart’s concurring opinion properly pointed out that this invocation of substantive due process meant that the Court was enforcing a right not specifically spelled out in the Constitution. After finding that the case was not moot despite the fact that there had been no time to secure a decision before the opportunity for obtaining an abortion had passed, Blackmun’s opinion acknowledged that states had some valid interests in regulating abortion. The opinion divided pregnancy into three periods, or trimesters. During the first trimester, the woman had an essentially unrestricted right to choose abortion in consultation with her physician; thus, Blackmun held, the hospitalization and committee requirements of the more “liberal” state laws were unconstitutional.
During the second trimester, when according to medical experts abortion posed a greater threat to a woman’s health, states could regulate abortion to protect her health. Only in the third trimester was the state’s interest in protecting the potential life of the fetus great enough to warrant severe restrictions on abortion, and even then, the Court held, states must permit abortions to save a woman’s life. In the course of this analysis, Blackmun’s opinion stated that because of uncertainty about the medical and moral status of the fetus,
the states could not adopt a particular theory of when life begins—they could not decide, for example, that because life begins at conception, fetuses have the same rights as newborn infants.
Although Chief Justice Warren Burger’s concurring opinion denied that Roe had established a right to abortion on demand, that was its practical effect. Justices Byron White and William Rehnquist, in separate dissents, criticized the Court for enforcing a right not specified in the Constitution to overturn statutes that were no more restrictive than those widely in force when the Fourteenth Amendment was adopted. In addition, they criticized the Court for the trimester framework, which, in their view, was arbitrary. If the state had an interest in protecting the potential life of the fetus, that interest existed, and was equally strong, through the entire pregnancy. Further, they said, the Court’s balancing of competing interests and careful laying out of what doctors could do in various circumstances resembled a statute.
Three justices appointed by President Richard Nixon joined the majority in Roe, whose outcome appears to be inconsistent with the sort of “strict construction” of the Constitution that they were said to support. In political terms, Roe is probably best understood as part of the Court’s attempt to respond to and develop support within an important emerging constituency, the organized women’s movement. Although the opinion did not treat the issue as one of gender discrimination, there were plainly questions of gender at stake in the abortion controversy, for it was widely understood that the burdens of undesired pregnancy fell exclusively on women. Restrictive abortion laws have typically been enacted by legislatures dominated by men. This practice could have been treated as raising questions of gender discrimination. The Court’s failure to present its opinion on these grounds may have been a serious tactical error, for the flaws of Blackmun’s privacy analysis, employing a newly discovered constitutional “right,” were widely noted after Roe was decided.
Criticism and Aftermath of Roe. Academic critics of Roe argued that invalidating legislation where there was no constitutional text or history to indicate that the legislation contravened fundamental values protected by the Constitution was reminiscent of the *Lochner v. New York era, when the Court invalidated many statutes aimed at improving the economic conditions of workers on the ground that the statutes violated a “liberty of contract” nowhere spelled out in the Constitution.
Critics also pointed out that, given the acknowledged impact of abortion on the fetus and the medical dimensions of the technique, it was silly to treat the case as one involving “privacy” in the way that Griswold, which was about the use of contraceptives, involved actions performed in the privacy of the home. Academic defenders of Roe offered two lines of argument. Some suggested that the case should be reconceptualized as a case of gender discrimination, which, they argued, was indeed barred by the Equal Protection Clause of the Fourteenth Amendment. Others agreed that Roe resembled Lochner but argued that the vice of Lochner was not that it enforced values not found in the constitutional text but that it enforced values that were not fundamental according to any well-developed theory of rights, whereas the right to privacy, or to personal autonomy in sexual matters, was fundamental under many uncontroversial versions of liberal political theory.
Roe was even more controversial among the public. It generated a substantial “right to life” movement that lobbied legislatures to adopt regulations that went as far as possible within the Roe framework to restrict the availability of abortions and was particularly influential in gaining power within the Republican party, whose presidential candidates in the 1980s agreed not to appoint judges who were sympathetic to the constitutional analysis adopted in Roe. The Court adhered to the Roe analysis for the next decade, but in several important cases it upheld legislative attempts to restrict a woman’s right to choose an abortion. Perhaps the most important early such decision was *Harris v. McRae (1980), which held that Congress did not violate the Constitution when it prohibited the use of Medicaid funds to pay for nontherapeutic abortions. In an earlier decision, Maker v. Roe (1977), the Court had held, similarly, that the states were not required to fund abortions for indigent women. (Most states do not fund nontherapeutic abortions), A predicted likely effect of these decisions was the return to the situation that prevailed before Roe, in which women who could afford them secured abortions relatively easily, while women without means were forced to rely on illegal abortions or, like Jane Roe, left to carry their unwanted pregnancies to term. The actual impact of Harris, however, is uncertain, since despite the absence of public funding legal abortions rose steadily until reaching the present (1991) plateau of about 1.6 million abortions annually. Private charitable sources now fund a majority of those abortions.
Other restrictions the Court upheld were requirements regarding record-keeping about abortions and regulations requiring the notification of the parents of a minor woman seeking an abortion unless the woman could show a court that notifying the parents was inappropriate. The Court, however, did strike down requirements of parental and spousal consent as well as a variety of regulations designed to make the decision to have an abortion more difficult (e.g., * Akron v. Akron Center for Reproductive Health, 1983; *Thornburgh v. American College of Obstetricians & Gynecologists, 1986). The retirements of Burger and Stewart, both of whom were in the majority in Roe, gave President Ronald Reagan the opportunity to begin to reshape the Court’s position on the abortion issue, but it was the retirement of Justice Lewis Powell in 1987 that provided the greatest opportunity for change. Reagan nominated Judge Robert Bork to succeed Powell, in part because of Bork’s vigorous and well known opposition to Roe. That opposition was a source of great concern to supporters of Roe, who formed an important part of the political coalition that defeated Bork’s nomination.
In 1989 the Court, with Justice Anthony Kennedy sitting in an abortion case of the first time, came close to overruling Roe in *Webster v. Reproductive Services, but in the end a majority of the justices held only that two additional restrictions on abortions were relatively minor extensions of what Roe itself allowed. Partisans on both sides of the abortion issue, however, took Webster as a signal that further political action was appropriate. Abortion rights activists, in particular, realized that the right to choose abortion might no longer be adequately protected in the courts, and they revived the sort of political lobbying in which they had engaged prior to Roe. The most significant threat to Roe emerged in the 1992 case of ^Planned Parenthood of Southeastern Pennsylvania v. Casey. A deeply and bitterly divided Court sustained the Pennsylvania law placing certain restrictions on access to abortions, but the justices refused to overturn the Roe precedent. Justice Sandra Day O’Connor’s opinion reaffirmed that a woman has a constitutional right to an abortion before the fetus attains viability at roughly six months of pregnancy. In the wake of Casey, antiabortion groups turned to new tactics designed to harass persons attempting to use abortion clinics and those who worked in them. The justices in National Organization of Women v. Scheidler (1994) held that abortion clinics could deal with these tactics by invoking the Federal Racketeering law (RICO) to sue violent antiabortion protest groups for damages.