A Brief History
On December 13, 1971, the Supreme Court of the United States (SCOTUS) heard arguments in a lawsuit by Norma McCorvey (known as “Jane Roe” for the purposes of the lawsuit) against the Dallas County (Texas) Attorney, Henry Wade in the landmark American court case about the subject of a woman’s right to seek an abortion, ending an unwanted pregnancy. The case is formally knowns as Roe v. Wade, 410 U.S. 113 (1973) and ever since the decision was handed down in January of 1973 the case has been a topic of heated debate between “Pro-Life” (aka, anti-abortion) advocates and “Pro-Choice” (aka, freedom to seek legal abortion) advocates. Roe v. Wade has been perhaps the most contentious decision in the history of SCOTUS. Some of the other hotly debated Supreme Court decisions of the past have faded in time to acceptance by most Americans (Dred Scott, Brown v. Board of Education, etc.) but Roe v. Wade is a case that seems to be contested by states on a more or less continuous basis. So what does this case actually entail?
Prior to the landmark decision that ruled a woman has a right to end a pregnancy during the first trimester of her pregnancy, American women were largely confined to seeking abortions in special clinics, often illegal and far from the normal hospital environment other surgeries would be conducted in, or even “back alley” abortions crudely conducted in an unsanitary private home or the back room of a business. Such unregulated abortions were often conducted without the normal emergency facilities and personnel needed if anything went wrong, which resulted in the death or severe illness of the woman involved. Some doctors made a lucrative business of conducting illegal abortions.
McCorvey had found herself with an unwanted pregnancy in 1969, after already having 2 children. She and her husband did not want any more children, so McCorvey attempted to manipulate the Texas law that she thought allowed abortion only in cases of rape, incest, or grave danger to the mother. (She was wrong, Texas law only permitted abortion in cases related to deadly consequences for the mother if the procedure was refused.) Either way, since she did not have any corroborating police reports to back up her false story, she could not find a legitimate hospital to perform an abortion. An attempt to seek satisfaction at an illegal abortion clinic failed when the clinic was shut down before McCorvey could have the abortion. She then sought legal representation and sued the Dallas County Attorney for failing to allow her 14th Amendment rights concerning Due Process and privacy under the US Constitution. The case of course could not possibly be decided in time for her to get a legal abortion, and she was forced to bear the child, though the family gave the baby up for adoption.
The Supreme Court heard the case and ultimately decided it in McCorvey/Roe’s favor by a 7-2 vote, though they ruled only that an abortion was a legal right only during the first trimester of pregnancy. Later, in Planned Parenthood v. Casey (1992) SCOTUS ruled that abortion was legal until the fetus was “viable” outside the womb, meaning that the baby could survive if born at the time the abortion was performed. The Planned Parenthood case presented its own series of hotly debated points as the ever evolving medical profession made early births “viable” at an earlier and earlier stage as time went on, creating another round of debate.
Not only was a significant portion of the US population highly upset over the Roe decision, largely on religious or moral grounds (notably the Catholic Church and Fundamentalist Christians and Evangelical Christians), a large portion of the legal profession also decried the decision as being “activist” and not proper. Some legal scholars have complained that the decision did not properly address the important issues involved at all. The dissenting Justices, White and Rehnquist, failed to see the connection between the 14th Amendment vis-à-vis the intent of the Founding Fathers and the decision, and they made the following statements in disagreement with the decision:
White: “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”
Rehnquist: “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.”
A rallying event for the Women’s Liberation Movement, Roe v. Wade also became a major pillar in the Republican and Democratic Parties’s party platforms, with the Republicans calling for repeal of the decision and Democrats championing the “Freedom of Choice” allowed by the decision.
Ever since the monumental decision was handed down in 1973, many states and sometimes Congressional delegations have sought to find any way possible to undermine the decision of the Supreme Court by enacting laws that made either running an abortion clinic or seeking an abortion ridiculously difficult, a de facto ban on abortion. Even worse (to the Pro-Choice crowd) anti-abortion fanatics have frequently engaged in violent acts toward abortion clinics, their employees, and women seeking abortions, even to the point of murder and bombings.
We respectfully decline to enter into an argument either for or against the decision reached in Roe v. Wade but invite our readers to comment and discuss the issues concerning the abortion related court cases and the “right” to have an abortion or not.
Questions for Students: Due to the highly contentious nature of the subject matter, we will not ask our students to comment on the subject, although voluntary comments are of course permitted.
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For more information, please see…
Forsythe, Clarke. Abuse of Discretion: The Inside Story of Roe v. Wade. Encounter Books, 2013.
McCorvey, Norma and Andy Meisler. I Am Roe: My Life, Roe V. Wade, and Freedom of Choice. HarperCollins, 1994.
Ziegler, Mary. Beyond Abortion: Roe v. Wade and the Battle for Privacy. Harvard University Press, 2018.
The featured image in this article, a photograph from the Official website of US Congressman Albert Wynn of Rep. Albert Wynn (left) joining Gloria Feldt (right), President of the Planned Parenthood Federation of America, on the steps of the Supreme Court, to rally in support of the pro-choice movement on the Anniversary of Roe v. Wade, originally at http://www.wynn.house.gov/display2.cfm?id=3274&type=Wynn%20In%20Action (currently available from archive.org), is in the public domain in the United States because it is a work prepared by an officer or employee of the United States Government as part of that person’s official duties under the terms of Title 17, Chapter 1, Section 105 of the US Code.