Roe v. Wade

Background

History of abortion laws in the United States

Abortion was a fairly common practice in the history of the United States, and was not always a public controversy. At a time when society was more concerned with the serious consequences of women becoming pregnant out of wedlock, family affairs were handled out of public view. The criminality of abortion at common law is a matter of debate by historians and legal scholars.

In 1821, Connecticut passed the first state statute legislating abortion in the United States; 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. The practice of abortion was one of the first medical specialties, 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; by the end of 1883, 30 of the 37 states, six of the ten U.S. territories, and the Kingdom of Hawaiʻi, where abortion had once been common, 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.

In the United States, before specific statutes were made against it, abortion was sometimes considered a common law offense, such as by William Blackstone 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 rights from common law did not apply in situations caused by consensual or voluntary behavior, which allowed for abortions of fetuses conceived in a consensual manner to be common law offenses. The majority opinion for Roe v. Wade authored in Justice Harry Blackmun'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 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 laws in effect in a majority of States today are of relatively recent vintage".

History of the case

Sarah Weddington recruited Linda Coffee to help her with abortion litigation. Their first plaintiffs were a married couple; they joined after the woman heard Coffee give a speech. The intended suit would state that 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." 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.

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 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.

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", and they also filed Does v. Wade on behalf of the married couple. The defendant for both cases was Henry Wade, who represented the State of Texas as the Dallas County District Attorney. 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.

On June 2, 1970, three months after the lawsuit was filed, McCorvey gave birth to a daughter at Dallas Osteopathic Hospital; the baby was adopted by a couple in Texas three days after her birth, and was raised as Shelley Lynn Thornton.

Hearing the case

Postponement

Roe v. Wade reached the Supreme Court when both sides appealed in 1970. It bypassed the Court of Appeals for the Fifth Circuit because 28 USC § 1253 authorizes a direct appeal to the Supreme Court in cases concerning the granting or denial of a civil injunction decided by a three judge panel.

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.

Another case was United States v. Vuitch, in which they considered the constitutionality of a District of Columbia 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 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 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 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 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 and John Marshall Harlan II retired. Chief Justice Warren Burger asked Justice Potter Stewart 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 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 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". 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; abortion rights lawyer Margie Pitts Hames 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, 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 subject of 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.

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 in Minnesota, where he had worked in the 1950s. He talked daily on the phone with George Frampton, 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. 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 to NARAL. In the articles, Means misrepresented the common law tradition in ways that were helpful to the Roe side. 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.

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 to have an abortion without excessive government restriction and striking down Texas's abortion ban as unconstitutional. The decision was issued together with a decision in a companion case, Doe v. Bolton, which involved a similar challenge to Georgia's abortion laws.

Larry Hammond, a law clerk for Powell, gave a Time reporter a copy of the decision "on background", 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's 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

Justice Harry Blackmun authored the opinion of the Court—the "majority opinion"—and was joined by six other justices: Chief Justice Warren Burger and Justices Brennan, Powell, Potter Stewart, William O. Douglas, and Thurgood Marshall.

After reciting the facts of the case, the Court's opinion first addressed several legal questions involving procedure and justiciability. These included mootness, 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 seldom will survive much beyond the trial stage, and appellate review will be effectively denied."

After dealing with mootness and standing, the Court proceeded to the main issue of the case: the constitutionality of Texas's abortion law. The Court first surveyed the status of abortion throughout the history of Roman law and the English and early American common law. It also reviewed the developments of medical procedures and technology used in abortions.

Following its historical surveys, the Court introduced the concept of a constitutional "right to privacy" that it said had been intimated in earlier decisions such as Meyer v. Nebraska and Pierce v. Society of Sisters, which involved parental control over childrearing, 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 and its guarantees of liberty covered a right to privacy that protected a pregnant woman's decision whether to abort a pregnancy.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether to terminate her pregnancy.

Reception

There was a strong response to the decision shortly after it was issued. The Catholic Church condemned the ruling. Prominent organized groups that responded to Roe include the 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 legal scholar Ronald Dworkin described it as "undoubtedly the best-known case the United States Supreme Court has ever decided."

Support for Roe and abortion rights

In the 1960s, there was an alliance between the population control movement and the abortion-rights movement in the United States. Abortion rights were especially supported by younger women within the population control 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's Population Council both publicly supported abortion rights following Roe. Previously, public support for abortion rights within the population control movement instead came from less established organizations such as Zero Population Growth. An exception was Planned Parenthood-World Population, 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. H. Rap Brown denounced abortion as "black genocide", and Dick Gregory 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 in Bucharest, 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. 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. 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."

Opposition to Roe

The Catholic Church condemned the ruling by the Supreme Court. Blackmun wrote in his diary, "Abortion flak—3 Cardinals—Vatican—Rochester wires!"

John Cardinal Krol, the archbishop of Philadelphia who was also the president of the United States Conference of Catholic Bishops and Terence Cardinal Cooke, the archbishop of New York, both issued statements condemning the ruling. Krol called the ruling "an unspeakable tragedy for this nation" that "sets in motion developments which are terrifying to contemplate." Cooke called the decision a "horrifying action" and added:

How many millions of children prior to their birth will never live to see the light of today because of the shocking action of the majority of the United States Supreme Court today?

Some supporters of abortion rights oppose Roe v. Wade on the grounds that it laid a foundation for abortion in civil rights rather than in human rights, 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", 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. 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.

Responses within the legal profession

Liberal and feminist 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. Another is that the end achieved by Roe does not justify its means of judicial fiat.

David Garrow 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, 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.

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."

Justice John Paul Stevens, 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 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, which upheld restrictions on Medicaid abortion funding, she said:

Later responses by those involved

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."

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." 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."

In 1992, he stood by the analytical framework he established in Roe during the subsequent Casey case. He often gave speeches and lectures promoting Roe v. Wade and criticizing Roe's critics.

Subsequent judicial developments

Roe was 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 (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. 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." 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. 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." 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.

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 and wrongful life 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, 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.

Prior to Roe, the Chancery Division of the Superior Court of New Jersey found that a pregnant Jehovah's Witness woman could be ordered to submit to lifesaving blood transfusions due to the state's compelling interest "to save her life and the life of her unborn child." The Court appointed a legal guardian 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.

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 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, 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". 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 (1992), an initial majority of five justices (Rehnquist, White, Scalia, Kennedy, and Thomas) 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 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. Prior to this, he had considered a Pennsylvania viability-based law to be unconstitutionally vague in his majority opinion for Colautti v. Franklin.

Justice Scalia's dissent asserted that abortion is not a liberty protected by the Constitution for the same reason bigamy was not protected either: because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed. 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 enacted a law banning partial-birth abortion. The law allowed another second-trimester abortion procedure known as dilation and evacuation. In 2000, the Supreme Court struck down the law by a 5–4 vote in Stenberg v. Carhart, with Justice Stephen Breyer 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 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.

Gonzales v. Carhart

In 2003, Congress passed the Partial-Birth Abortion Ban Act, 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 and Justice Samuel Alito 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 but that the question was not raised.

Justice Ginsburg, joined by Justices Stevens, Souter, 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 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. 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, 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 at a local hospital and required abortion clinics to have facilities equivalent to others which conducted outpatient surgery. On June 27, 2016, the Supreme Court in a 5–3 decision for Whole Woman's Health v. Hellerstedt struck down these restrictions.

The majority opinion by Justice Breyer struck down these two provisions of Texas law in a facial 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 purposes. In its unsigned 2019 ruling for Box v. Planned Parenthood of Indiana and Kentucky, Inc., 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 concurrence.

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 echoed the views of the eugenics 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 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 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 the state from enforcing the law after the state's only abortion clinic, Jackson Women's Health Organization, 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 released a leaked first draft of a majority opinion written by Justice Samuel Alito, 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 in a statement described its release as a "betrayal of the confidences of the Court". The leaked draft regarding the decision sparked protests.

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, Elena Kagan, and Sonia Sotomayor 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, Ronald Reagan, George W. Bush, and Donald Trump. President George H. W. Bush also opposed Roe, though he had supported abortion rights earlier in his career.

President Richard Nixon 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 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 and Barack Obama. 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, Partial-Birth Abortion Ban Act, Born-Alive Infants Protection Act, Unborn Victims of Violence Act, Interstate Abortion Bill, No Taxpayer Funding for Abortion Act, Pain-Capable Unborn Child Protection Act, Partial-Birth Abortion Ban Act of 1995, Sanctity of Human Life Act, Sanctity of Life Act, Hyde Amendment, Freedom of Access to Clinic Entrances Act, and the Baby Doe Law.

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 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.

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. 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 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 laws 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. 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 of the United States District Court for the Southern District of Mississippi 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 upheld the injunction against part of the law, with Judge Emilio M. Garza 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.

Legacy

Effects of legalization

Roe v. Wade caused a 4.5% decline in births in states that had not previously legalized abortion. Although the legalization of abortion in the United States increased the labor supply 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 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. Another hypothesis is the Roe effect, 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. Critics have argued that Donohue and Levitt's methodologies are flawed and that no statistically significant relationship between abortion and later crime rates can be proven.

Opinion polls

Into the 21st century, polls of Americans' opinions about abortion indicated they are about equally divided. Several organizations, among them Gallup, Pew Research Center, and Harris Insights & Analytics, conduct abortion or Roe v. Wade-related polls. Regarding the Roe decision as a whole, more Americans supported it than supported overturning it. 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/Washington Post 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, compared to 54.9% without children. After the Supreme Court's decision in June 2022 to overturn Roe v. Wade, a new CBC News/YouGov 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. A January 2023 Gallup poll found that nearly 7 in 10 Americans disapprove of the country's abortion policies, the highest rate in 23 years.