• Last updated on November 11, 2022

The Supreme Court ruled that a woman has a constitutional right to terminate an unwanted pregnancy before the fetus acquires viability and that a fetus is not a person under the Fifth and Fourteenth Amendments.

By the early 1970’s, a great deal of controversy had arisen about abortion laws. The majority of states permitted abortions only when necessary to save the life of the pregnant woman. Some sixteen states allowed abortions under other circumstances, such as pregnancies resulting from rape and incest. In 1970 three states enacted liberal laws that allowed some form of abortion on demand. As American culture placed greater emphasis on individual freedom, the number of illegal abortions appeared to be growing, often using primitive methods in unsanitary conditions. With the revitalized feminist movement, the right to terminate unwanted pregnancies was increasingly defined as an issue of gender equality.Abortion;Roe v. Wade[Roe v. Wade]

The Supreme Court gradually accepted the theory of a constitutionally protected right to generic privacy, emphasizing personal choice in marriage, child rearing, and procreation. The Court significantly expanded privacy rights in Griswold v. Connecticut[case]Griswold v. Connecticut[Griswold v. Connecticut] (1965), which struck down a state law prohibiting the sale of contraceptives. The Griswold majority located the right to privacyPrivacy, right to in three main places: the “penumbras” of the Bill of Rights, the substantive “liberty” protected by the FifthFifth Amendment and Fourteenth AmendmentsFourteenth Amendment, and the unenumerated rights of the Ninth AmendmentNinth Amendment. In Eisenstadt v. Baird[case]Eisenstadt v. Baird[Eisenstadt v. Baird] (1972), the Court explicitly recognized that the right to privacy included an individual’s reproductive freedom. Although Eisenstadt specifically dealt with the right to use contraceptives, the language in the majority’s opinion appeared broad enough to subsume the abortion issue.

Two Cases

In 1969 Norma McCorvey, an unmarried pregnant woman living in Texas, was unhappy to discover that the state criminalized abortions except when necessary to protect the life of the woman. She consulted two attorneys, Sarah Weddington and Linda Coffee, who were young and energetic feminists strongly dedicated to the cause of reproductive freedom for women. McCorvey, using the pseudonym Jane Roe, filed a class-action suit in federal court against Dallas district attorney Henry Wade, asking for an injunction to stop enforcement of the abortion law. A three-judge district court declared the Texas law unconstitutional but refused to issue an injunction because the constitutional issue remained unresolved. Weddington and Coffee, assisted by the American Civil Liberties UnionAmerican Civil Liberties Union (ACLU), appealed the case directly to the Supreme Court in 1971. That same year, Doe v. Bolton[case]Doe v. Bolton[Doe v. Bolton], challenging Georgia’s less restrictive abortion law, was also appealed to the Court.

When the Court agreed to hear the two abortion cases, numerous pro-choice and pro-life organizations presented amici curiae briefs. On December 13, 1971, the Court, composed of only seven justices, heard oral arguments on the cases. At conference three days later, at least four of the justices agreed that the laws of Texas and Georgia were unconstitutional, but there was almost no agreement about the constitutional rationale or about whether the woman’s right to an abortion would apply to the entire period of the pregnancy. The chief justice assigned the cases to Justice Harry A. Blackmun. Six months later, Blackmun circulated a first draft that ruled only on the narrow issue of vagueness. For several reasons, the cases were reargued before a nine-member Court on October 11, 1972.

A Right to Privacy

By a 7-2 vote, the Court struck down the abortion laws of Texas and Georgia. Speaking for the majority, Justice BlackmunBlackmun, Harry A.;Roe v. Wade[Roe v. Wade] declared that a right to privacy, which derives primarily from the “concept of personal liberty” in the due process clause of the Fourteenth Amendment, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Her right to an abortion, although a fundamental right, is not unqualified and must be considered in relation to the state’s important and legitimate interests in protecting maternal health and the “potentiality of human life.”

Blackmun’s opinion outlined abortion rights in three trimesters. During the first three months of pregnancy, the abortion decision is entirely a private decision left up to the woman. After the end of the first trimester, the state may regulate procedures “in ways that are reasonably related to maternal health.” After the second trimester, as the fetus acquires the ability to survive independently of its mother, the state may proscribe abortions except when necessary “for the preservation of the life or health of the mother.” Presenting a survey of the historical record, Blackmun concluded that abortion laws at common law and throughout the nineteenth century had been less restrictive than those in effect in 1973. Finally, he concluded that there was no evidence that the word “person” in the Constitution referred to prenatal life.

Justices Byron R. White and William H. Rehnquist dissented. White criticized the Court for giving greater value to the “convenience” of the pregnant woman than to “the continued existence and development of the life or potential life that she carries.” Finding the constitutional issues ambiguous, he wrote that the matter “should be left with the people and to the political processes the people have devised to govern themselves.” Justice Rehnquist wanted to evaluate abortion laws according to the rational basis test rather than the stricter compelling interest test. Observing that the majority of states had restrictive abortion laws on the books when the Fourteenth Amendment was ratified, he could find no evidence that the right to an abortion was “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Roe was one of the most controversial decisions in the history of the Court. As the Court became more conservative in the 1980’s, a bare majority of the justices continued to uphold the woman’s right to an abortion before viability, but they increasingly allowed state and local governments to place restrictions on abortion practices. In Planned Parenthood of Southeastern Pennsylvania v. Casey[case]Planned Parenthood of Southeastern Pennsylvania v. Casey[Planned Parenthood of Southeastern Pennsylvania v. Casey] (1992), a highly fragmented Court abandoned the trimester framework and accepted an “undue burden” standard for determining whether regulations were acceptable.

Further Reading
  • Baird, Robert M., and Stuart E. Rosenbaum, eds. The Ethics of Abortion: Pro-Life v. Pro-Choice. Amherst, N.Y.: Prometheus, 2001.
  • Dworkin, Ronald. Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom. New York: Alfred A. Knopf, 1993.
  • Faux, Marian. “Roe v. Wade.” New York: New American Library, 1988.
  • Garrow, David. Liberty and Sexuality: The Right to Privacy and the Making of “Roe v. Wade.” New York: Macmillan, 1994.
  • Hull, N. E. H., and Peter Charles Huffer. “Roe v. Wade”: The Abortion Rights Controversy in American History. Lawrence: University of Kansas Press, 2001.
  • Lively, Donald E., and Russell L. Weaver. Contemporary Supreme Court Cases: Landmark Decisions Since “Roe v. Wade.” Westport, Conn.: Greenwood Press, 2006.
  • Tribe, Lawrence. Abortion: The Clash of Absolutes. New York: W. W. Norton, 1990.
  • Williams, Mary E., ed. Abortion: Opposing Viewpoints. San Diego: Greenhaven Press, 2002.


Birth control and contraception

Due process, substantive

Eisenstadt v. Baird

Fetal rights

Fundamental rights

Gender issues

Judicial scrutiny

Privacy, right to

Rust v. Sullivan

Webster v. Reproductive Health Services

Categories: History