Legalizes Abortion and Extends Privacy Rights

The U.S. Supreme Court established a pregnant woman’s constitutional right to an abortion. The decision overturned abortion laws in most states and has occasioned decades of political controversy and litigation. Gays and lesbians have benefited from the reasoning in Roe v. Wade because the case has been used by some state courts to strike down sodomy or other statutes that impinge on private, same-gender sexual activities between consenting adults.

Summary of Event

Roe v. Wade (1973) sprang from the attempt of “Jane Roe” (Norma Jane McCorvey) to terminate her pregnancy by means of abortion in Texas in 1970. Texas law forbade abortion except “for the purpose of saving the life of the mother.” Roe’s life was not endangered by her pregnancy. With the encouragement of her attorney, Sarah Weddington, Roe decided to challenge the Texas statute on constitutional grounds. [kw]Roe v. Wade Legalizes Abortion and Extends Privacy Rights (Jan. 22, 1973)
[kw]Abortion and Extends Privacy Rights, Roe v. Wade Legalizes (Jan. 22, 1973)
[kw]Privacy Rights, Roe v. Wade Legalizes Abortion and Extends (Jan. 22, 1973)
[kw]Rights, Roe v. Wade Legalizes Abortion and Extends Privacy (Jan. 22, 1973)
Roe v. Wade (1973)[Roe v Wade]
Privacy rights
Abortion, legalization of
Supreme Court, U.S.;abortion
Supreme Court, U.S.;privacy
[c]Laws, acts, and legal history;Jan. 22, 1973: Roe v. Wade Legalizes Abortion and Extends Privacy Rights[0960]
[c]Civil rights;Jan. 22, 1973: Roe v. Wade Legalizes Abortion and Extends Privacy Rights[0960]
[c]Feminism;Jan. 22, 1973: Roe v. Wade Legalizes Abortion and Extends Privacy Rights[0960]
McCorvey, Norma Jane
Weddington, Sarah
Wade, Henry
Blackmun, Harry A.
White, Byron

A federal district court suit was brought against Henry Wade, the district attorney of Dallas County, asking that he be ordered not to enforce the Texas abortion statute on the ground that it unconstitutionally interfered with a pregnant woman’s right to personal privacy. The district court agreed with Roe, and Texas appealed to the U.S. Supreme Court. The case was first argued on December 13, 1971, reargued on October 11, 1972, and decided by the Court on January 22, 1973.

The fundamental issue in Roe v. Wade was whether “personal privacy” rights included the right of a woman to choose to have an abortion. By 1971, the Supreme Court had already extended the idea of “liberty” protected under the due process clause of the Fourteenth Amendment to include some marital and personal privacy rights. The most important precedent was Griswold v. Connecticut (1965), Griswold v. Connecticut (1965)[Griswold v Connecticut] the Connecticut birth-control case. A Connecticut law forbade the dissemination of birth-control devices or information. The Court decided that married people have a constitutional right to receive and use contraceptive devices and information. The same right was extended to unmarried people in Eisenstadt v. Baird (1972). In these cases the Court assumed for the first time that there is a “zone of privacy” that protects private family and sexual decisions.

The Court’s decision in Roe v. Wade was written by Justice Harry A. Blackmun for a 7-2 majority. Dissenting opinions were submitted by Justices William Rehnquist and Byron White. The majority held that a pregnant woman does have the right to an abortion on demand in the first trimester of pregnancy. In the second trimester, the state is free to place some restrictions on the right in order to protect the health of the mother. In the third trimester, after the child has “quickened,” the state may have the power to prohibit abortion altogether.

The majority opinion balances the interests of the state governments against the personal privacy rights of women. The state’s interest is to protect unborn life and the safety and health of pregnant women. Roe’s interest is what the Court called “the fundamental right of single women and married persons to choose whether to have children.” By tying the right to an abortion to the right to choose whether to have children, Blackmun brought the case more squarely within the precedent established by Griswold v. Connecticut. The decision substantially increased women’s autonomy both within and without the family.

The main dissenting opinion was submitted by Justice White. It argues that there is no constitutional warrant to establish a new constitutional right that substitutes a balancing of the competing values by the Court rather than by state legislatures. Roe v. Wade (1973)[Roe v Wade]
Privacy rights
Abortion, legalization of
Supreme Court, U.S.;abortion
Supreme Court, U.S.;privacy


The immediate or direct effect of Roe v. Wade was to empower women to avoid having unwanted children. Since the Supreme Court made its decision, there have been millions of abortions in the United States, a fact often cited by opponents of the decision.

Roe v. Wade continues to be enormously controversial. Since the case was decided, there have been constant efforts by its opponents to overturn it and by its supporters to protect the rights it establishes. The passions raised by this case have led to violence and harassment. Several physicians have been shot to death or beaten, and there have been many bombings and arson attacks at family planning clinics. The issue has been before the Supreme Court in one form or another in nearly every Court term since 1973. Because the decision in the case appeared to many people to be political rather than judicial in character, there have been many marches or demonstrations at the Supreme Court itself.

The reasoning of Roe v. Wade and the precedent it established have often been cited, sometimes successfully, to support or establish other rights of personal privacy. Gays and lesbians have benefited from Roe v. Wade, whose reasoning has been used by some state courts to strike down sodomy or other statutes that impinge on private, consensual, same-gender sexual activities between adults. In fact, the Supreme Court struck down state sodomy laws as unconstitutional with its 2003 ruling in Lawrence v. Texas.

Further Reading

  • Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. Updated ed. Berkeley: University of California Press, 1998.
  • Gorney, Cynthia. Articles of Faith: A Frontline History of the Abortion Wars. New York: Simon and Schuster, 2000.
  • Gruen, Lori, and George E. Panichas, eds. Sex, Morality, and the Law. New York: Routledge, 1997.
  • Hull, N. E. H., and Peter Hoffer. Roe v. Wade: The Abortion Rights Controversy in American History. Lawrence: University Press of Kansas, 2001.
  • Rubin, Eva R. Abortion, Politics, and the Courts: Roe v. Wade and Its Aftermath. New York: Greenwood Press, 1987.
  • Schwarzenbach, Sibyl A., and Patricia Smith, eds. Women and the United States Constitution: History, Interpretation, and Practice. New York: Columbia University Press, 2003.
  • Weddington, Sarah. A Question of Choice. New York: Putnam, 1992.

January 12, 1939: Thompson v. Aldredge Dismisses Sodomy Charges Against Lesbians

1952-1990: U.S. Law Prohibits Gay and Lesbian Immigration

May 22, 1967: U.S. Supreme Court Upholds Law Preventing Immigration of Gays and Lesbians

June 21, 1973: U.S. Supreme Court Supports Local Obscenity Laws

August, 1973: American Bar Association Calls for Repeal of Laws Against Consensual Sex

November 17, 1975: U.S. Supreme Court Rules in “Crimes Against Nature” Case

1981: Gay and Lesbian Palimony Suits Emerge

1982-1991: Lesbian Academic and Activist Sues University of California for Discrimination

1986: Bowers v. Hardwick Upholds State Sodomy Laws

May 1, 1989: U.S. Supreme Court Rules Gender-Role Stereotyping Is Discriminatory

December 17, 1991: Minnesota Court Awards Guardianship to Lesbian Partner

1992-2006: Indians Struggle to Abolish Sodomy Law

1993-1996: Hawaii Opens Door to Same-Gender Marriages

September 21, 1993-April 21, 1995: Lesbian Mother Loses Custody of Her Child

December 20, 1999: Baker v. Vermont Leads to Recognition of Same-Gender Civil Unions

June 28, 2000: Boy Scouts of America v. Dale

June 26, 2003: U.S. Supreme Court Overturns Texas Sodomy Law