The decision in Roe v. Wade struck down states’ restrictions on a woman’s ability to obtain an abortion and generated an ongoing controversy concerning reproductive choice.
Restrictions on a woman’s decision to terminate a pregnancy emerged in the mid-nineteenth century in the United States. Prior to that time, English common law attitudes, which prohibited abortion after “quickening,” the point at which the pregnant woman could feel fetal movement, were occasionally and irregularly enforced. The growing organized medical profession began a campaign to criminalize abortion at any point after conception and to discourage home remedies and midwives, who, despite a lack of formal medical training, usually assisted at abortions.
The rhetoric of the antiabortion campaign expanded during the second half of the nineteenth century. The initial calls for restrictions on abortion to safeguard maternal health were buttressed, eventually, by moral condemnations of abortion as a threat to marriage, the institution of the family, and the proper role of women in society, since readily available abortions might encourage promiscuity and lead to a decline in the white middle class. Many of the early proponents of women’s rights supported these justifications for restrictions on reproductive choice. Early opponents of abortion rarely argued the position that the fetus was a person, entitled to rights. In any event, the campaign ultimately succeeded, and by 1890 antiabortion statutes had been enacted throughout the United States.
A reaction to this trend began to emerge in the 1960’s. Women and physicians again joined forces, this time to call for the reform of the restrictive laws and, ultimately, for their repeal. An effective birth control pill became widely available as women began to join the workforce in large numbers and to become politicized through participation in civil rights actions, the antiwar movement, and early women’s organizations. Physicians played a role in publicizing the physical danger faced by women who resorted to “back alley” abortions. Estimates of the number of illegal abortions during the 1960’s range from 200,000 to 1,200,000 annually. These developments, in conjunction with worries about a potential population explosion, began to change public attitudes. For many years, abortion had been a “dirty secret,” unworthy of public discussion and debate. By 1970, 60 percent of the American public believed that the choice to abort ought to be private. These attitudinal changes led to abortion rights reform in a number of states, including New York, California, Colorado, and Hawaii. It is against this background that the Supreme Court took up the issues presented in the 1973 Roe v. Wade case.
It is useful to view the majority opinion of the Roe case, authorized by Associate Justice Harry A. Blackmun and supported by six other Supreme Court justices, as an attempt to strike a balance between a woman’s unfettered choice to terminate a pregnancy (the “abortion on demand” position) and the state’s interest in regulations protecting the health of the mother and the well-being of the fetus. The Roe case came to the Supreme Court as a challenge to an 1859 Texas law which made it illegal to “procure an abortion” except when a physician certified that the abortion was necessary to save the life of the woman. Jane Roe, the appellant, challenged the Texas statute through a class-action suit in which she represented the interests of similarly situated women in Texas.
In Roe, Blackmun held that the choice to abort is a “fundamental right” of the woman. That right is anchored in the Fourteenth Amendment’s due process clause, which had been interpreted in earlier cases to establish a right of privacy in matters relating to marriage and childbearing. The Court considered the right to reproductive control to be fundamental, but not absolute. In instances involving a compelling state interest, legislatures may restrict the woman’s choice. Blackmun isolated two compelling state interests: the woman’s health and the well-being of potential life. The Court superimposed these competing interests—the woman’s fundamental right to choose and the state’s compelling interests in maternal health and the well-being of the fetus—on a trimester scheme, which divided pregnancy into three roughly equal time periods. During the first three months of pregnancy, the first trimester, choices concerning reproduction must be left to the woman, in consultation with a licensed physician. In months four through six, the state was given a very limited ability to restrict the woman’s choice: It could do so only to protect maternal health. As the fetus becomes viable, that is, can survive outside the womb, the state’s interest in regulating abortion becomes compelling. During the viability stage, the state may regulate or prohibit abortion entirely, except where the abortion procedure is necessary to preserve the life or health of the mother.
As a corollary matter, the Court also decided that a fetus is not a “person” under the Constitution. The tension, then, in Roe, as articulated by the Court, was not between fetus and mother. Rather, a balance was struck between the mother and the interests of the state in the later stages of pregnancy.
A strong dissent, penned by Justice William H. Rehnquist, took issue with several of the basic propositions of the majority opinion. It rejected the notion that the choice to abort is a privacy right, since a doctor and the fetus are involved, and accused the Court of ignoring the wishes of the states in striking down local restrictions on abortion.
On the same day that Roe was decided, the Court handed down its decision in the related Doe v. Bolton
State laws restricting abortions in ways prohibited by Roe and its companion case, Doe, were constitutionally invalid after 1973. The laws of some thirty-three states were affected.
The most immediate impact of the 1973 decisions was on the availability of legal abortions in the United States. About 500,000 abortions were performed in 1972 in states that had liberalized restrictions on abortion; by 1978, that number had more than doubled; by the late 1980’s, approximately 1.6 million legal abortions were performed in the United States annually; by the early twenty-first century, that number had dropped to about 1.3 million.
Public opinion on the abortion question had begun to change before Roe. By 1973, polls indicated that the majority of Americans approved of abortion in several circumstances: when the pregnancy results from rape, when the pregnancy seriously compromises the health of the mother, and when the fetus is defective. Those attitudes remained relatively consistent in the years after Roe. Support for abortion where the pregnant woman is poor, working, or unmarried, however, has been less strong. In such cases (which, in fact, represent the most common reasons given for the decision to abort a pregnancy), a smaller majority of Americans is in favor of reproductive choice.
Norma McCorvey, “Jane Roe” in the 1973 landmark case, later became an antiabortion advocate and spoke at many events. This photo was taken at a 1999 convention where McCorvey spoke in support of a Maine referendum to ban so-called partial-birth abortion.
Scholarly reaction to Roe has been mixed. Many conservative critics have disputed the morality of abortion, arguing that it is tantamount to murder. Others have objected to what they believe to be federal interference with state autonomy in the legislative process and have found unconvincing the privacy argument that undergirds the majority’s opinion.
More surprising, perhaps, is the criticism of the Court that has come from the other side of the political spectrum. Many who applaud the outcome of the Roe case in its protection of reproductive choice for women have been uneasy with the Court’s legal justification for that outcome. Some have commented on the legislative nature of the Court’s trimester scheme in the case. Others, exemplified by lawyer Catharine A. MacKinnon,
The impact of Roe in the political arena has been equally divisive. Antiabortion forces quickly grouped in the wake of the 1973 decision. The Roman Catholic Church
Pro-life groups have been extremely effective politically. These groups have been given a sympathetic hearing in some quarters in Congress. Since 1973, Congress enacted some twenty-five laws restricting federal funding for abortion procedures. Efforts have also been made to create a constitutional amendment reversing Roe and to remove abortion rights cases from the federal courts.
Similar organizational efforts in the pro-choice camp have occurred, notably under the auspices of the Planned Parenthood Federation of America,
The Supreme Court continued to wrestle with abortion matters after its Roe decision. Routinely since 1973, the Court affirmed its commitment to reproductive choice. Some two hundred bills were introduced in state legislatures in the year after Roe; inevitably, some of these measures restricting and limiting abortions gained legislative support and became the basis for continuing litigation in the Supreme Court. Restrictions requiring “informed consent,” waiting periods, the consent of the father, parental consent requirements for teenage girls, hospital reporting, and regulations concerning the location where second trimester abortions could be legally performed created indirect but powerful barriers to reproductive choice. When several conservative appointees joined the Court after Roe v. Wade, pro-choice activists feared that the Court now harbored a group willing to overturn Roe.
Roe, then, is likely to continue to serve as a lightning rod for controversy over abortion in the legal and political arenas. The case has figured prominently in scrutiny of Supreme Court nominees, indicating the strength of ongoing controversy over the abortion issue. More women are the sole breadwinners for their families; many others must take their places in the workforce to maintain an acceptable standard of living for the two-salary family. For women in these situations, an unwanted pregnancy can be disastrous financially and emotionally. Sexual patterns are also changing, with teenagers more sexually active than in the past. It is also the case that new technological developments are likely to intrude on the legal, political, and ethical arguments concerning abortion which have been heard since 1973.
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Balkin, Jack M., ed. What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision. New York: New York University Press, 2005. Eleven constitutional scholars rewrite the opinions in the landmark case using sources available at the time its decision. Authors take positions for and against the right to abortion. -
Butler, J. Douglas, and David F. Walbert, eds. Abortion, Medicine, and the Law. 4th rev. ed. New York: Facts On File, 1992. Good collection of essays explores the legal, medical, and ethical aspects of abortion. Includes selections by several prominent opponents of Roe, including Ronald Reagan and John T. Noonan, Jr. Also helpful is Tushnet’s survey of post-Roe legal developments. Includes full text of the Roe decision and index. -
Faux, Marian. Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision That Made Abortion Legal. New York: Macmillan, 1988. Detailed, nontechnical narrative of the events surrounding the Roe litigation. Follows the case through the court system. Includes bibliography and index. -
Hull, N. E. H., and Peter Charles Hoffer. Roe v. Wade: The Abortion Rights Controversy in American History. Lawrence: University Press of Kansas, 2001. Provides a complete legal history of abortion in the United States from colonial times to the early twenty-first century. -
Jaffe, Frederick S., Barbara L. Lindheim, and Philip R. Lee. Abortion Politics: Private Morality and Public Policy. New York: McGraw-Hill, 1981. Study of public policy developments related to abortion notes the failure of the U.S. health care system to respond to the need for abortion services, especially among the poor. Summarizes the views of assorted interest groups and public opinion on aspects of the abortion controversy. References and index. -
Mohr, James C. Abortion in America: The Origins and Evolution of National Policy, 1800-1900. New York: Oxford University Press, 1978. Standard scholarly study of the status of abortion in the nineteenth century in the United States traces the century-long process of the criminalization of abortion in state law back to efforts by American physicians to establish a monopoly over family medicine, to changing political currents, and to emerging class and ethnic biases. References, appendixes, and index. -
Rhode, Deborah L. Justice and Gender: Sex Discrimination and the Law. Cambridge, Mass.: Harvard University Press, 1989. Chapter 9, “Reproductive Freedom,” includes a brief discussion of responses to the reasoning of Roe and places the question of abortion in the context of legal attitudes toward women. References and index. -
Rodman, Hyman, Betty Sarvis, and Joy Walker Bonar. The Abortion Question. New York: Columbia University Press, 1987. An effort to provide a balanced review of the “moral positions” that shape pro-life and pro-choice arguments. Also describes the legal dimensions of the abortion debate. Includes appendix of state laws regulating abortion in 1973 and index. -
Tribe, Laurence H. Abortion: The Clash of Absolutes. Rev. ed. New York: W. W. Norton, 1992. One of the best volumes on the Roe decision and its aftermath for the general reader. The author, an eminent liberal constitutional scholar, includes a brief, enlightening discussion of the cases after 1973 and a survey of abortion practice in the United States and worldwide. Summarizes attempts to find a compromise position in the debate over abortion. References and index.
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