Updated: Jan 21, 2021
By Yashavi Prakash
Image via ABC News
Jane Roe and Henry Wade
In 1969, Texan woman Norma McCorvey sought to terminate an unwanted pregnancy. At that time, Texas arguably had the strictest anti-abortion laws in the country, so even if you were a documented victim of rape or incest, you wouldn’t have an abortion unless it was used to save your life.
Many American women who were restricted by such laws resorted to “back-alley” abortions, self-induced abortions or overseas abortions if they had the financial means to do so. Because McCorvey lived in tough, impoverished circumstances, the last option was out of reach, as it was for many other women. She tried to get an illegal abortion twice, but remained unsuccessful, and was instead referred to Texas attorneys Sara Weddington and Linda Coffee to challenge the anti-abortion laws set by Henry Wade.
First Attempts at Making a Case
In March of 1970, McCorvey sued the United States District Court of the North District of Texas under the name Jane Roe. Her case was what Professor Helen Alvaré of Antonin Scalia Law School called “a perfect state of facts” because it presented a sympathetic case under the claim that McCorvey was raped, although we now know that was not true. Despite this, the case was disposed of on summary judgement deeming this case unnecessary, and there was no evidentiary record of the case from the trial court.
The case was then put before a three-judge panel in the United States District Court for the Northern District of Texas, and there was a unanimous decision to strike down the Texas law. Without hesitation, the plaintiffs immediately took the case to the Supreme Court. The initial procedural question that the Supreme Court accepted the case on was whether a doctor facing criminal prosecution could access federal courts and claim they had a federal Constitutional right to provide abortion services to women. In other words, the initial questions was whether the Constitution gave doctors the right to provide abortion services.
Unexpected Turn in the Case
The case was interestingly argued twice before the Supreme Court. In between accepting the case and arguing the case, the Supreme Court panel was reduced to 7 justices as Justices Hugo Black and John Marshall Harlan II retired. However, a couple of the justices were extremely committed to taking on an abortion case, and wanted an opportunity to address whether or not there was a Constitutional right to abortion. In Roe’s first appearance before the Court, her counsel attempted to make an argument that she did in fact have the Constitutional right to abortion itself; however, the panel rejected this argument because they simply didn’t see this as the issue. From the perspective of many judges and justices across the country, the split in abortion rights wasn’t about whether a woman had a right to make a decision about abortion, but instead whether that right to choose could be restricted to save the life of unborn children.
While preparing the drafts of the decision, President Richard Nixon nominated Justice Rehnquist and Justice Powell to the Supreme Court. Because this was seen as a momentous case, it was decided that the case should be argued again before a full court, so Roe’s second appearance before the Supreme Court was in the fall of 1972. Between the first argument and the second argument, the initial procedural question changed from whether the Constitution gave doctors the right to provide abortion services to a broader question of whether there was a Constitutional right to abortion at all.
An Opening for the Court to Discuss the Right to Privacy Before the Second Argument
Kimberly Mutcherson, Co-Dean and Professor of Law at Rutgers Law School, stated, “privacy is a bit of a lightning rod… because it is not clearly established in the Constitution.” Teresa Tanton Collett, Professor of Law at University of St. Thomas School of Law, furthers this statement by claiming that:
“Locational privacy is clearly in the text of the Constitution, and I think it’s fair to say that freedom of thought has a privacy element to it. Then we move to this decisional privacy, which is the right to make decisions without the government directing the outcome of the decision-making process. And then we get to the right to act on the decision, regardless of the community’s beliefs that that action is contrary to the public good or contrary to what we would call state interest.”
The first opinion that suggested that there was a fundamental right to privacy was Griswold v Connecticut (1965) that held that married couples have a right to use contraception with a doctor’s prescription because it recognized this decision as an intimate, private decision that no government has the right to intrude on. Griswold vs Connecticut made their case on the claim that married couples have a right of privacy that endures in marriage that occurs in the marital bedroom where the government had no right to interfere. Soon after, Eisenstadt vs Baird was filed challenging the holding that only married people should have the right to access contraception. Eisenstadt vs Baird had made their case on the claim that there was a Constitutional right to privacy where people can make personal and intimate decisions that are important to them.
Because the court had heard the arguments in Griswold and Eisenstadt, there was now a new opening for Roe to suggest that the right to privacy can also apply to the right of deciding whether or not a woman wants to have a child.
The State of Texas disregarded the historical record and argued that there was, in fact, “no basis in the Constitution itself for a right to abortion”, and made a huge argument that states must regulate abortion. From Texas’ perspective, they were mostly concerned about making this case a states’ rights issue, and an issue about the obligation to protect those who cannot protect themselves, which were the unborn children.
The Blackmun Opinion
Justice Blackmun spent some time in the Mayo Clinic library and involved himself in the medical profession to write the opinion for this case. Many elite groups at the time believed that it was time to end the criminalization of abortion, and many justices as citizens and intellectuals believed that as well.
As Linda Greenouse, Lecturer in Law at Yale Law School, pointed out, this wasn’t a decision “about the rights of women; it’s a decision about the rights of doctors because doctors were the only ones who faced criminal prosecution for performing an illegal abortion… it was a case about the right of doctors to practice medicine as they saw fit... without risking criminal prosecution”.
From here, he begins an evaluation of what was at stake: 1) women being able to make decisions about when and if they become pregnant, and 2) the state’s interest in potential life. Justice Blackmun wanted to balance these two things, and the way he saw an opening to do that was the “trimester framework”. In the first trimester, states could have no regulation considering that abortion was relatively safe. In the second trimester, they could have more regulations that were directed to protecting the mother’s health and safety as this was when abortions could get more dangerous. In the third trimester, states could ban it unless it was for “life and health reasons”, and the Court defined health to include physical, psychological, familial, or age factors relevant to her well-being.
As Linda Greenhouse recognized, “there is no recognition of fetal personhood although the state does have an interest in unborn life.. that interest doesn’t sufficiently come into play to outweigh the woman's choice until the fetus would be viable outside the womb”.
This holding overturned abortion-restricting laws in all 50 states, and it created this revolutionary idea that abortion was a Constitutional right. This holding; however, unsettled countless conservative bodies in the country, and guaranteed that the Court’s holding would be continuously challenged and debated in classrooms and congressional floors for decades into the future.
Written by writer Yashavi Prakash