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Roe v. Wade
Seal of the United States Supreme Court
Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973
Full case nameJane Roe, et al. v. Henry Wade, District Attorney of Dallas County
Citations410 U.S. 113 (more)
93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
ArgumentOral argument
ReargumentReargument
DecisionOpinion
Case history
PriorJudgment for plaintiffs, injunction denied, 314 F. Supp. 1217 (N.D. Tex. 1970); probable jurisdiction noted, 402 U.S. 941 (1971); set for reargument, 408 U.S. 919 (1972)
SubsequentRehearing denied, 410 U.S. 959 (1973)
Holding
Texas law making it a crime to assist a woman to get an abortion violated her due process rights. U.S. District Court for the Northern District of Texas affirmed in part, reversed in part.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William O. Douglas · William J. Brennan Jr.
Potter Stewart · Byron White
Thurgood Marshall · Harry Blackmun
Lewis F. Powell Jr. · William Rehnquist
Case opinions
MajorityBlackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell
ConcurrenceBurger
ConcurrenceDouglas
ConcurrenceStewart
DissentWhite, joined by Rehnquist
DissentRehnquist
Laws applied
U.S. Const. Amend. XIV;
Tex. Code Crim. Proc. arts. 1191–94, 1196

Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a fundamental "right to privacy" that protects a pregnant woman's liberty to choose whether or not to have an abortion. It also ruled that this "right to privacy" is not absolute and must be balanced against the government's interests in protecting women's health and protecting prenatal life. The Court resolved this balancing test by tying state regulation of abortion to the three trimesters of pregnancy: the Court ruled that during the first trimester, governments could not prohibit abortions at all; during the second trimester, governments could require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when abortion was necessary to save the life of the mother. Because the Court classified the right to choose to have an abortion as "fundamental", the decision required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the highest level of judicial review in the United States.

In disallowing many state and federal restrictions on abortion in the United States, Roe v. Wade prompted a national debate that continues today about issues including whether, and to what extent, abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role should be of religious and moral views in the political sphere. Roe v. Wade reshaped national politics, dividing much of the United States into pro-life and pro-choice camps, while activating grassroots movements on both sides. Roe was criticized by some in the legal community, with the decision being seen as a form of judicial activism. In a 1973 article in the Yale Law Journal, the American legal scholar John Hart Ely criticized Roe as a decision that "is not constitutional law and gives almost no sense of an obligation to try to be." The American constitutional law Laurence Tribe had similar thoughts: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."

In 1992, the Supreme Court revisited and modified its legal rulings in Roe in the case of Planned Parenthood v. Casey. In Casey, the Court reaffirmed Roe's holding that a woman's right to abort a nonviable fetus is constitutionally protected, but abandoned Roe's trimester framework in favor of a standard based on fetal viability, and overruled Roe's requirement that government regulations on abortion be subjected to the strict scrutiny standard. The Roe decision defined "viable" as "potentially able to live outside the mother's womb, albeit with artificial aid." Justices in Casey acknowledged that viability may occur at 23 or 24 weeks, or sometimes even earlier, in light of medical advances.

Background

History of abortion laws in the United States

According to the Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." Providing a historical analysis on abortion, Justice Harry Blackmun noted that abortion was "resorted to without scruple" in Greek and Roman times. Blackmun also addressed the permissive and restrictive abortion attitudes and laws throughout history, noting the disagreements among leaders (of all different professions) in those eras and the formative laws and cases. In the United States, in 1821, Connecticut passed the first state statute criminalizing abortion. Every state had abortion legislation by 1900. In the United States, abortion was sometimes considered a common law crime, though Justice Blackmun would conclude that the criminalization of abortion did not have "roots in the English common-law tradition." Rather than arresting the women having the abortions, legal officials were more likely to interrogate these women to obtain evidence against the abortion provider in order to close down that provider's business.

In 1971, Shirley Wheeler was charged with manslaughter after Florida hospital staff reported her illegal abortion to the police. She received a sentence of two years' probation and, under her probation, had to move back into her parents' house in North Carolina. The Boston Women's Abortion Coalition held a rally for Wheeler in Boston to raise money and awareness of her charges as well as had staff members from the Women's National Abortion Action Coalition (WONAAC) speak at the rally. Wheeler was possibly the first woman to be held criminally responsible for submitting to an abortion. Her conviction was overturned by the Florida Supreme Court.

History of the case

In June 1969, 21-year-old Norma McCorvey discovered she was pregnant with her third child. She returned to Dallas, Texas, where friends advised her to assert falsely that she had been raped in order to obtain a legal abortion (with the incorrect assumption that Texas law allowed abortion in cases of rape and incest). This scheme would also fail because there was no police report documenting the alleged rape. In any case, the Texas statute allowed abortion only ”for the purpose of saving the life of the mother”. She attempted to obtain an Illegal abortion, but found that the unauthorized facility had been closed down by the police. Eventually, she was referred to attorneys Linda Coffee and Sarah Weddington. (McCorvey would end up giving birth before the case was decided, and the child was put up for adoption.)

In 1970, Coffee and Weddington filed suit in the United States District Court for the Northern District of Texas on behalf of McCorvey (under the alias Jane Roe). The defendant in the case was Dallas County District Attorney Henry Wade, who represented the State of Texas. McCorvey was no longer claiming her pregnancy was a result of rape, and later acknowledged that she had lied about having been raped. "Rape" is not mentioned in the judicial opinions in the case.

On June 17, 1970, a three-judge panel of the District Court, consisting of Northern District of Texas Judges Sarah T. Hughes, William McLaughlin Taylor Jr. and Fifth Circuit Court of Appeals Judge Irving Loeb Goldberg, unanimously declared the Texas law unconstitutional, finding that it violated the right to privacy found in the Ninth Amendment. In addition, the court relied on Justice Arthur Goldberg's 1965 concurrence in Griswold v. Connecticut. The court, however, declined to grant an injunction against enforcement of the law.

Issues before the Supreme Court

Roe v. Wade reached the Supreme Court on appeal in 1970. The justices delayed taking action on Roe and a closely related case, Doe v. Bolton, until they had decided Younger v. Harris (because they felt the appeals raised difficult questions on judicial jurisdiction) and United States v. Vuitch (in which they considered the constitutionality of a District of Columbia statute that criminalized abortion except where the mother's life or health was endangered). In Vuitch, the Court narrowly upheld the statute, though in doing so, it treated abortion as a medical procedure and stated that physicians must be given room to determine what constitutes a danger to (physical or mental) health. The day after they announced their decision in Vuitch, they voted to hear both Roe and Doe.

Arguments were scheduled by the full Court for December 13, 1971. Before the Court could hear the oral arguments, 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. According to Blackmun, Stewart felt that the cases were a straightforward application of Younger v. Harris, and they recommended that the Court move forward as scheduled.

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; one observer thought that Chief Justice Burger "was going to come right off the bench at him. He glared him down."

After a first round of arguments, all seven justices tentatively agreed that the Texas law should be struck down, but on varying grounds. Burger assigned the role of writing the Court's opinion in Roe (as well as Doe) to Blackmun, who began drafting a preliminary opinion that emphasized what he saw as the Texas law's vagueness. (At this point, Black and Harlan had been replaced by Justices William Rehnquist and Lewis F. Powell Jr., but they arrived too late to hear the first round of arguments.) But Blackmun felt that his opinion did not adequately reflect his liberal colleagues' views. In May 1972, he proposed that the case be reargued. Justice William O. Douglas threatened to write a dissent from the reargument order (he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold the statute), but was coaxed out of the action by his colleagues, and 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 Roe, and Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for Texas.

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. After the Court heard the second round of arguments, 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. Justice Byron White was unwilling to sign on to Blackmun's opinion, and Rehnquist had already decided to dissent.

Prior to the decision, the justices discussed the trimester framework at great length. Justice Powell had suggested that the point where the state could intervene be placed at viability, which Justice Thurgood Marshall supported as well. In an internal memo to the other justices before the majority decision was published, Justice Blackmun wrote: "You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." Roe supporters are quick to point out, however, that the memo only reflects Blackmun's uncertainty about the timing of the trimester framework, not the framework or the holding itself. In his opinion, Blackmun also clearly explained how he had reached the trimester framework – scrutinizing history, common law, the Hippocratic Oath, medical knowledge, and the positions of medical organizations. Justice Blackmun's trimester framework was later rejected by the O'Connor–Souter–Kennedy plurality in Casey, in favor of the "undue burden" analysis still employed by the Court. Contrary to Blackmun, Justice Douglas preferred the first-trimester line. Justice Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to state legislatures, though he joined Blackmun's decision. Justice William J. Brennan Jr. proposed abandoning frameworks based on the age of the fetus and instead allowing states to regulate the procedure based on its safety for the mother.

Supreme Court decision

On January 22, 1973, the Supreme Court issued a 7–2 decision in favor of Roe that struck down Texas's abortion ban as unconstitutional. In addition to the majority opinion, Justices Burger, Douglas, and Stewart each filed concurring opinions, and Justice White filed a dissenting opinion in which Justice Rehnquist joined. Burger's, Douglas's, and White's opinions were issued along with the Court's opinion in Doe v. Bolton (announced on the same day as Roe v. Wade).

Opinion of the Court