When and Where Did the Roe. Vs. Wade Case Take Place

US Supreme Court case which legalized abortion

United States Supreme Court case

Roe v. Wade
Supreme Court of the United States
Argued December 13, 1971 Reargued October 11, 1972 Decided January 22, 1973
Full case name	Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County
Citations	410 U.S. 113 (more) 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
Argument	Oral argument
Reargument	Reargument
Decision	Opinion
Case history
Prior	Judgment 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)
Subsequent	Rehearing denied, 410 U.S. 959 (1973)
Holding
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. This right is not absolute, and must be balanced against the government's interests in protecting women's health and protecting prenatal life. The Texas law making it a crime to procure an abortion violated this right.
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
Majority	Blackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell
Concurrence	Burger
Concurrence	Douglas
Concurrence	Stewart
Dissent	White, joined by Rehnquist
Dissent	Rehnquist
Laws applied
U.S. Const. Amend. XIV; Tex. Code Crim. Proc. arts. 1191–94, 1196
Overruled by
(partially) Planned Parenthood v. Casey (1992)

Roe v. Wade , 410 U.S. 113 (1973),^[1] was a landmark decision of the U.S. Supreme Court concerning a pregnant woman's liberty to choose to have an abortion without excessive government restriction. The decision struck down many U.S. federal and state abortion laws.^{[2] [3]} Roe fueled an ongoing abortion debate in the United States about whether or to what extent abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. It also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication.

The decision involved the case of Norma McCorvey—known under the pseudonym "Jane Roe"—who in 1969 became pregnant with her third child. McCorvey sought to have an abortion, but she lived in Texas where abortion was illegal except when necessary to save the mother's life. Her attorneys, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. A three-judge panel of the U.S. District Court for the Northern District of Texas ruled in her favor, but the State of Texas appealed directly to the U.S. Supreme Court.

In January 1973, the Supreme Court issued a 7–2 decision that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a "right to privacy" protecting a pregnant woman's right to choose whether or not to have an abortion. But it also ruled that this right is not absolute and must be balanced against governments' interests in protecting women's health and prenatal life.^{[4] [5]} The Court resolved this balancing test by tying the degree of state regulation permitted to the trimester of pregnancy which is to be aborted.^[5] The Court also required lower courts to evaluate challenges to abortion related laws under the "strict scrutiny" standard, the highest level of judicial review in the United States.^[6]

The Court's ruling in Roe was criticized by some in the legal community,^[7] and some called the decision an example of judicial activism.^[8] The Supreme Court revisited and modified Roe 's legal rulings in its 1992 decision Planned Parenthood v. Casey.^[9] In Casey, the Court reaffirmed Roe 's holding that a woman's right to choose to have an abortion is constitutionally protected, but abandoned Roe 's trimester framework in favor of a standard based on fetal viability and overruled the strict scrutiny standard implemented in 1973.^{[4] [10]}

Background

History of abortion laws in the United States

In 1821, Connecticut passed the first state statute banning abortion in the United States. Every state had abortion legislation by 1900.^[11]

In the United States, abortion was sometimes considered a common law offense.^[13] Negative liberty rights from common law do not apply in situations caused by consensual or voluntary behavior, which allowed for abortions of fetuses conceived in a consensual manner to be common law offences.^[14] In 1868, abortion by itself was not legal before quickening in 26 out of 37 states. In all states throughout the 19th and early 20th century, pre-quickening abortions were always considered to be actions without a lawful purpose, which meant that if the mother died, the individual performing the abortion was guilty of murder. This aspect of common law regarded pre-quickening abortions as a type of inchoate felony.^[15] Abortion^[16] and infanticide were common practices in the Kingdom of Hawai'i, but infanticide was criminalized in 1835^[17] and had disappeared or became infrequent by at least 1846.^[18] Abortion, except to save the mother's life, was criminalized in 1850,^[19] and the statutes continued in effect following the adoption of English Common Law^[20] and also following annexation by the United States.^[17] The majority opinion authored in Justice Blackmun's name would later claim that the criminalization of abortion did not have "roots in the English common-law tradition".^[21]

One purpose for banning abortion was to protect the life of the mother, and another was to create deterrence against future abortions.^[22] 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.^{[23] [24]} This law enforcement strategy was a response to juries which refused to convict women prosecuted for abortion in the 19th century.^[25] In 1973, Justice Harry Blackmun's opinion stated that "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage".^[26] Blackmun's opinion also cited differences between permissive and restrictive abortion attitudes and laws throughout history and among different professions to argue that there was no consensus about abortion.^[27]

By 1971, elective abortion on demand was effectively available in Alaska, California, Washington, D.C., Washington state, Hawaii, and New York.^[28] Some women traveled to these jurisdictions, although not all could afford to.^[29] 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.^[23] The Boston Women's Abortion Coalition held a rally for Wheeler 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.^[30] Wheeler was possibly the first woman to be held criminally responsible for having an abortion.^[31] Her conviction was overturned by the Supreme Court of Florida.^[23]

History of the case

Sarah Weddington (upper left) and Linda Coffee (upper right), were the two attorneys who represented the pseudonymous
Norma McCorvey (lower left) against Henry Wade (lower right)

In June 1969, 21-year-old Norma McCorvey discovered she was pregnant with her third child. She returned to Dallas, where friends advised her to falsely claim that she had been raped, incorrectly believing that Texas law allowed abortion in cases of pregnancy from rape and incest when it actually 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.^{[32] [33]} Ordinarily, lawyers are not allowed to directly solicit clients without any prior relationship, but McCorvey's situation qualified for a loophole in the no solicitation rule which allows lawyers to solicit new clients for public interest cases.^[34] McCorvey gave birth to a daughter at Dallas Osteopathic Hospital on June 2, 1970; the baby was adopted by a couple in Texas.^[35]

In 1970, Coffee and Weddington filed suit in the U.S. 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, in an attempt to circumvent a Texas law that banned abortions except when the woman's life is in danger.^{[36] [37] [38]} "Rape" is not mentioned in the judicial opinions in the case.^[39]

McCorvey's lawsuit was heard by a three-judge panel consisting of district court judges Sarah T. Hughes and William McLaughlin Taylor Jr. and appellate judge Irving Loeb Goldberg of the U.S. Court of Appeals for the Fifth Circuit. On June 17, 1970, the three judges unanimously^[39] ruled in McCorvey's favor and 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 enforcing the law.^[40]

Hearing the case

Postponement

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 first decided certain other cases. One case they decided first was Younger v. Harris. The justices felt the appeals raised difficult questions on judicial jurisdiction.

Another case was United States v. Vuitch, in which they considered the constitutionality of a District of Columbia statute which banned abortion except when the mother's life or health was endangered. The Court upheld the statue on the grounds that the word "health" was not unconstitutionally vague and placed the burden of proof concerning dangers to the life or health of the mother on the prosecutor instead of on the person who had performed the abortion.^[41]

Justice Douglas with his family on Christmas Eve, 1939. His wife divorced him in 1952 and his private life involved repeated drinking and womanizing during the '60s and '70s prior to his retirement.^[42]

Justice William O. Douglas wrote a lengthy dissenting opinion to this case. He argued that the right to marital privacy and the limitation of family size from Griswold v. Connecticut also applied here, although he acknowledged that "And on the other side is the belief of many that the fetus, once formed, is a member of the human family and that mere personal inconvenience cannot justify the fetus' destruction." He also challenged the majority opinion with a series of hypothetical questions asking whether "health" might also include the stigma of having an illegitimate child, anxiety from the pregnancy being unwanted, the physical work of raising a child, the financial drain from the added expense of another child, and far off health risks that may never actually materialize in a similar fashion to how risks were warded off with prophylactic appendectomy.^[43] Justice Douglas's dissent made a similar legal argument to the one used two years later in Roe v. Wade.^[44] The following day after their decision was announced, the court voted to hear both Roe and Doe.^[45]

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 the cases were a straightforward application of Younger v. Harris, and they recommended that the Court continue on as scheduled.^[46]

Oral arguments

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".^[47] 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."^{[48] [49]}

McCorvey did not attend the oral arguments along with her two lawyers. After talking McCorvey out of getting an illegal abortion and getting her name signed on an affidavit for the lawsuit, Weddington did not speak again with McCorvey until four months after Roe was decided.^[50]

Initial discussions

The judicial replacements

After a first round of arguments, all seven remaining justices tentatively agreed that the Texas law should be struck down, but on varying grounds.^[51] Burger assigned the task of writing the Court's opinions for both Roe and Doe to Blackmun. He started by working on a preliminary opinion for Roe which argued that Texas's law was unconstitutionally vague.^[52] At this point, justices Black and Harlan had been replaced by justices William Rehnquist and Lewis F. Powell Jr., but the first round of arguments had already occurred before they became Supreme Court justices. But Blackmun felt that his opinion did not adequately reflect his liberal colleagues' views.^[53] In May 1972, he proposed that the case be reargued. Justice Douglas threatened to write a dissent from the reargument order because he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold the Texas abortion statutes. He was coaxed out of the action by his colleagues, and instead his dissent was merely mentioned in the reargument order without further statement or opinion.^{[54] [55]} The case was reargued on October 11, 1972. Weddington continued to represent the pseudonymous Jane Roe, and Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for Texas.^[56]

Drafting the opinion

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. He talked daily on the phone with George Frampton, his 28-year old law clerk who stayed behind in Washington, D.C.^[57] Frampton researched the history of abortion using a book authored by Lawrence Lader, the founding chairman of what is now called NARAL Pro-Choice America. Blackmun's papers made available since his death contain at least seven citations^[58] for Lader's 1966 book, Abortion.^[57] Chapter 16 of his book, "A Blueprint for Changing U.S. Abortion Laws" predicted that if abortion were to be legalized, "the possibility of community opposition is slight".^[59] Lader also predicted that "If such a theoretical case was carried to a high court, perhaps even the U.S. Supreme Court, and the judges confirmed a broad interpretation of the meaning of a threat to life, undoubtedly a landmark in abortion decisions would be reached."^[60] 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. Byron White was unwilling to sign on to Blackmun's opinion, and Rehnquist had already decided to dissent.^[61]

During the drafting process, the justices discussed the trimester framework at great length. Powell had suggested that the point where the state could intervene be placed at viability, which Thurgood Marshall supported as well.^[62] In an internal memo to the other justices before the majority decision was published, 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."^{[63] [64]} Roe supporters 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.^[65] Contrary to Blackmun, Douglas preferred the first-trimester line.^[66] Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to state legislatures, though he joined Blackmun's decision.^[67] 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.^[66]

Supreme Court decision

On January 22, 1973, the Supreme Court issued a 7–2 decision in favor of Norma McCorvey ("Jane Roe") holding that women in the United States had a fundamental right to choose whether or not to have abortions without excessive government restriction and striking down Texas's abortion ban as unconstitutional. The decision was issued together with a companion case, Doe v. Bolton, that involved a similar challenge to Georgia's abortion laws.

Opinion of the Court

Seven justices formed the majority and joined an opinion written by Justice Harry Blackmun. The opinion recited the facts of the case, then dealt with issues of procedure and justiciability before proceeding to the main constitutional issues of the case.

Mootness

The Court's opinion first addressed mootness, a legal doctrine which bars American federal courts from hearing cases that have ceased to be "live" controversies because of intervening events.^[68] Under a normal application of the principle, McCorvey's appeal had become moot because she had already given birth to her child and no longer had a pregnancy to abort.^[69]

The Court concluded that an established exception to the mootness doctrine allows consideration of cases that are "capable of repetition, yet evading review".^[70] Blackmun noted that pregnancy would normally conclude more quickly than an appellate process: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied."^[71]

Abortion and right to privacy

After dealing with mootness and standing, the Court proceeded to the main issue of the case: the constitutionality of Texas's abortion law. The Court first surveyed abortion's legal status throughout the history of Roman law and the Anglo-American common law.^[5] It also reviewed the developments of medical procedures and technology used in abortions.^[5]

After its historical survey, the Court introduced the concept of a constitutional "right to privacy" that it said had been intimated in its earlier decisions Meyer v. Nebraska and Pierce v. Society of Sisters, which involved parental control over childrearing, and in Griswold v. Connecticut, which involved contraception.^[5] Then, "with virtually no further explanation of the privacy value",^[6] the Court ruled that regardless of exactly which of its provisions were involved, the U.S. Constitution's guarantees of liberty covered a right to privacy that protected a pregnant woman's decision whether or not to abort a pregnancy.^[72]

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

— Roe, 410 U.S. at 153.^[73]

The Court reasoned that outlawing abortions would infringe a pregnant woman's right to privacy for several reasons: having unwanted children "may force upon the woman a distressful life and future"; it may bring imminent psychological harm; caring for the child may tax the mother's physical and mental health; and because there may be "distress, for all concerned, associated with the unwanted child".^[74]

But the Court rejected the notion that this right to privacy was absolute.^[5] It held instead that the abortion right must be balanced against other government interests.^[75] Two government interests were held to be sufficiently "compelling" to permit states to impose some limitations on pregnant women's right to choose to have an abortion: first, protecting the mother's health, and second, protecting the life of the fetus.^[75]

A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. ... We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

— Roe, 410 U.S. at 154.

Texas's lawyers had argued that total bans on abortion were justifiable because life began at the moment of conception, and therefore its governmental interest in protecting prenatal life applied to all pregnancies regardless of their stage.^[6] The Court said that there was no indication that the Constitution's uses of the word "person" were meant to include fetuses, and it rejected Texas's argument that a fetus should be considered a "person" with a legal and constitutional right to life.^[75] The Court observed that there was still great disagreement over when an unborn fetus becomes a living being.^[76]

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, in this point in the development of man's knowledge, is not in a position to speculate as to the answer.

— Roe, 410 U.S. at 159.^[77]

To balance women's rights to privacy and state governments' interests in protecting mothers' health and prenatal life, the Court created a framework based on the three trimesters of pregnancy. During the first trimester, when it was believed that the procedure was safer than childbirth, the Court ruled that a state government could place no restrictions on women's ability to choose to abort pregnancies other than imposing minimal medical safeguards, such as requiring abortions to be performed by licensed physicians.^[6] From the second trimester on, the Court ruled that evidence of increasing risks to the mother's health gave states a compelling interest that allowed them to enact medical regulations on abortion procedures so long as they were reasonable and "narrowly tailored" to protecting mothers' health.^[6] From the beginning of the third trimester on—the point at which a fetus became viable under the medical technology available in the early 1970s—the Court ruled that a state's interest in protecting prenatal life became so compelling that it could legally prohibit all abortions except where necessary to protect the mother's life or health.^[6]

Having completed its analysis, the Court concluded that Texas's abortion statutes were unconstitutional and struck them down.

A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

— Roe, 410 U.S. at 164.

Concurrences

Three justices from the majority filed concurring opinions in the case. Justice Potter Stewart wrote a concurring opinion in which he said that even though the Constitution makes no mention of the right to choose to have an abortion without interference, he thought the Court's decision was a permissible interpretation of the doctrine of substantive due process, which says that the Due Process Clause's protection of liberty extends beyond simple procedures and protects certain fundamental rights.^{[78] [6]} Justice William O. Douglas's concurring opinion described his view that although the Court was correct to find that the right to choose to have an abortion was a fundamental right, he thought it would have been better to derive it from the Ninth Amendment—which states that the fact that a right is not specifically enumerated in the Constitution shall not be construed to mean that American people do not possess it—rather than through the Fourteenth Amendment's Due Process Clause.^{[78] [6]} Chief Justice Warren Burger wrote a concurrence in which he wrote that he thought it would be permissible to allow a state to require two physicians to certify an abortion before it could be performed.^[78]

Dissents

Justices Byron White (left) and William Rehnquist (right), the two dissenters from Roe v. Wade

Justices Byron White and William Rehnquist dissented from the Court's decision, and their dissenting opinions touched on points that would lead to later criticism of Roe.^[6] White's dissent was issued with Roe 's companion case, Doe v. Bolton, and described his belief that the Court had no basis for deciding between the competing values of pregnant women and unborn children.

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

— Doe, 410 U.S. at 221–22 (White, J., dissenting).^[79]

White argued that the abortion issue, "for the most part, should be left with the people and the political processes the people have devised to govern their affairs."^[80]

Rehnquist's dissent compared the majority's use of substantive due process to the Court's repudiated use of the doctrine in the 1905 case Lochner v. New York.^[6] He elaborated on several of White's points, asserting that the Court's historical analysis was flawed:

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.

— Roe, 410 U.S. at 174–76 (Rehnquist, J., dissenting).^{[81] [82] [83]}

From this historical record, Rehnquist concluded, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." Therefore, in his view, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."^[84]

Reception

A statistical evaluation of the relationship of political affiliation to abortion rights and anti-abortion issues shows that public opinion is much more nuanced about when abortion is acceptable than is commonly assumed.^[85] The most prominent organized groups that mobilized in response to Roe are NARAL Pro-Choice America and the National Right to Life Committee.

Support for both Roe and abortion rights

Advocates of Roe describe it as vital to the preservation of women's rights, personal freedom, bodily integrity, and privacy. Advocates have also reasoned that access to safe abortion and reproductive freedom generally are fundamental rights. Supporters of Roe contend that even if abortion rights are also supported by another portion of the constitution, the decision in 1973 accurately founds the right in the Fourteenth Amendment. Others support Roe despite concern that the fundamental right to abortion is found elsewhere in the Constitution but not in the portions referenced in the 1973 decision.^{[87] [88]}

Opposition to Roe, but support of abortion rights

Some supporters of abortion rights oppose Roe v. Wade on the grounds that it laid a foundation for abortion in civil rights rather than in human rights, which are broader and would require government entities to take active measures to ensure every woman has access to abortion.^[89] This particular position is indicated by the use of rhetoric concerning "reproductive justice" which replaces earlier rhetoric centered around "choice", such as the "pro-choice" label.^[90] Reproductive justice proponents contend that factors permitting choice are unequal, thus perpetuating oppression and serving to divide women.^[91] Reproductive justice advocates instead want abortion to be considered an affirmative right that the government would be obligated to guarantee equal access to, even if the women seeking abortions are nonwhite, poor, or live outside major metropolitan areas.^[92] With a broader interpretation of the right to an abortion, it would be possible to require all new obstetricians to be in favor of abortion rights, lest as professionals they employ conscience clauses and refuse to perform abortions.^[93] In 1989, the decision in Webster v. Reproductive Health Services ruled against an affirmative right to nontherapeutic abortions and noted that states would not be required to pay for them.^[94]

Some in academia have equated the denial of abortion rights to compulsory motherhood, and have argued that abortion bans, therefore, violate the Thirteenth Amendment:

When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the Thirteenth Amendment. Even if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant.^[87]

In 1993, a district court rejected an attempt to justify abortion rights apart from Roe and instead upon the basis that pregnancy and childrearing constituted "involuntary servitude".^[95]

Opposition to both Roe and abortion

Every year, on the anniversary of the decision, opponents of abortion march up Constitution Avenue to the Supreme Court Building in Washington, D.C., in the March for Life.^[96] Around 250,000 people attended the march until 2010.^{[97] [98]} Estimates put the 2011 and 2012 attendances at 400,000 each,^[99] and the 2013 March for Life drew an estimated 650,000 people.^[100]

Opponents of Roe assert that the decision lacks a valid constitutional foundation.^[101] Like the dissenters in Roe, they maintain that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the legislative process, rather than through an all-encompassing ruling from the Supreme Court.^[102]

A prominent argument against the Roe decision is that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm.^[103]

In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent or parental notification for minors to obtain abortions; spousal mutual consent laws; spousal notification laws; laws requiring abortions to be performed in hospitals, not clinics; laws barring state funding for abortions; laws banning intact dilation and extraction, also known as partial-birth abortion; laws requiring waiting periods before abortions; and laws mandating that women read certain types of literature and watch a fetal ultrasound before undergoing an abortion.^[104] In 1976, Congress passed the Hyde Amendment, barring the federal government from using Medicaid to fund abortions except in cases of rape, incest, or a threat to the life of the mother. The Supreme Court struck down some state restrictions in a long series of cases stretching from the mid-1970s to the late 1980s, but upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).^[105]

Some opponents of abortion maintain that personhood begins at fertilization or conception, and should therefore be protected by the Constitution;^[88] the dissenting justices in Roe instead wrote that decisions about abortion "should be left with the people and to the political processes the people have devised to govern their affairs."^[106]

Responses within the legal profession

Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One argument is that Justice Blackmun reached the correct result but went about it the wrong way.^[107] Another is that the end achieved by Roe does not justify its means of judicial fiat.^[108]

In 1997, Justice Blackmun (grave, left) gave his papers to the Library of Congress under terms concerning when his papers, including notes tracing the development of the Roe opinion, would be released. To accommodate demand on the day of the final release to the general public five years after his death, the library set up a temporary media center with 18 workstations. The two employees in the foreground are from CNN.^[109]

David Garrow noted that the decision in Roe (and also Doe v. Bolton) "owed a great amount of their substance and language" to Blackmun's law clerks, George Frampton and Randall Bezanson. He thought the extent of their contributions were remarkable, and that the clerks exhibited an "unusually assertive and forceful manner" in voicing their views to Blackmun. In his research it was the earliest significant example he found of this behavior pattern, which grew more consistent later on. In Garrow's evaluation, the clerks' contributions were "historically significant and perhaps decisive" in shaping the two decisions.^[110]

In response to Garrow, Edward Lazarus noted that Blackmun's later clerks like himself did not need as much direction on reproductive rights since they had Blackmun's prior opinions to draw from. Lazarus thought that on at least some occasions when legal formulations were created for opinions to be published in Blackmun's name, the justice himself was not engaged in originating every significant thought pattern that they employed. Lazarus agreed that Garrow's depiction^[110] of how the trimester framework came about was an example of one of these occasions. He concluded:

The problem of excessive clerk delegation was less serious in Blackmun's chambers than Garrow suggests but is also more commonplace among the justices. The modern Supreme Court has deep problems in its decisional culture and the overuse of law clerks is an aspect of this.^[111]

Justice John Paul Stevens, while agreeing with the decision, has suggested that it should have been more narrowly focused on the issue of privacy. According to Stevens, if the decision had avoided the trimester framework and simply stated that the right to privacy included a right to choose abortion, "it might have been much more acceptable" from a legal standpoint.^[112] Justice Ruth Bader Ginsburg had, before joining the Court, criticized the decision for ending a nascent movement to liberalize abortion law through legislation.^[113] Ginsburg has also faulted the Court's approach for being "about a doctor's freedom to practice his profession as he thinks best... It wasn't woman-centered. It was physician-centered."^[114] Watergate prosecutor Archibald Cox thought the "failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child birth and abortion or new advances in providing for the separate existence of a fetus. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."^[115]

In a highly cited Yale Law Journal article published in the months after the decision,^[8] the American legal scholar John Hart Ely strongly criticized Roe as a decision that was disconnected from American constitutional law.^[116]

What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure.... The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court's business.... [Roe] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.^[117]

American constitutional law scholar 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."^[118] Liberal law professors Alan Dershowitz,^[119] Cass Sunstein,^[120] and Kermit Roosevelt have also expressed disappointment with Roe v. Wade.^[121]

Jeffrey Rosen^[122] and Michael Kinsley^[123] echo Ginsburg, arguing that a legislative movement would have been the correct way to build a more durable consensus in support of abortion rights. William Saletan wrote, "Blackmun's papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference."^[124] Benjamin Wittes has written that Roe "disenfranchised millions of conservatives on an issue about which they care deeply."^[125] And Edward Lazarus, a former Blackmun clerk who "loved Roe 's author like a grandfather," wrote: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."^[126]

The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the ruling.^[127] The "viability" criterion is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.^[128]

Later responses by those involved

Harry Blackmun

Justice Blackmun, who authored the Roe decision, subsequently had mixed feelings about his role in the case. During a 1974 television interview, he stated that Roe "will be regarded as one of the worst mistakes in the court's history or one of its great decisions, a turning point."^[129]

In a 1983 interview for a newspaper journalist, he responded that he was "mildly annoyed at those, law professors included, who personalize it" because "it was a decision of the court, not my decision. There were seven votes." As a Methodist, he felt hurt that Methodist pastors wrote condemning letters to him, but as time past by, the letters did not hurt "as much anymore". In defense he responded, "People misunderstand. I am not for abortion. I hope my family never has to face such a decision", noting that "I still think it was a correct decision" because "we were deciding a constitutional issue, not a moral one."^[130]

He described Roe as a "a no-win case" and predicted that, "fifty years from now, depending on the fate of the proposed constitutional amendment, abortion probably will not be as great a legal issue. I think it will continue to be a moral issue, however."^[129] He reflected that his role in the decision meant he was most known as the "author of the abortion decision". His response was that "we all pick up tags. I'll carry this one to my grave" and "so be it".^[130]

In 1992 he stood by the analytical framework he established in Roe during the subsequent Casey case.^[131] He often gave speeches and lectures promoting Roe v. Wade and criticizing Roe 's critics.^[132]

Norma McCorvey

During the 1970s although some years after Roe, Norma McCorvey had a nightmare concerning "little babies lying around with daggers in their hearts". This was the first of a series of recurring nightmares which kept her awake at night.^[133] She became worried and wondered, "What really, had I done?"^[134] and "Well, how do they kill a baby inside a mother's stomach anyway?" McCorvey later reflected:^[135]

I couldn't get the thought out of my mind. I realize it sounds very naïve, especially for a woman who had already conceived and delivered three children. Though I had seen and experienced more than my share of the world, there were some things about which I still didn't have a clue—and this was one of them. Ironically enough, Jane Roe may have known less about abortion than anyone else.

After years of working with and accompanying others in the abortion rights movement, Norma McCorvey became part of the anti-abortion movement from 1995 until shortly before her death in 2017.

.^[136] In 1998, she testified to Congress:

It was my pseudonym, Jane Roe, which had been used to create the "right" to abortion out of legal thin air. But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15, 20 years later and say, "Thank you for allowing me to have my five or six abortions. Without you, it wouldn't have been possible." Sarah never mentioned women using abortions as a form of birth control. We talked about truly desperate and needy women, not women already wearing maternity clothes.^[37]

In 2002, along with Sandra Cano (Mary Doe) from Doe v. Bolton and Bernard Nathanson, a co-founder of NARAL Pro-Choice America, McCorvey appeared in a television advertisement intended to get the Bush administration to nominate members to the Supreme Court who would oppose abortion.^[137]

As a party to the original litigation, she sought to reopen the case in U.S. District Court in Texas to have Roe v. Wade overturned. However, the Fifth Circuit decided that her case was moot, in McCorvey v. Hill.^[138] In a concurring opinion, Judge Edith Jones agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development. However, Jones said she was compelled to agree that the case was moot.^{[139] [140]} On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, and McCorvey's appeal ended.^[141]

In an interview shortly before her death, McCorvey stated that she had taken an anti-abortion position because she had been paid to do so and that her campaign against abortion had been an act. She also stated that it did not matter to her if women wanted to have an abortion and they should be free to choose.^{[142] [143]} Rob Schenck, a Methodist pastor and activist who once had anti-abortion views stated that he and others helped entice McCorvey to claim she changed sides and also stated that what they had done with her was "highly unethical" and he had "profound regret" over the matter.^[144]

Following this interview, McCorvey talked positively with a priest she knew well about a message she wanted him to convey at the next March for Life. The message concerned encouraging young people to oppose abortion. The priest, Frank Pavone, reflected after her death that "There was no indication whatsoever, at the end of her life," that she had recanted her pro-life positions."^[145]

McCorvey's third child

In 2021, Shelley Thornton, McCorvey's third child who did not get aborted because the court proceedings took too long, stated she was neither pro-life or pro-choice. She grew up not knowing that she was the fetus in the Roe case until her birth mother appeared on the Today show in 1989 and talked about her desire to meet her daughter. In response, a journalist for the National Enquirer found Thornton as a teenager and told so her about her prenatal history. This made her very sad. In 1991, Thornton became pregnant, and did not have an abortion because abortion was "not part of who I was". By 2021, she had met her two half-siblings, but not her birth mother. She nearly met her birth mother in 1994, but on the phone, McCorvey told her that she should have thanked her for not having an abortion. Thornton's visceral reaction was "What! I'm supposed to thank you for getting knocked up... and then giving me away?" She told her birth mother that she "would never, ever thank her for not aborting me".^[146] She reflected that "When someone's pregnant with a baby, and they don't want that baby, that person develops knowing they're not wanted."^[147]

Sarah Weddington

After arguing in Roe v. Wade at the age of 26, Sarah Weddington was elected to the Texas House of Representatives for three terms. Weddington also was general counsel for the United States Department of Agriculture, as assistant to President Jimmy Carter, lecturer at the Texas Wesleyan University School of Law, and speaker and adjunct professor at the University of Texas at Austin.^[148] Sarah Weddington explained in a speech at the Institute for Educational Ethics in Oklahoma why she used the false rape charges all the way to the Supreme Court: "My conduct may not have been totally ethical. But I did it for what I thought were good reasons."^[149] Weddington died on December 26, 2021.^[150]

Role in judicial decisions

Shortly after the decision, the Church Amendment of 1973 passed the Senate on a vote of 92-1 in order to protect private hospitals with a conscientious objection to abortion from being deprived of funding.^[151] Justice Blackmun supported this and other regulations protecting individual physicians and entire hospitals operated by religious denominations.^[152]

Opposition to Roe on the bench grew when President Reagan, who supported legislative restrictions on abortion, began making federal judicial appointments in 1981. Reagan denied that there was any litmus test: "I have never given a litmus test to anyone that I have appointed to the bench..... I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We've had too many examples in recent years of courts and judges legislating."^[153]

In addition to justices White and Rehnquist, Reagan-appointee Justice Sandra Day O'Connor began dissenting from the Court's abortion cases, arguing in 1983 that the trimester-based analysis devised by the Roe Court was "unworkable."^[154] Shortly before his retirement, Chief Justice Warren Burger suggested in 1986 that Roe be "reexamined";^[155] the associate justice who filled Burger's place on the Court—Justice Antonin Scalia—vigorously opposed Roe. Concern about overturning Roe played a major role in the defeat of Robert Bork's nomination to the Court in 1987; the man eventually appointed to replace Roe-supporter Justice Lewis Powell was Justice Anthony Kennedy.

In 1988, the Supreme Court of Canada used the rulings in both Roe and Doe v. Bolton as grounds to find Canada's federal law limiting abortions to certified hospitals unconstitutional in R. v. Morgentaler.^[156]

Webster v. Reproductive Health Services

In a 5–4 decision in 1989's Webster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution." In particular, the Court found that the ability to have an nontherapeutic abortion was not an affirmative right of the sort that required the state to pay for it.^[94] In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.^[94]

In concurring opinions, O'Connor refused to reconsider Roe, and Justice Antonin Scalia criticized the Court and O'Connor for not overruling Roe.^[94] Blackmun—author of the Roe decision—stated in his dissent that White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their plurality opinion "foments disregard for the law."^[94] White had recently opined that the majority reasoning in Roe v. Wade was "warped."^[155]

Planned Parenthood v. Casey

During initial deliberations for Planned Parenthood v. Casey (1992), an initial majority of five justices (Rehnquist, White, Scalia, Kennedy, and Thomas) were willing to effectively overturn Roe. Kennedy changed his mind after the initial conference,^[157] and O'Connor, Kennedy, and Souter joined Blackmun and Stevens to reaffirm the central holding of Roe,^[158] but instead of justifying the liberty to abort as being based on privacy as in Roe, it justified the liberty in a broader manner. The opinion asserted an individual's liberty to choose concerning family life and also protection from legal enforcement intended to maintain traditional sex roles, writing,^[159] "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.... Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."^[160] and against the state insisting "upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."^[161]

A plurality of justices found that a fetus was now viable at 23 or 24 weeks rather than at the 28 week line from 1973.^[162] They also felt that fetus viability was "more workable" than the trimester framework.^[163] They abandoned the trimester framework due to two basic flaws: "in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in Roe."^[164] Only Justice Blackmun wanted to retain Roe entirely and issue a decision completely in favor of Planned Parenthood.^[131]

Scalia's dissent acknowledged that abortion rights are of "great importance to many women", but asserted that it is not a liberty protected by the Constitution for the same reason bigamy was not protected either: because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed.^[165] Scalia concluded that "by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish."^[166]

Stenberg v. Carhart

The Rehnquist Court in 1998; the nine members pictured are the ones who decided Stenberg v. Carhart.

During the 1990s, the State of Nebraska attempted to ban a certain second-trimester abortion procedure known as intact dilation and extraction (sometimes called partial birth abortion). The Nebraska ban allowed other second-trimester abortion procedures called dilation and evacuation abortions. Ginsburg (who replaced White) stated, "this law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."^[167] The Supreme Court struck down the Nebraska ban by a 5–4 vote in Stenberg v. Carhart (2000), citing a right to use the safest method of second trimester abortion.

Kennedy, who had co-authored the 5–4 Casey decision upholding Roe, was among the dissenters in Stenberg, writing that Nebraska had done nothing unconstitutional.^[167] In his dissent, Kennedy described in graphic detail exactly how a fetus dies while being dismembered during a second trimester abortion procedure.^[167] He reasoned that since Nebraska was not seeking to prohibit this particular procedure, termed dilation and evacuation, the state was free to ban the other procedure, which was sometimes called "partial birth abortion."

The remaining three dissenters in Stenberg—Rehnquist, Scalia, and Thomas—disagreed again with Roe: "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."^[168]

Gonzales v. Carhart

In 2003, Congress passed the Partial-Birth Abortion Ban Act,^[169] which led to a lawsuit in the case of Gonzales v. Carhart.^[170] The Court had previously ruled in Stenberg v. Carhart that a state's ban on "partial birth abortion" was unconstitutional because such a ban did not have an exception for the health of the woman.^[171] The membership of the Court changed after Stenberg, with John Roberts and Samuel Alito replacing Rehnquist and O'Connor, respectively.^{[172] [173]} The ban at issue in Gonzales v. Carhart was a federal statute, rather than a state statute as in the Stenberg case, but was otherwise nearly identical to Stenberg, replicating its vague description of partial-birth abortion and making no exception for the consideration of the woman's health.^[171]

On April 18, 2007, the Supreme Court handed down a 5 to 4 decision upholding the constitutionality of the Partial-Birth Abortion Ban Act.^[173] Kennedy wrote the majority opinion, asserting that Congress was within its power to generally ban the procedure, although the Court left the door open for as-applied challenges.^[174] Kennedy's opinion did not reach the question of whether the Court's prior decisions in Roe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart remained valid, and instead the Court stated that the challenged statute remained consistent with those past decisions whether or not those decisions remained valid.^{[ citation needed ]}

Chief Justice John Roberts and associate justices Scalia, Thomas, and Alito joined the majority. Justices Ginsburg, joined by Stevens, Souter, and Breyer, dissented,^{[173] [172]} contending that the ruling ignored Supreme Court abortion precedent, and also offering an equality-based justification for abortion precedent. Thomas filed a concurring opinion, joined by Scalia, contending that the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed.^[175] They also noted that the Partial-Birth Abortion Ban Act may have exceeded the powers of Congress under the Commerce Clause but that the question was not raised.^[176]

Dubay v. Wells

Dubay v. Wells was a 2006 paternity case where a man argued he should not have to pay child support for a child he did not want to parent. The case was billed as "Roe v. Wade for men".^[177]

On March 9, 2006, Dubay filed a lawsuit before the United States District Court for the Eastern District of Michigan. Michigan's Attorney General, Joel D. McGormley, made a motion to have the case dismissed. On July 17, 2006, District Court Judge David Lawson agreed and dismissed Dubay's lawsuit.^[178] He appealed it once, to the United States Court of Appeals for the Sixth Circuit, which also dismissed it, and stated:

Dubay's claim that a man's right to disclaim fatherhood would be analogous to a woman's right to abortion rests upon a false analogy. In the case of a father seeking to opt out of fatherhood and thereby avoid child support obligations, the child is already in existence and the state therefore has an important interest in providing for his or her support.^[179]

Whole Woman's Health v. Hellerstedt

The Roberts Court in 2010; eight of the nine members pictured are the ones who decided Whole Woman's Health v. Hellerstedt. Justice Scalia (front row, second left) died before the decision.

In the case of Whole Woman's Health v. Hellerstedt, the most significant abortion rights case before the Supreme Court since Planned Parenthood v. Casey in 1992,^{[180] [181] [182]} the Supreme Court in a 5–3 decision on June 27, 2016, swept away forms of state restrictions on the way abortion clinics can function. In 2013, the Texas legislature enacted restrictions on the performance of abortions services that created an undue burden for women seeking an abortion by requiring abortion doctors to have difficult-to-obtain admitting privileges at a local hospital and by requiring clinics to have costly hospital-grade facilities. The Court struck down these two provisions from the law at issue in a facial manner—that is, the very words of the provisions were invalid, no matter how they might be applied in any practical situation. The ruling also stated that the task of judging whether a law puts an unconstitutional burden on a woman's right to abortion belongs with the courts and not the legislatures.^[183]

Dobbs v. Jackson Women's Health Organization

Dobbs v. Jackson Women's Health Organization is a pending case that the Supreme Court is expected to decide in 2022. It is a legal challenge to Mississippi's 2018 Gestational Age Act, which had banned abortions after 15 weeks with sole exceptions for medical emergencies or fetal abnormality. Federal courts had enjoined the state from enforcing the law after the state's only abortion clinic, Jackson Women's Health Organization, filed suit immediately after passage; the federal courts identified the law violated the 24-week point of viability established by Roe v. Wade. The Supreme Court certified the petition in May 2021, limited to the question of "Whether all pre-viability prohibitions on elective abortions are unconstitutional", which raised the question of whether the Court will use the case to overturn all or part of Roe v. Wade.^{[184] [185]} Oral arguments were held December 1, 2021.^[186] During the oral arguments, Justice Alito asked,^[187]

"What was the — the principal source that the Court relied on in Roe for its historical analysis? Who was the author of that — of that article?"

Julie Rikelman, the senior director of litigation at the Center for Reproductive Rights, responded:^[187]

I apologize, Your Honor, I don't remember the author. I know that the Court spent many pages of the opinion doing a historical analysis. There's also a brief on behalf of several key American historian associations that go through that history in detail because there's even more information now that supports Roe's legal conclusions.

Role in politics

Presidential positions

Leading up to Roe

President Theodore Roosevelt held that abortion was "pre-natal infanticide" and the advocacy of abortion was "quite as immoral as to advocate theft or prostitution, and is even more hurtful".^[188]

President Warren G. Harding tried to persuade Nan Britton into aborting their daughter Elizabeth. Britton recounted:^[189]

He wrote that if he had to choose between medicine and an operation he personally would prefer "the knife". Just reading that word "knife" seemed almost to stab me every way, and served to strengthen my determination not to consider such a course.

Harding immediately responded "that it was all right with him, he was sorry he had complained" and acknowledged to her that it was "the greatest experience a woman ever has". Britton wrote that she "welcomed the experience of childbirth with all my heart".^[189]

Eleanor Roosevelt visited Puerto Rico and wrote that "The population is increasing rapidly". About needleworkers she wrote that: "A few of them who work in the factories [left] earn fair wages, but for sewing done in the home [right] they are paid absurdly low wages."^[190] The purpose of the operations was to improve workforce retention, including during the Operation Bootstrap era.^[191] Later, USAID grants funded sterilizations performed at worksites.^[192]

President Franklin Delano Roosevelt appointed Justice Douglas,^[193] who voted for the majority in Roe v. Wade.^[1] President Roosevelt wanted to lower the birthrate in Puerto Rico, but population control had been controversial on the island.^[194] His advisor, Charles William Taussig, recounted him discussing his intentions for the island:^[195]

I guess the only solution is to use the methods which Hitler used effectively... It is all very simple and painless – you have people pass through a narrow passage and then there is the brrrrr of an electrical apparatus. They are there for twenty seconds and from then on they are sterile.

He appointed Blanton Winship as territorial governor, who carried out this intention by enacting Law 116 on May 13, 1937,^[196] which established a policy of compulsory sterilization of Puerto Ricans. Abortion was made effectively legal in 1937 by changes to the Penal Code. The changes permitted abortion under a broad understanding of what constitutes health of the mother in order to give doctors wide discretion.^[197] The territorial legislature repealed Law 116 on June 8, 1960.^[196] Sterilizations continued under federal funding to programs operated by the Puerto Rican government and the International Planned Parenthood Federation.^[198] By 1976, over 37% of Puerto Rican women were sterilized, with the vast majority operated on prior to reaching the age of 30.^[199]

During the Truman administration, special consultant to the Secretary of State Stanley Andrews advocated for population control to be included in President Truman's Point Four Program, but he was opposed by the Catholic Church.^[200] Supreme Commander for the Allied Powers Douglas MacArthur issued an industrialization and urbanization directive on the basis of "the knowledge that an uncontrolled increase in population in Japan would have a serious effect on the economic situation and would mitigate against the accomplishment of the long-range objective of the Occupation to establish a peaceful, democratic, stable Japan".^[201] He later wrote a natural resources report which included a recommendation that Japan's population be controlled. This was opposed by Catholic organizations in Tokyo. His report was recalled and he removed the offending portion of the report.^{[202] [200]} Later during Truman's presidency, the occupation-era Japanese government legalized abortion for broad reasons including the health and economic well-being of the mother under the Eugenic Protection Law.^[202] Most abortions were done on economic grounds.^[203] Abortion was the main method of birth control and the birth rate fell rapidly.^[202] In 1950, Brigader General Crowford Sams stated that "As an occupying power, it would be a very unwise thing for anybody in the Occupation to attempt to dictate to the Japanese that they have to limit their families." He thought that this "would lead to a Communist, or any other charge, that the occupying powers are trying to strangle the population of Japan."^[204]

President Dwight D. Eisenhower appointed justices Brennan and Stewart, who voted with the majority.^{[193] [1]}

The Draper Committee, a presidential commission led by General William Henry Draper Jr., recommended to Eisenhower that the existing military-assistance program be used to fund population control programs in developing countries, and that the federal government should expand its funding of human reproduction research. After the National Catholic Welfare Conference^[205] opposed this, President Eisenhower became concerned that Senator John F. Kennedy, as a Catholic, might also attack it. President Eisenhower thought it would be bad for the American people to split on a religious issue in a national political campaign,^[206] so he publicly stated that population problems in other countries were not the responsibility of the U.S. government, and declined to implement Draper's plan.^[207] In his Farewell Address, he warned about the danger which the scientific-technological elite posed to the future of American democracy. This warning has been interpreted to include moralistic elites seeking to use the government to curtail reproduction.^[208] After his presidency, Draper continued to correspond with Eisenhower, who agreed to become an honorary chairman of the Planned Parenthood Federation along with former President Harry S. Truman. He wrote in a letter about his fear that the "alarming increase in illegitimate children" was due to mothers trying to increase their welfare benefits, and stated that in the future the government may need to limit this practice.^[207] In his 1965 book Waging Peace, he urged an "effective and practicable system of population control" for India and publicly renounced his prior position about keeping the United States from getting involved in other countries' population problems.^[209]

President John F. Kennedy appointed Justice White, who dissented.^{[193] [1]} When an interviewer asked Kennedy about population control in 1960, he replied, "Now, on the question of limiting population: as you know the Japanese have been doing it very vigorously, through abortion, which I think would be repugnant to all Americans.... Most people consider their families to be their families, and that it is other people's families that provide the population explosion."^[210]

President Lyndon B. Johnson appointed Justice Marshall, who voted with the majority.^{[193] [1]} President Johnson advocated and expanded federal involvement in family planning,^[211] but was concerned that African Americans and Catholics would backlash if population control measures were taken too quickly.^[212] The ruling for Roe v. Wade was released in the morning of the same day that President Johnson died. He died of a heart attack at 3:13 in the afternoon, Pacific Standard Time.^[213]

Signing of Senate Bill 2107 to establish the Rockefeller Commission

President Richard Nixon appointed justices Burger, Blackmun, and Powell who voted with the majority, and Justice Rehnquist who dissented.^{[193] [1]}

In the months after Nixon's inauguration, his advisor Daniel Moynihan organized a task force to draft a message for President Nixon to deliver to Congress about population control.^[214] One task force member, Philander Claxton from the State Department, complained that foreigners repeatedly tell U.S. birth control advocates that "we have plenty of land, and our women want as many children as they can bring up." He explained, "We can't go to Latin America, encouraging them to accept population controls while we do not do this at home." He saw the need for domestic birth control primarily although not entirely, for the purpose of convincing people in underdeveloped countries of "our sincerity" in promoting population control.^[215] President Nixon followed the committee's instructions and asked Congress to pass a list of new initiatives. Two pieces of congressional legislation were passed. One created the Title X Family Planning Program, and the other created the Commission on Population Growth and the American Future led by John D. Rockefeller III.^[214] In 1972, the Rockefeller Commission published a report urging nationwide elective abortion on demand and other recommendations, although some commission members dissented.^[216]

In a private conversation following the Roe decision which was later revealed as part of the Nixon tapes, Nixon said, "There are times when an abortion is necessary. I know that. When you have a black and a white. Or a rape."^{[217] [218]} On the same tape, Nixon also said "Abortions encourage permissiveness" and "It breaks the family".^[217] President Nixon did not publicly comment about Roe v. Wade.^[219]

Following Roe

Generally, presidential opinions following Roe have been split along major party lines. The decision was opposed by Presidents Gerald Ford,^[220] Ronald Reagan,^[221] George W. Bush,^[222] and Donald Trump.^[223] President George H.W. Bush also opposed Roe, though he had supported abortion rights earlier in his career.^{[224] [225]}

During his early career, President Jimmy Carter supported legalizing abortion order to save the life of a woman or in the event of birth defects, or in other extreme circumstances.^[226] As president, he thought abortion was wrong, but stated that he "accepted my obligation to enforce the Roe v. Wade Supreme Court ruling, and at the same time attempted in every way possible to minimize the number of abortions."^[227] Roe was also supported by Presidents Bill Clinton^[228] and Barack Obama.^[229] In 1981, then-Senator Joe Biden voted for a constitutional amendment allowing states to overturn Roe v. Wade but in 1982, he voted against it.^[230] In a 2007 memoir he expressed an opinion that although he was "personally opposed to abortion" he didn't have the "right to impose" his personal opposition onto others.^[231]

State laws regarding Roe

Some states have enacted so-called trigger laws that would take effect in the event that Roe v. Wade is overturned, with the effect of outlawing abortions on the state level. Those states include Arkansas, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota.^[232] Additionally, many states did not repeal pre-1973 statutes that banned abortion, and some of those statutes could again be in force if Roe were reversed.^[233]

Other states have passed laws to maintain the legality of abortion if Roe v. Wade is overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada, and Washington.^[232]

On April 16, 2012, Mississippi House Bill 1390 was signed into law.^[234] The law attempted to make abortion unfeasible without having to overturn Roe v. Wade.^[235] Judge Daniel Porter Jordan III of the United States District Court for the Southern District of Mississippi granted an injunction against the law on July 13, 2012.^[236] On April 15, 2013, he issued another injunction which only applied to a part of the law which required the individual performing the abortions to have hospital admitting privileges.^[237] On July 29, 2014, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit upheld the injunction against part of the law, with Judge Emilio M. Garza dissenting. The ruling especially relied on a case unrelated to Roe which was decided "nearly fifty years before the right to an abortion was found in the penumbras of the Constitution".^[238] On February 18, 2015, Mississippi asked the Supreme Court to hear the case, but they declined to hear it on June 28, 2016.^[239]

Alabama House Republicans passed a law on April 30, 2019 that will make abortion a felony if it goes into effect.^[240] It offers only two exceptions: serious health risk to the mother or a lethal fetal anomaly. Alabama governor Kay Ivey signed the bill into law on May 14, primarily as a symbolic law in hopes of challenging Roe v. Wade in the Supreme Court.^{[241] [242] [243]}

In May 2021, Texas lawmakers passed Senate Bill 8, creating the Texas Heartbeat Act and banning abortions as soon as a fetal heartbeat can be detected.^[244] This is typically as early as six weeks into pregnancy and often before women know they are pregnant. To avoid conflicting with Roe v. Wade, the law established that any Texas resident who is not a state or local government employee or official can sue abortion clinics and doctors who are known to be "aiding and abetting" abortion procedures after six weeks.^[245] A clause forbids anyone who impregnated an abortion patient through rape, sexual assault, or incest to sue concerning the patient.^[246] The enactment date was September 1, 2021, and the U.S. Supreme Court, in a 5–4 decision, refused to block enforcement of the law that day.^{[245] [247]} On October 22, 2021, the Court again did not block the law's enforcement, and agreed to hear arguments for United States v. Texas (2021) later, on November 1, 2021.^[248] They limited the question to a review of standing.^{[249] [250]} On December 10, 2021, the Court dismissed existing lawsuit on the basis that lower courts should not have accepted it.^[251] This decision allows lawsuits against the executive directors of Texas's medical, nursing, and pharmacy licensing boards and also against the executive commissioner of the Texas Health and Human Services Commission, but not certain other lawsuits seeking to overturn the law.^[252]

According to a 2019 study, if Roe v. Wade is reversed and abortion bans are implemented in trigger law states and in states which are considered highly likely to ban abortion, the increases in travel distance are estimated to prevent at a low estimate of over 90,000 women and at a high estimate of over 140,000 women from having abortions in the year following the ruling's overturning.^[253]

Opinion polls

Polls of Americans' opinions about abortion indicate they are about equally divided; a May 2018 Gallup poll indicated that 48% of Americans described themselves as "pro-choice" and 48% described themselves as "pro-life". A July 2018 poll indicated that only 28% of Americans wanted the Supreme Court to overturn Roe v. Wade, while 64% did not want the ruling to be overturned.^[254]

A Gallup poll conducted in May 2009 indicated that 53% of Americans believed that abortions should be legal under certain circumstances, 23% believed abortion should be legal under any circumstances, and 22% believed that abortion should be illegal in all circumstances. However, in this poll, more Americans referred to themselves as "Pro-Life" than "Pro-Choice" for the first time since the poll asked the question in 1995, with 51% identifying as "Pro-Life" and 42% identifying as "Pro-Choice".^[255] Similarly, an April 2009 Pew Research Center poll showed a softening of support for legal abortion in all cases compared to the previous years of polling. People who said they support abortion in all or most cases dropped from 54% in 2008 to 46% in 2009.^[256]

In contrast, an October 2007 Harris poll on Roe v. Wade asked the following question:

In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?^[257]

In reply, 56% of respondents indicated favour while 40% indicated opposition. The Harris organization concluded from this poll that "56 percent now favours the U.S. Supreme Court decision." Anti-abortion activists have disputed whether the Harris poll question is a valid measure of public opinion about Roe 's overall decision, because the question focuses only on the first three months of pregnancy.^{[258] [259]} The Harris poll has tracked public opinion about Roe since 1973:^{[257] [260]}

Regarding the Roe decision as a whole, more Americans support it than support overturning it.^[261] When pollsters describe various regulations that Roe prevents legislatures from enacting, support for Roe drops.^{[261] [262]}

The Roe effect is a hypothesis explaining why the practice of abortion will eventually lead to abortion being restricted or outlawed. The hypothesis is that people in favor of abortion rights will not parent as many children when abortion is legal, and since children tend to have similar views to their parents eventually voters will not support abortion rights.^[263] In 2021, the ABC News/Washington Post poll found that 58% of those without children in their house wanted to see Roe v. Wade upheld, compared to 62% of non-parents. The All In Together poll found that only 36% with children living in their house opposed the Texas Heartbeat Act, compared to 54.9% without children.^[264]

See also

• List of United States Supreme Court cases, volume 410
• List of United States Supreme Court cases by the Burger Court
• Legalized abortion and crime effect
• Roe vs. Wade (film), released in 1989
• Roe v. Wade (film), released in 2020

References

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3. ^ Greenhouse 2005, p. 72
4. ^ ^{a b} Nowak & Rotunda (2012), § 18.29(a)(i).
5. ^ ^{a b c d e f} Chemerinsky (2019), § 10.3.3.1, p. 887.
6. ^ ^{a b c d e f g h i j} Nowak & Rotunda (2012), § 18.29(b)(i).
7. ^ Dworkin, Roger (1996). Limits: The Role of the Law in Bioethical Decision Making. Indiana University Press. pp. 28–36. ISBN978-0253330758.
8. ^ ^{a b} Greenhouse 2005, pp. 135–36
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120. ^ Sunstein, Cass, quoted in Roe v. Wade an Issue Ahead of Alito Hearing by Brian McGuire, New York Sun (November 15, 2005): "What I think is that it just doesn't have the stable status of Brown or Miranda because it's been under internal and external assault pretty much from the beginning... As a constitutional matter, I think Roe was way overreached." Retrieved January 23, 2007. Sunstein is a "liberal constitutional scholar". See "Former U of C law prof on everyone's short court list" by Eric Herman, Chicago Sun-Times (Archived December 23, 2007)
121. ^ Roosevelt, Kermit. "Shaky Basis for a Constitutional 'Right'", Washington Post, (January 22, 2003): "[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result.... This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional 'person' entitled to the protection of the 14th Amendment.... By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values." Retrieved January 23, 2007. (Archived Archived March 19, 2007, at the Wayback Machine, March 19, 2007)
122. ^ Rosen, Jeffrey (February 24, 2003). "Why We'd Be Better off Without Roe: Worst Choice". The New Republic. Archived from the original on March 9, 2003. Retrieved January 23, 2007. In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.
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146. ^ Identity of 'Roe baby' revealed after decades of secrecy by Scott Stump, NBC News, September 9, 2021
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Additional references

• Chemerinsky, Erwin (2019). Constitutional Law: Principles and Policies (6th ed.). New York: Wolters Kluwer. ISBN978-1-4548-9574-9.
• Garrow, David J. (1994). Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade . New York: Macmillan. ISBN978-0-02-542755-6.
• Greenhouse, Linda (2005). Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey. New York: Times Books. ISBN978-0-8050-7791-9.
• Lee, Evan Tsen (1992). "Deconstitutionalizing Justiciability: The Example of Mootness". Harvard Law Review. 105 (3): 603–69. doi:10.2307/1341536. JSTOR 1341536.
• Malphurs, Ryan A. (2010). ""People Did Sometimes Stick Things in my Underwear": The Function of Laughter at the U.S. Supreme Court" (PDF). Communication Law Review. 10 (2): 48–75. Retrieved August 10, 2013.
• Nowak, John E.; Rotunda, Ronald D. (2012). Treatise on Constitutional Law: Substance and Procedure (5th ed.). Eagan, Minnesota: West Thomson/Reuters. OCLC 798148265.
• Schwartz, Bernard (1988). The Unpublished Opinions of the Burger Court . Oxford University Press. p. 103. ISBN978-0-19-505317-3.

Further reading

• Critchlow, Donald T. (1996). The Politics of Abortion and Birth Control in Historical Perspective. University Park, PA: Pennsylvania State University Press. ISBN978-0-271-01570-5.
• Critchlow, Donald T. (1999). Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America . New York: Oxford University Press. ISBN978-0-19-504657-1.
• Hull, N. E. H. (2004). The Abortion Rights Controversy in America: A Legal Reader. Chapel Hill: University of North Carolina Press. ISBN978-0-8078-2873-1.
• Hull, N. E. H.; Peter Charles Hoffer (2001). Roe v. Wade: The Abortion Rights Controversy in American History . Lawrence, KS: University Press of Kansas. ISBN978-0-7006-1143-0.
• Mohr, James C. (1979). Abortion in America: The Origins and Evolution of National Policy, 1800–1900 . Oxford: Oxford University Press. ISBN978-0-19-502616-0.
• Rubin, Eva R. [ed.] (1994). The Abortion Controversy: A Documentary History . Westport, CT: Greenwood. ISBN978-0-313-28476-2. CS1 maint: extra text: authors list (link)
• Staggenborg, Suzanne (1994). The Pro-Choice Movement: Organization and Activism in the Abortion Conflict. New York: Oxford University Press. ISBN978-0-19-506596-1.

External links

This audio file was created from a revision of this article dated 16 July 2005 (2005-07-16), and does not reflect subsequent edits.

• Works related to Roe v. Wade at Wikisource
• Text of Roe v. Wade, 410 U.S. 113 (1973) is available from:Cornell CourtListener Findlaw Google Scholar Justia Library of Congress
• The concurring opinions of Burger and Douglas, as well as White's dissenting opinion, were issued along with Doe v. Bolton and may be found at:
  • Cornell LLI
• Audio of oral argument at www.oyez.org
• Summary of Roe v. Wade at Lawnix.com
• Major Decisions – Roe v Wade
• "Supreme Court Landmark Case Roe v. Wade" from C-SPAN's Landmark Cases: Historic Supreme Court Decisions
• "The Roe Baby", in The Atlantic, September 9, 2021, by Joshua Prager. (Retrieved 9.9.2021.)

When and Where Did the Roe. Vs. Wade Case Take Place

Source: https://en.wikipedia.org/wiki/Roe_v._Wade

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