In recent times, the legal landscape surrounding abortion rights in the United States has undergone a seismic shift, culminating in the overturning of Roe v. Wade. To comprehend the gravity of this decision, it’s essential to delve into the historical context that paved the way for Roe v. Wade in the first place. Understanding the journey to this landmark ruling illuminates not only its significance but also the complexities surrounding its eventual reversal.
In the 1960s, abortion was largely illegal across the majority of states in the U.S., often without exceptions even in cases of rape or when the mother’s life was at risk. However, this restrictive environment began to face increasing scrutiny due to a series of poignant crises that highlighted the dire consequences of such prohibitions.
One such crisis emerged in the late 1950s with the thalidomide tragedy. Thousands of infants were born with severe birth defects after their mothers used thalidomide, a drug prescribed for morning sickness, during pregnancy. The case of Sherri Finkbine, a Romper Room host who was forced to seek an abortion in Sweden, became a highly publicized example of the limitations imposed by abortion bans. Interestingly, even amidst the prevailing legal restrictions, a Gallup poll indicated that a majority of Americans supported Finkbine’s decision, suggesting a growing shift in public sentiment.
Shortly after the thalidomide scandal, the United States experienced a rubella epidemic. Babies born to mothers who contracted rubella during pregnancy often suffered from a range of disabilities, including deafness, heart defects, and liver damage. The rubella vaccine would not become available until 1971, leaving many pregnant women vulnerable and raising further concerns about maternal and fetal health in the absence of safe and legal abortion options. Prominent doctors, such as Alan Guttmacher, began to publicly advocate for treating abortion as a standard medical procedure, a decision to be made privately between a physician and patient, reflecting the evolving medical and ethical considerations.
Griswold v. Connecticut (1965)
While the thalidomide and rubella crises influenced public opinion and medical perspectives on abortion, the legal groundwork for the transformation of abortion law was being laid through a series of pivotal court cases. The initial case in this progression concerned the right to contraception and traces back to the 19th century.
In 1879, Connecticut State Senator P.T. Barnum, famously known for his circus, introduced the Barnum Act. This legislation not only prohibited the use of contraceptives but also the dissemination of any information pertaining to them. Remarkably, the Barnum Act remained in effect in Connecticut in 1960, the same year the Food and Drug Administration approved the first oral contraceptive pill. Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, deliberately violated this law and was fined $100. Her subsequent appeal reached the Supreme Court, marking a crucial juncture in the fight for reproductive rights.
In Griswold v. Connecticut, the Supreme Court, in a 7-2 decision, invalidated the Barnum Act. Justice William O. Douglas, writing for the majority, articulated that the Bill of Rights, when considered holistically, implies a right to privacy by limiting governmental intrusion. The Griswold decision established that the government could not prevent married couples from accessing contraception, although at the time, this right was not extended to unmarried individuals. Griswold‘s assertion of a constitutional zone of privacy, shielding certain personal decisions from government interference, became a cornerstone for future landmark decisions, most notably Roe v. Wade. This concept of privacy would become central to arguments for abortion rights, laying the intellectual foundation for the legal challenges that followed.
Eisenstadt v. Baird (1972)
The path from Griswold to Roe was not immediate but rather built upon subsequent legal challenges that expanded the scope of individual rights. Two years after the Griswold ruling, reproductive rights activist William Baird provided contraceptives to an unmarried woman following a lecture on contraception at Boston University. This act, in defiance of existing laws, led to his arrest and a three-month prison sentence.
Similar to Estelle Griswold, Baird appealed his conviction to the Supreme Court. In Eisenstadt v. Baird, the Court extended the principles established in Griswold. Justice William Brennan, writing for the 6-3 majority, reasoned that the 14th Amendment’s Equal Protection Clause meant that there was no justifiable basis for treating married and unmarried individuals differently concerning contraception access. This decision broadened the right to privacy established in Griswold, applying it equally to all individuals regardless of marital status. Eisenstadt further solidified the legal concept of individual autonomy over reproductive decisions, moving closer to the legal arguments that would be presented in Roe v. Wade.
United States v. Vuitch (1971)
While Griswold and Eisenstadt dealt with contraception, United States v. Vuitch directly addressed abortion legality, albeit in a limited context. Dr. Milan Vuitch, a physician practicing in Washington, D.C., was arrested 16 times over nine years for performing abortions. At the time, abortion was illegal in the District of Columbia since 1901, except when “necessary for the preservation of the mother’s life or health.”
Vuitch challenged his conviction, arguing that the “health” exception was unconstitutionally vague. In United States v. Vuitch, the Supreme Court disagreed with Vuitch’s vagueness argument but interpreted the term “health” broadly. The justices ruled that abortion was legal in Washington, D.C., whenever necessary to protect a woman’s mental or physical health. This broad interpretation significantly expanded the legal grounds for abortion in the district.
However, the impact of Vuitch was short-lived because Roe v. Wade was already progressing through the court system at the time of the decision. Remarkably, just a day after deciding Vuitch, the Supreme Court justices voted to hear Roe v. Wade, signaling their readiness to address the constitutionality of abortion on a national scale. This juxtaposition highlights the rapidly evolving legal and social environment surrounding abortion rights in the early 1970s.
The Parties to Roe
The Roe v. Wade case centered around Norma McCorvey, a Texas resident who became pregnant for the third time in 1969. Facing personal struggles, including drug and alcohol use, and having previously given up her first two children for adoption, she decided against continuing this pregnancy.
Texas law, however, permitted abortion only when necessary to save the pregnant woman’s life. Finding herself six months pregnant and with limited legal options, McCorvey became “Jane Roe” in a lawsuit filed on her behalf by Texas attorneys Linda Coffee and Sarah Weddington in federal court.
Opposing Roe was Henry Wade, the District Attorney of Dallas County. Wade was a prominent and controversial figure known for his high conviction rate and for prosecuting Jack Ruby, the killer of Lee Harvey Oswald. Ironically, Wade was not known for aggressively prosecuting illegal abortions and maintained a relatively low public profile on the issue, making him an unexpected adversary for pro-choice advocates.
The Lower Court
A three-judge panel of the U.S. District Court for the Northern District of Texas reviewed Roe v. Wade. Citing Griswold, the court recognized a constitutional right to privacy that extended to reproductive decisions. The court declared the Texas abortion ban unconstitutional, deeming it overly broad and locating the right to reproductive choice within the 9th and 14th Amendments, which concern unenumerated rights and due process, respectively. The ruling emphasized “the right of choice over events which, by their character and consequences, bear in a fundamental manner on the privacy of individuals.” Although the federal court deemed the Texas law unconstitutional, it did not immediately prevent its enforcement. This decision propelled Roe v. Wade toward the Supreme Court for a definitive ruling on the national legality of abortion.
Norma McCorvey ultimately gave birth to a daughter, Shelley Lynn, on June 2, 1970, shortly before the district court’s ruling. The baby was adopted at three days old, and her identity remained private until 2021. This personal detail underscores the real-life impact of abortion restrictions and the complex circumstances faced by women seeking to terminate unwanted pregnancies.
The Roe v. Wade Oral Argument
Sarah Weddington, just 26 years old, argued the case before the Supreme Court on December 13, 1971. Her arguments for a constitutional right to abortion centered on the 9th and 14th Amendments, asserting that “meaningful” liberty must encompass the right to decide whether to continue a pregnancy.
During the questioning, Justice Byron White pressed Weddington on whether the right to abortion extended up to the moment of birth. After a moment of hesitation, Weddington affirmed that, legally, personhood begins at birth, and until that point, a woman should have an unrestricted constitutional right to abortion.
Following Weddington, Texas Assistant Attorney General Jay Floyd presented the state’s defense of the abortion law. He began his argument with a sexist joke that fell flat, creating an awkward silence in the courtroom.
However, there was a moment of levity when Justice Potter Stewart, responding to Floyd’s argument that a pregnant woman had already made her choice, quipped, “Maybe she makes a choice when she decides to live in Texas!” This remark elicited laughter from the gallery, briefly lightening the tension of the proceedings.
Notably, the oral arguments devoted relatively little time to the historical context of abortion laws at the time of the nation’s founding or the ratification of the 14th Amendment. Instead, the justices primarily focused on the biological aspects of abortion and the text of the Constitution itself.
Interestingly, Justice Harry Blackmun, who would author the majority opinion in Roe v. Wade, spoke very sparingly during the oral arguments, in contrast to other justices like Thurgood Marshall, Byron White, William Brennan, and Potter Stewart, who actively engaged in questioning and discussion. This limited participation by Blackmun may reflect his initial inclination toward a more narrowly focused opinion than the sweeping decision that ultimately emerged.
The Roe v. Wade Opinion
On January 22, 1973, the Supreme Court issued its landmark decision in Roe v. Wade. In a 7-2 majority, the Court affirmed that the Due Process Clause of the 14th Amendment, prohibiting states from depriving any person of “life, liberty, or property, without due process of law,” implicitly guarantees a right to privacy. The majority opinion adopted Weddington’s broad interpretation of “liberty,” citing precedent that “liberty” should be broadly construed in a free society.
However, the Court also acknowledged that the state had a legitimate interest in regulating abortion to protect potential life and maternal health. To balance these interests, the Court established a trimester framework. During the first trimester, the state could not prohibit abortion at all. In the second trimester, the state could regulate abortion to protect maternal health. And in the third trimester, once the fetus reached viability (the ability to survive outside the womb), the state could prohibit abortion entirely, except when necessary to protect the woman’s life or health.
Justices William Rehnquist and Byron White dissented. Rehnquist argued that the constitutional right to privacy, as traditionally understood in the context of illegal search and seizure, did not encompass abortion. He contended that abortion bans, not infringing upon fundamental rights, only needed a rational basis, such as protecting potential life. Foreshadowing the Dobbs v. Jackson Women’s Health Organization decision in 2022 that would overturn Roe, Rehnquist asserted that unenumerated rights must be deeply rooted in American legal tradition, a standard that he argued abortion rights did not meet.
Doe v. Bolton (1973)
On the same day as Roe v. Wade, the Supreme Court also decided Doe v. Bolton, a case challenging Georgia’s restrictive abortion law. Georgia’s law allowed abortions only in cases of documented rape, fetal disability, or threat to the mother’s life. Furthermore, it mandated approvals from multiple doctors, a hospital committee, and allowed relatives to challenge the abortion decision, creating a cumbersome and restrictive process.
In another 7-2 decision, again with Justice Blackmun writing the majority opinion, the Court found that while the rights recognized in Roe were not absolute, Georgia’s numerous restrictions unduly burdened the constitutional right to abortion. Blackmun noted that Georgia’s law imposed obstacles far exceeding those required for other surgical procedures, thus violating the constitutional right to privacy.
Justices White and Rehnquist again dissented, maintaining their opposition to the constitutional basis for abortion rights.
The Roe v. Wade decision, alongside Doe v. Bolton, marked a watershed moment in the history of abortion rights in the United States. These rulings established a woman’s constitutional right to abortion, significantly altering the legal landscape and sparking decades of ongoing debate and legal challenges that ultimately led to the overturning of Roe v. Wade in 2022. Understanding the historical and legal journey to Roe is crucial to grasping the magnitude of its reversal and the ongoing struggle surrounding abortion access in America today.
