Roe v. Wade

In Roe v. Wade (1973), the Supreme Court set new judicial precedent and generated contentious political response by recognizing a woman's right to have an abortion. The Court held, 7–2, that a Texas anti-abortion law violated the privacy right found in the concept of personal liberty guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The invalidated law made it a crime to procure an abortion, defined as destroying the life of the fetus or embryo in the woman's womb, or to attempt an abortion except when necessary to save the mother's life.

For about a century prior to Roe v. Wade, many states had laws similar to the Texas statute. During the 1960s, feminists fought for equality in employment and elsewhere, and it is not surprising that part of the women's movement focused on access to contraception and legal abortions. When the Supreme Court heard arguments in Roe v. Wade, only four states did not impose criminal penalties for performing or receiving abortions. Thus, Roe affected laws in 33 states that prohibited abortions and in 13 others that legalized abortions under very limited circumstances. Prior to Roe, activists focused on gaining legal recognition of the right to have an abortion. Since Roe, their focus has been on keeping that right secure.

In striking down the Texas law in Roe, the Supreme Court recognized that a fetus is not a person under the [Page 1234]U.S. Constitution, and the government must have a compelling interest to interfere with a woman's fundamental privacy right to have an abortion. The Court, therefore, expanded constitutionally protected liberties beyond the rights to marry, procreate, and use contraceptives to embrace the right to terminate a pregnancy.

In Roe, however, the Court acknowledged that the right to an abortion is not absolute; it can be regulated by narrowly drawn legislation designed to advance compelling state interests. For example, the Court recognized that after the first trimester the state may regulate the abortion procedure through narrow legislation to protect maternal health, including the requirement that only qualified individuals perform abortions. The state also has a compelling interest in protecting human life and can, therefore, ban abortions when the fetus can reasonably live outside the womb, except when an abortion is necessary to preserve the mother's health.

Landmark decisions expanding the protection of personal liberties often generate a backlash: illustrative was the massive response to the landmark desegregation decision, Brown v. Board of Education. Similarly, there have been widespread and lasting reactions to Roe v. Wade. Indeed, the battle lines between pro-life and pro-choice forces are clearly drawn and continue to evoke volatile confrontations.

Since 1973, the Supreme Court has addressed numerous government provisions designed to restrict the application of Roe v. Wade. In a 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court did not overturn Roe as pro-life forces wanted. However, it did change the analytical framework used to assess abortion restrictions, by no longer applying strict judicial scrutiny requiring a compelling governmental justification. Instead, the Court ruled that restrictions will be upheld unless they place an undue burden on women seeking abortions. The Court also rejected Roe's trimester rule, holding that the state's interests outweigh the mother's when the fetus becomes viable.

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