Roe v. Wade

Roe v. Wade (1973) was perhaps the most controversial case decided by the Supreme Court in the twentieth century. It continues to be the focus of almost daily political, religious, and legal debates, and both supporters and critics of the decision—which struck down state laws criminalizing [Page 473]abortion—urge that nominees for any Supreme Court vacancy be screened carefully to determine if they support the decision or want to overturn it.

Norma McCorvey, identified in the case as Jane Roe for her protection, was an unmarried woman who had an abortion in Texas, where it was prohibited except to save a pregnant woman’s life. A companion case, Doe v. Bolton, challenged a less-restrictive ban on abortions in Georgia. Initially McCorvey asserted that her pregnancy was the outcome of a gang rape but later admitted that it resulted from consensual sexual relations. Although both women were pregnant at the time their cases were initially filed in 1970, they were no longer pregnant when the Supreme Court heard their appeals. The Court agreed that because the condition of pregnancy is repeatable, the case was not moot simply because the women were no longer pregnant. As Justice Harry A. Blackmun (1908–99) said for the Court, “[Although] pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete…. Pregnancy provides a classic justification,” he said, for not holding such cases to be unjusticiable.

Joining Justice Blackmun in the Supreme Court’s 7–2 decision were Chief Justice Warren E. Burger (1907–95) and Justices William O. Douglas (1898–1980), Potter Stewart (1915–85), William J. Brennan Jr. (1906–97), Lewis F. Powell Jr. (1907–98), and Thurgood Marshall concurring opinions were filed by Chief Justice Burger and Justices Douglas and Stewart. Justices Byron R. White (1917–2002) and William H. Rehnquist (1924–2005) wrote dissenting opinions.

The decision was grounded on the right of privacy developed by the Supreme Court and recognized earlier in Griswold v. Connecticut (1965). Because this right of privacy rests on citizens’ fundamental liberty, as protected by the due process clause of the Fourteenth Amendment (1868), the state was required to show that it had a compelling interest in infringing McCorvey’s privacy by banning abortion.

According to the opinion, the two state interests involved were the protection of the health of the mother and the protection of the life of the unborn child. The case was argued twice before the Supreme Court, an unusual occurrence due in part to the fact that some of the justices found unacceptable Justice Blackmun’s first draft of the opinion, in which he argued that the laws were unconstitutionally vague. During the interval, Justice Blackmun, who had served as legal counsel for the Mayo Clinic in Minnesota, did extensive medical research on abortion. The major breakthrough in his analysis came with the recognition that a nine-month pregnancy could be divided into three trimesters. The Court would allow women the right, in consultation with their physicians, to an abortion during the first trimester, the first three months of pregnancy. An abortion could also be obtained during the second trimester, but states could pass laws to regulate abortion during this period to protect the woman’s health. The Court held that even during the third trimester, states could permit an abortion to save the mother’s life.

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