Roe v. Wade and Supreme Court Abortion Cases

Is abortion a constitutional right?

Roe v. Wade
Roe v. Wade

The present Roe v. Wade Supreme Court says this is not in accordance with the U.S. Constitution. The Supreme Court reversed Roe v. Wade (1973), which established a constitutional right to abortion, in Dobbs v. Jackson Women’s Health Organization (2022). However, several state constitutions separately safeguard the right to an abortion.

The 14th Amendment’s implied right to privacy safeguarded abortion as a basic right, the Supreme Court said in the Roe v. Wade case. Nonetheless, depending on the stage of pregnancy, the government still has the authority to control or prohibit access to abortions. Furthermore, complete prohibitions on abortion were allowed as long as they included provisions to protect life and health beyond embryonic viability.

Griswold v. Connecticut (1965)

When expectant mothers used the morning sickness medication thalidomide, thousands of babies were born with serious birth abnormalities starting in the late 1950s. The most well-known instance included host of the kids’ television show Romper Room Sherri Finkbine, who was compelled to go to Sweden in order to get an abortion. Surprisingly, considering the legal context, a Gallup survey revealed that most Americans agreed with Finkbine’s ruling.

A German measles pandemic, often known as the Rubella epidemic, erupted nationwide shortly after the thalidomide disaster. Infants who survived the Rubella virus in utero frequently had a variety of birth abnormalities, including liver damage, heart issues, and deafness. (1971 marked the availability of a rubella vaccination.)

Preeminent medical professionals such as Alan Guttmacher started vocally advocating that abortion ought to be considered a medical decision that the patient and doctor make together, similar to other treatments, because of the danger to the mother.

Griswold v. Connecticut (1965)

A number of cases laid the groundwork for the impending change in abortion legislation, even as thalidomide and rubella affected popular perceptions of abortion. The first, which started in the 19th century, focused on the right to contraception.

Senator P.T. Barnum of Connecticut (yes, the same P.T. Barnum) presented a measure in 1879 that outlawed the dissemination of contraceptive information as well as the use of the device itself. When the Food and Drug Administration authorized the first oral contraceptive in Connecticut in 1960, the Barnum Act was still in effect. The Planned Parenthood League of Connecticut’s executive director, Estelle Griswold, was fined $100 for breaking the law. The Supreme Court heard her appeal all the way through.

In the case of Griswold v. Connecticut, a majority of seven judges overturned the Act of Barnum. According to Justice William O. Douglas, the Bill of Rights suggests a right to privacy since, taken as a cohesive unit, it emphasizes restricting government interference. The government cannot restrict married couples’ access to contraception, according to the Griswold majority. (At the time, the justices did not grant single individuals the same rights.) Among other important rulings, Roe was made possible by Griswold’s argument that the Constitution establishes a private sphere that the state is not allowed to invade.

Eisenstadt v. Baird (1972)

There were several uneven parts on the route leading from Griswold to Roe. Reproductive rights campaigner William Baird gave contraceptives to an unmarried lady two years after Griswold, following a speech on the topic to Boston University students. He received a three-month jail term.

Baird challenged his conviction before the Supreme Court, much like Estelle Griswold did. The Justices expanded on Griswold in Eisenstadt v. Baird. The 14th Amendment ensures equal protection under the law, according to Justice William Brennan, who wrote a majority opinion for the six justices. There was no justification for giving married and single people alternative contraceptive options.

United States v. Vuitch (1971) 

Doctor Milan Vuitch of Washington, DC, was jailed sixteen times in nine years for conducting abortions, which were prohibited in the district since 1901 unless they were “essential for the preservation of the mother’s life or health.”

Vuitch challenged his final conviction, claiming, among other things, that the “health” exclusion was unconstitutionally ambiguous. The United States v. Vuitch Supreme Court held a different opinion. Abortion was permitted in the district if it was required to safeguard someone’s bodily or mental health, according to the judges, who applied a broad interpretation of the word “health.”

Roe v. Wade
Roe v. Wade

But Vuitch’s relevance was only going to last temporarily. By the time of the ruling, Roe v. Wade was already winding its way through the courts. The justices voted the day following their decision in Vuitch.

The parties to Roe

1969 saw the third pregnancy for Texan Norma McCorvey. Due to her struggles with alcohol and drugs, she had already given up parenting her first two children. She made the decision that she didn’t want to carry the pregnancy through.

However, Texas law only permitted abortions in cases where the patient’s life was in danger. Under the alias Jane Roe, Texas attorneys Linda Coffee and Sarah Weddington filed a lawsuit on McCorvey’s behalf in federal court while she was six months pregnant.

Henry Wade was a renowned and contentious district attorney who had a remarkable conviction record. He gained notoriety for having brought charges against Jack Ruby, who was responsible for the assassination of JFK’s killer, Lee Harvey Oswald. But Wade presented a peculiar contradiction to pro-choice advocates. He talked very little about illegal abortions and did not pursue them vigorously.

The lower court

On June 2, 1970, Norma McCorvey gave birth to a daughter, Shelley Lynn, fifteen days before to the federal district court’s decision. When the child was three years old, her adoption occurred.

The Roe v. Wade oral argument

  • When Sarah Weddington, then just 26 years old, appeared before the Supreme Court’s justices on December 13, 1971, she centered her argument for the right to an abortion on the 9th and 14th Amendments, claiming that the ability to end an unintended pregnancy must be considered a “meaningful” liberty.
  • Justice Byron White insisted on knowing if the right to an abortion continued to the time of birth, despite the fact that the judges were generally open to Weddington’s arguments. Weddington hesitated before responding in the affirmative. Legal personhood, according to Weddington, commenced at birth. There should be an unrestricted constitutional right to abortion up to that point.
  • Weddington sat down, and Jay Floyd, the assistant attorney general for Texas, rose to defend the state statute. For whatever reason, he started off with a sexist Joke: “It’s an old joke, but a male will always have the final say in an argument against two gorgeous girls like these.” After the perplexingly inappropriate statement, there was a three-second silence.
  • But there was one funny moment throughout the debate. Floyd countered, “Maybe she makes a choice when she decides to reside in Texas!” to Justice Potter Stewart’s argument that a pregnant woman has already made her decision. The gallery erupted with amusement at the remark.
  • The oral argument’s lack of attention to the history of abortion regulations during the 14th Amendment’s ratification or the period after the Civil War is especially noteworthy. Rather of concentrating on the biological truths of both the wording of the Constitution itself and abortion,
  • Interestingly, during the oral argument, Justice Harry Blackmun—who would later write the majority decision in Roe v. Wade—spoke only twice. Justice Stewart spoke more than thirty times, Justice White and William Brennan more than twenty, and Justice Thurgood Marshall more than ten. (This may have occurred because Blackmun originally intended to write a far more constrained opinion than he did.)

The Roe v. Wade opinion

On January 22, 1973, the Supreme Court rendered its ruling. A majority of seven out of nine justices concurred that a state cannot “deprive any person of life, liberty, or property without due process of law,” as stated in the 14th Amendment’s Due Process Clause. This suggests a right to privacy. The majority seized on Weddington’s concept of liberty, pointing to a number of other rulings that suggested a free society requires a broad interpretation of the term “liberty.”

The judges acknowledged, however, that if it were essential to restrict abortion in order to serve a compelling state interest, the state may do so. The further along a pregnancy went, the more capable the state became at regulating. Additionally, the state might outlaw abortion after a fetus reached viability unless it was absolutely essential to safeguard White and William Rehnquist, the justices, dissented. Rehnquist contended that abortion had nothing to do with privacy in the sense of unlawful search and seizure under the constitution.

According to him, abortion restrictions can only have a reasonable justification, such as safeguarding a fetus, as they do not violate any fundamental rights. Rehnquist also proclaimed that the only rights that are identifiable and not expressly stated in the Constitution are those that have a strong foundation in American legal history, hinting toward the Dobbs ruling in 2022.

Doe v. Bolton (1973)

Barnum D. Because the Bill of Rights, when read as a cohesive whole, focuses on minimizing government intrusions, Justice William O. Douglas observed, it implies a right to privacy. According to the Griswold majority, married couples’ access to contraception cannot be restricted by the government. (The justices did not provide the privilege to single persons at the time.) A number of significant rulings, including Roe, were made possible by Griswold’s argument that the Constitution establishes a private sphere that the state is not allowed to explore.

What was the impact of the Roe v. Wade decision?

Roe dramatically lowered the death rate of mothers. It is known that 39 women died in 1972 as a result of unsafe abortions; however, this number was probably significantly underestimated. There were just three of these fatalities in 1975. Roughly seventeen percent of pregnancy-related fatalities occurred in 1965—eight years before the Roe decision. Nowadays, hospitalization for complications following an abortion is only necessary for 0.2% of abortion patients.

Because public opinion was shifting before the case’s ruling, it is unclear exactly what impact Roe had on sentiments around abortion. In 1965, just 5% of Americans believed that married individuals who wished to stop having children should be able to get abortions. By 1972, that percentage had increased to 36%, the year prior to the decision on Roe. Following the Roe decision, pollsters started to inquire about abortion “for any reason,” and since the mid-1970s, the answers to this question have been mostly consistent.

The law after Roe v. Wade

  • Legislatures tested the limits of the ruling due to lingering opposition to abortion, which was especially strong in some regions of the nation. Up until Roe v. Wade’s reversal in the 2022 case of Dobbs v. Jackson Women’s Health Organization, the Supreme Court handed down a number of significant decisions on abortion.
  • The justices struck down legislation requiring spousal permission for abortion in Planned Parenthood v. Danforth (1976).
  • States are able to refuse to pay for abortion services under Medicaid due to the ruling in Maher v. Roe (1979).
  • Colautti v. Franklin (1979) overturned a Pennsylvania statute that forced doctors to attempt to save the life of a potentially viable fetus because it was unconstitutionally ambiguous.
  • In the 1980 case of Harris v. McRae, the Supreme Court maintained the Hyde Amendment, a federal statute that prohibited government funding of abortions unless absolutely necessary. 
  • The Court maintained a statute mandating parental notice when the patient is a juvenile residing with parents in L. v. Matheson (1981).
  • The judges struck down a plethora of restrictions on abortion in City of Akron v. Akron Center for Reproductive Health (1983), including waiting periods, parental permission without judicial bypass, and prohibitions on abortions performed outside of hospitals beyond the first trimester.
  • The 1986 case of Thornburgh v. American College of Obstetricians and Gynecologists overturned a statute requiring informed consent to provide details on fetal development and non-abortion options.
  • Justice Rehnquist maintained regulations requiring physicians to screen for viability after 20 weeks and prohibiting state financing and state employee participation in abortion services in Webster v. Reproductive Health Services (1989).
  • Ass v. Sullivan (1991) maintained a prohibition on the use of specific government funding for counseling or referrals for abortion.
  • The 2000 decision in Hill v. Colorado maintained the ban on demonstrations and flyering near abortion facilities.
  • The 2000 case Stenberg v. Carhart overturned Nebraska’s prohibition on the dilation and extraction method of abortion.
  • A somewhat altered Court maintained a federal prohibition on the dilatation and extraction process in Gonzales v. Carhart (2007).

Notable past justices

  • According to Justice Stephen Breyer, “many Americans think that life begins at conception, so having an abortion is like killing an innocent kid. Millions more are concerned that if abortion were outlawed, many American women would be forced to live lives devoid of dignity, denied equal rights, and forced to have illegal abortions, which carry a high risk of death and suffering.
  • Chief Justice Warren Burger: “A state is not required by the Constitution to amend its laws in order to promote or facilitate abortions. State action, on the other hand, is “rationally tied to the legitimate governmental purpose of safeguarding potential life” and “encourages childbirth in the most necessary situations.”
  • The Supreme Court’s ruling in Roe v. Wade triggered public resistance and scholarly criticism, partly, I think, because the Court went too far in the modification it mandated and provided insufficient evidence to support its decision.
  • “The Roe framework… is plainly on a collision path with itself,” said Justice Sandra Day O’Connor.
  • William Rehnquist, Chief Justice: “We fail to understand why the state’s interest in preserving human life should begin at the moment of viability.”
  • “We should get out of this field [abortion law], where we have no right to be, and where we do ourselves and the country no favor by continuing,” said Justice Antonin Scalia.
  • Judge Byron White: “It appears that the Court places a higher priority on the expectant mother’s convenience than the ongoing existence of the life or future life that “If the right to privacy means anything, it is the individual’s right, married or single, to be free from undesired government intervention into matters so profoundly impacting a person as the decision to bear or beget a child,” said Justice William J. Brennan Jr.
  • “The state may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including the life of the unborn,” said Justice Anthony Kennedy. “Where it has a rational basis to act, and it does not impose an undue burden.”
  • Justice David Souter: “If that case is filed, I have no agenda on what should be done with Roe v. Wade.”

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