Roe versus Wade

In 1970 a pregnant, unmarried woman sought to have the Texas anti-abortion statute, first enacted in the 1850s, declared unconstitutional. To protect her anonymity she was given the fictitious name Jane Roe. The initial action was against Henry Wade, District Attorney of Dallas County, Texas. Roe claimed that the statute was unconstitutionally vague and violated her right of privacy as guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The case was argued before the Supreme Court in December of 1971 and reargued in October of 1972.

In January of 1973 the case was decided by the U.S. Supreme Court. A majority of 7 to 2 declared the Texas statute unconstitutional. Justice Harry Blackmun, an appointee of President Richard Nixon, wrote the opinion for the majority. Justice William Rehnquist, another Nixon appointee and now Chief Justice, filed a dissenting opinion. Justice White concurred with Justice Rehnquist.

A majority on the Court agreed that Roe had a right of privacy based on the 14th amendment and on earlier Supreme Court decisions. They also agreed that this right was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." However, they denied that this right was "absolute" (i.e., that "she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.") There were compelling state interests in "safeguarding health" and "protecting potential life" that could justify regulation.

The Trimester Framework

The decision outlined a trimester framework as a way to sort and balance these varied interests. The framework limited state regulation as follows:

The opinion also stated that the judiciary is "not in a position to speculate" as to when "life begins" and that the Constitution does not use the word "person" in a way that indicates "with any assurance, that it has any possible pre-natal application."

After Roe

Nearly all state laws against abortion became unenforceable after Roe. In a series of decisions, many new state regulations were struck down. For example, a woman could not be required to obtain the consent of her child's father. A minor could not be required in all cases to obtain the consent of her parents. On the other hand, those who were opposed to abortion also had some success. Federal funding of abortions was greatly restricted.

During the 1980s, appointments by President Ronald Reagan changed the Court's philosophical makeup and suggested that Roe might be overturned or limited in the future. A major shift was evident in the 1989 decision in William Webster v. Reproductive Health Services.

In Webster the Court upheld a Missouri law that restricted the performance of abortions in public hospitals to cases in which the mother's life was threatened. The law also required tests for viability if the physician believed that the fetus was at least 20 weeks old. Justice Rehnquist called the trimester framework unsound and unworkable. Webster was interpreted on every side of the political debate as a turning point.

The Court has gone on to allow some minor adjustments to Roe. In July of 1992, in Planned Parenthood v. Casey, it upheld several provisions in a Pennsylvania law on abortion. While not overturning Roe, the decision allowed certain restrictions even in the first trimester if they did not constitute an "undue burden." Future decisions may return even greater control of abortion to state legislatures as the meaning of "undue burden" is clarified.