Roe v. Wade (410 U.S. 113, 93 S. Ct 705, 35 L. Ed 2d 147 (1973))
In 1969, 21-year-old Texan Norma L. McCorvey found out that she was pregnant with her third child. McCorvey was unmarried and did not want to proceed with the pregnancy. Under Texas law at the time, abortions were only permitted to save a pregnant woman’s life or in the case of rape or incest. McCorvey’s friends encouraged her to tell state officials that she had become pregnant through rape so she could obtain a legal abortion; however, because there was no police report of documenting the fabricated rape, McCorvey was unable to obtain a legal abortion in Texas. McCorvey could not afford to travel to another state to obtain a legal abortion so she contemplated having an illegal abortion. She was unable to do so because the illegal abortion clinic she planned to use had been shut down. McCorvey, therefore, was unable to have the abortion she sought.
Attorneys Linda Coffee and Sarah Weddington filed suit on McCorvey’s behalf against Dallas County District Attorney Henry Wade, who was acting as a representative of the state of Texas, in the United States District Court for the Northern District of Texas. Due to the sensitive nature of the case, Norma McCorvey was referred to in the case by the “placeholder” name “Jane Roe” to protect her privacy. The District Court held that the Texas law unconstitutionally violated McCorvey’s right to privacy in the Ninth Amendment. Nevertheless, the district court did not grant an injunction against enforcing Texas abortion laws.
McCorvey was able to appeal this decision directly to the Supreme Court as a “specific denial of injunctive relief,” and the Court was able to consider her simultaneous request for a declaratory relief because the two matters were “necessarily identical.” McCorvey’s case was joined with related cases: one from Texas and one from Georgia. In the Texas case, a doctor who was being prosecuted for performing abortions attempted to intervene in McCorvey’s legal action; however, the court ruled that the doctor’s case was not justiciable because his prosecutions had not yet been heard by Texas state courts. The Georgia case, involved a childless married couple who did not want to have children and intended to seek an abortion if the wife ever became pregnant. The Court dismissed their complaint because it was hypothetical and was “too speculative to present an actual case or controversy.”
McCorvey was granting standing to sue, in spite of the fact that she had already given birth by the time her case was heard by the Court and, hence, was no longer seeking an abortion for the pregnancy in issue. The Court did not consider her legal action to be “moot.” Because bringing a law suit to the Supreme Court takes longer than an entire pregnancy, if the mootness doctrine were applied, no litigation relating to a pregnancy could ever be judicially reviewed. Thus, McCorvey’s case proceeded as the only plaintiff in this case.
Justice Blackmun found a woman’s right to an abortion in the Constitution, but was vague about which amendment or amendments gave rise to it. He appears to believe it was the Fourteenth Amendment, and not the Ninth Amendment, referred to by the District Court. In his decision, Justice Blackmun reviews the legal, medical, and ethical history of abortions and the related views of when an unborn child is considered to be alive.
Both historically and currently, whether abortion is deemed to be a serious criminal offense, a minor offense, or no offense at all depends on when one believes that life begins. Abortions were practiced “without scruple” in Ancient Greece and Rome. Ancient Greek and Roman laws did not offer any protections to unborn fetuses. Historians believe that abortions were only prosecuted in Ancient Greece and Rome if a father believed his right to his own offspring had been violated. The practice of giving abortions is, however, forbidden in the Hippocratic Oath; however, Greeks and Romans were not dissuaded from practicing abortion because they believed they Hippocratic Oath was only intended to deny abortions after fetal viability, which at that point must have been a live birth, and only Pythagoreans believed an “embryo was animate from the moment of conception” and condemned abortion. The opinion of the Pythagoreans likely “represent[ed] only a small segment of Greek opinion.”
In early English common law, abortions performed before a fetus’ first recognizable movement in utero, usually between the 16th and 18th week of pregnancy, were permitted. Early English common law relating to abortion declared that life began with “mediate animation,” at “some point between conception and live birth.” The principle of “mediate animation” proposes that a person comes into being when his or her soul is animated, which occurs when a fetus becomes recognizably human. Christian theology later specified that “mediate animation” occurred 40 days after conception for males and 80 days after conception for females. In 1803, England passed its first criminal abortion statute, Lord Ellenborough’s Act. Lord Ellenborough’s Act made abortion after quickening a capital offense, but provided for lesser penalties for abortions prior to quickening. At first, states followed English Common Law and, by the beginning of the nineteenth century, adopted varying versions of Lord Ellenborough’s Act. By the 1950s most states banned abortion, “unless done to save…the life of the mother.” Subsequently, some states began to increase a woman’s right to terminate a pregnancy, permitting abortions at a mother’s discretion. In Roe v. Wade, the majority ruled that human life begins when an unborn child is “viable,” meaning that he or she is “potentially able to live outside the mother’s womb, albeit with artificial aid.” The Court set the approximate time of viability as 28 weeks, noting that it could occur earlier.
According to the majority opinion in Roe v. Wade, the right to terminate a pregnancy is a fundamental right and can therefore only be abridged by states when they have a compelling interest in doing so, i.e. for the health of the mother, or, in the latter stages of a pregnancy, to ensure the life of a viable, unborn child.
Hence, the Court held that women have the qualified, constitutional right to obtain an abortion. In the first trimester of pregnancy, this right is virtually absolute. In the second trimester, the state may only intervene for purposes of protecting the mother’s health. In the third trimester, once the unborn child is deemed “viable,” the states may restrict abortion rights to protect the unborn child’s life, provided there is an exception made in the event that an abortion is deemed medically necessary to protect the mother’s health or save her life.
Justice Burger, Douglas, and Stewart wrote concurring opinions and Justices White and Rehnquist each wrote a dissent.
Subsequent cases have refined the Roe v. Wade decision. In 1976, the Supreme Court handed down its decision in Planned Parenthood v. Danforth (428 U.S. 52 (1976)), which declared unconstitutional provisions of a state statute requiring parental consent for minors seeing abortion, and spousal consent for married women seeking abortions. In Planned Parenthood v. Casey (505 U.S. 833 (1992)), the Court reversed its decision with respect to parental consent for minors. Casey also allowed states to impose requirements for counseling and mandatory waiting periods prior to obtaining an abortion, provided they did not create an “undue burden” or place “substantial obstacles” in the way of a woman’s right to terminate a pregnancy.