Roe v. Wade Click here for more free books!

410 U.S. 113 (1973), argued 13 Dec. 1971, reargued 11 Oct. 1972, decided 22 Jan. 1973 by vote of 7 to 2; Blackmun for the Court, Douglas, Stewart, and Burger concurring, White and Rehnquist in dissent. After the middle of the nineteenth century most states, under the prodding of physicians wishing to establish the scientific stature of their activities, adopted laws severely restricting the availability of abortion. The so‐called sexual revolution of the 1950s and 1960s, which fostered increased access to contraceptives and the development of contraceptive drugs, also resulted in an increasing number of situations in which women desired abortions. In the 1960s and early 1970s the discovery that thalidomide, a drug that many women had used in early stages of pregnancy to relieve morning sickness, occasionally caused birth defects, as well as the highly publicized case of Sherry Finkbine, an Arizona broadcasting figure who went to Sweden to obtain an abortion when she feared her baby would be severely handicapped, increased public pressure to relax the abortion laws. Illegal abortions were widespread, though their exact number is impossible to determine, and some women died because of the unsanitary conditions in which illegal abortions were sometimes performed. The revitalized women's movement made change in the abortion laws one of its priority goals.

Abortion reform took two forms. State legislatures began to make it easier to obtain abortions, usually by allowing abortion to protect a woman's health, broadly defined, but also requiring approval of the abortion by a committee of doctors in addition to the woman's own physician. Once some states had begun to relax abortion restrictions, any woman who could afford it found it relatively easy to travel to a state with an unrestrictive law or to find a doctor who would certify that the abortion was necessary to preserve her health.

Court attacks on restrictive abortion laws focused initially on the most restrictive of the traditional laws; challengers argued that such laws, which permitted abortions only to save a woman's life, were so vague that doctors could not know when they were committing an illegal act. The California Supreme Court agreed with such a challenge in People v. Belous (1969), and the United States Supreme Court in United States v. Vuitch (1971) avoided a decision on the constitutional question by construing a federal abortion law, applicable in the District of Columbia, to allow abortions when the woman's health, broadly defined, was in danger.

At the time these challenges were being brought, the Court was also developing a law of personal privacy in sexual matters, holding, for example, that a severe restriction on the availability of contraceptives was a violation of a constitutional right to privacy in Griswold v. Connecticut, 1965. Challenges to restrictive abortion laws relied on Griswold as the basis for arguing that such laws violated the right to privacy.

Roe v. Wade involved a challenge to a traditional, severely restrictive abortion law (from Texas) as well as a challenge to a more modern abortion law (from Georgia) that allowed abortions to be performed in hospitals, when approved by a hospital committee, to avoid danger to a woman's health. The action was brought in the name of Jane Roe, a procedure adopted to ensure that the plaintiff would not have to reveal the facts surrounding her pregnancy to the Court. Although those facts were irrelevant in light of the Court's analysis of the legal issues, shortly after the case was decided the plaintiff was identified as Norma McCorvey. At first McCorvey stated that her pregnancy had resulted from a gang rape; later she revealed that it resulted from a failed relationship.

Blackmun's Analysis

When the case was first argued, Justice Harry Blackmun, who had once served as counsel to the Mayo Clinic in Rochester, Minnesota, drafted an opinion that would have held both statutes unconstitutionally vague. In part because his analysis was clearly unpersuasive and in part because some justices believed that the case had been improperly assigned to Blackmun to write, the case was set for reargument. During the summer preceding the reargument, Blackmun engaged in an extensive study of medical material relating to abortion.

After reargument, Blackmun circulated an opinion finding both statutes unconstitutional on the ground that they violated the woman's right to privacy, which the opinion located in the Due Process Clause of the Fourteenth Amendment. Justice Potter Stewart's concurring opinion properly pointed out that this invocation of substantive due process meant that the Court was enforcing a right not specifically spelled out in the Constitution.

After finding that the case was not moot despite the fact that there had been no time to secure a decision before the opportunity for obtaining an abortion had passed, Blackmun's opinion acknowledged that states had some valid interests in regulating abortion. The opinion divided pregnancy into three periods, or trimesters. During the first trimester the woman had an essentially unrestricted right to choose abortion in consultation with her physician; thus, Blackmun held, the hospitalization and committee requirements of the more “liberal” state laws were unconstitutional. During the second trimester, when according to medical experts abortion posed a greater threat to a woman's health, states could regulate abortion to protect her health. Only in the third trimester was the state's interest in protecting the potential life of the fetus great enough to warrant severe restrictions on abortion, and even then, the Court held, states must permit abortions to save a woman's life. In the course of this analysis, Blackmun's opinion stated that because of uncertainty about the medical and moral status of the fetus, the states could not adopt a particular theory of when life begins—they could not decide, for example, that because life begins at conception fetuses have the same rights as newborn infants.

Although Chief Justice Warren Burger's concurring opinion denied that Roe had established a right to abortion on demand, that was its practical effect. Justices Byron White and William Rehnquist, in separate dissents, criticized the Court for enforcing a right not specified in the Constitution to overturn statutes that were no more restrictive than those widely in force when the Fourteenth Amendment was adopted. In addition, they criticized the Court for the trimester framework, which, in their view, was arbitrary. If the state had an interest in protecting the potential life of the fetus, that interest existed, and was equally strong, through the entire pregnancy. Further, they said, the Court's balancing of competing interests and careful laying out of what doctors could do in various circumstances resembled a statute.

Three justices appointed by President Richard Nixon joined the majority in Roe, whose outcome appears to be inconsistent with the sort of “strict construction” of the Constitution that they were said to support. In political terms, Roe is probably best understood as part of the Court's attempt to respond to and develop support within an important emerging constituency, the organized women's movement. Although the opinion did not treat the issue as one of gender discrimination, there were plainly questions of gender at stake in the abortion controversy, for it was widely understood that the burdens of undesired pregnancy fell exclusively on women. Restrictive abortion laws have typically been enacted by legislatures dominated by men. This practice could have been treated as raising questions of gender discrimination. The Court's failure to present its opinion on these grounds may have been a serious tactical error, for the flaws of Blackmun's privacy analysis, employing a newly discovered constitutional “right,” were widely noted after Roe was decided.

Criticism and Aftermath of Roe

Academic critics of Roe argued that invalidating legislation where there was no constitutional text or history to indicate that the legislation contravened fundamental values protected by the Constitution was reminiscent of the Lochner v. New York era, when the Court invalidated many statutes aimed at improving the economic conditions of workers on the ground that the statutes violated a “liberty of contract” nowhere spelled out in the Constitution (see Contract, Freedom of). Critics also pointed out that, given the acknowledged impact of abortion on the fetus and the medical dimensions of the technique, it was silly to treat the case as one involving “privacy” in the way that Griswold, which was about the use of contraceptives, involved actions performed in the privacy of the home.

Academic defenders of Roe offered two lines of argument. Some suggested that the case should be reconceptualized as a case of gender discrimination, which, they argued, was indeed barred by the Equal Protection Clause of the Fourteenth Amendment. Others agreed that Roe resembled Lochner but argued that the vice of Lochner was not that it enforced values not found in the constitutional text but that it enforced values that were not fundamental according to any well‐developed theory of rights, whereas the right to privacy, or to personal autonomy in sexual matters, was fundamental under many uncontroversial versions of liberal political theory.

Roe was even more controversial among the public. It generated a substantial “right to life” movement that lobbied legislatures to adopt regulations that went as far as possible within the Roe framework to restrict the availability of abortions and was particularly influential in gaining power within the Republican party, whose presidential candidates in the 1980s agreed not to appoint judges who were sympathetic to the constitutional analysis adopted in Roe.

The Court adhered to the Roe analysis for the next decade, but in several important cases it upheld legislative attempts to restrict a woman's right to choose an abortion. Perhaps the most important early such decision was Harris v. McRae (1980), which held that Congress did not violate the Constitution when it prohibited the use of Medicaid funds to pay for nontherapeutic abortions. In an earlier decision, Maher v. Roe (1977), the Court had held, similarly, that the states were not required to fund abortions for indigent women. (Most states do not fund nontherapeutic abortions, but some do.)

A predicted likely effect of these decisions was the return to the situation that prevailed before Roe, in which women who could afford them secured abortions relatively easily, while women without means were forced to rely on illegal abortions or, like Jane Roe, left to carry their unwanted pregnancies to term. The actual impact of Harris, however, is uncertain, since despite the absence of public funding legal abortions rose steadily, reaching a high of about 1.6 million abortions annually in 1991. Private charitable sources now fund a majority of those abortions.

Other restrictions the Court upheld were requirements regarding record keeping about abortions and regulations requiring the notification of the parents of a minor woman seeking an abortion unless the woman could show a court that notifying the parents was inappropriate. The Court, however, did strike down requirements of parental and spousal consent as well as a variety of regulations designed to make the decision to have an abortion more difficult (e.g., Akron v. Akron Center for Reproductive Health, 1983; Thornburgh v. American College of Obstetricians & Gynecologists, 1986).

The retirements of Burger and Stewart, both of whom were in the majority in Roe, gave President Ronald Reagan the opportunity to begin to reshape the Court's position on the abortion issue, but it was the retirement of Justice Lewis Powell in 1987 that provided the greatest opportunity for change. Reagan nominated Judge Robert Bork to succeed Powell, in part because of Bork's vigorous and well‐known opposition to Roe. That opposition was a source of great concern to supporters of Roe, who formed an important part of the political coalition that defeated Bork's nomination.

In 1989 the Court, with Justice Anthony Kennedy sitting in an abortion case of the first time, came close to overruling Roe in Webster v. Reproductive Services, but in the end a majority of the justices held only that two additional restrictions on abortions were relatively minor extensions of what Roe itself allowed. Partisans on both sides of the abortion issue, however, took Webster as a signal that further political action was appropriate. Abortion‐rights activists, in particular, realized that the right to choose abortion might no longer be adequately protected in the courts, and they revived the sort of political lobbying in which they had engaged prior to Roe. Immediately after Webster two gubernatorial elections suggested that the threat to abortion rights was an important factor in the election of two Democratic governors, but as the Webster decision became part of the overall political landscape the implications for the long term were less clear.

The most significant threat to Rose emerged in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey. A deeply and bitterly divided Court sustained the Pennsylvania law placing certain restrictions on access to abortions, but the justices refused to overturn the Roe precedent. Justice Sandra Day O'Connor's opinion reaffirmed that a woman has a constitutional right to an abortion before the fetus attains viability, at roughly six months of pregnancy. In the wake of Casey, anti‐abortion groups turned to new tactics designed to harass persons attempting to use abortion clinics and those who worked in them. The justices in National Organization of Women v. Scheidler (1994) held that abortion clinics could deal with these tactics by invoking the Federal Racketeering law to sue violent antiabortion protest groups for damages.

Bibliography

• Marian Faux, Roe v. Wade (1988).
• Laurence Tribe, Abortion: The Clash of Absolutes (1990)

— Mark V. Tushnet

For more information on Roe v. Wade, visit Britannica.com.

• 410 U.S. 113 (1973)
• Vote: 7–2
• For the Court: Blackmun
• Concurring: Douglas, Stewart, and Burger
• Dissenting: White and Rehnquist

In August 1969 an unmarried pregnant woman living in Texas wanted to terminate her pregnancy by having an abortion. Her doctor refused this request because Texas law made it a crime to have an abortion unless the operation was necessary to save the mother's life. So the woman sought legal help and filed suit against Henry Wade, district attorney for Dallas County, Texas. Throughout the legal proceedings, the woman was identified as Jane Roe to protect her anonymity. The plaintiff later was identified by the media as Norma McCorvey.

Jane Roe argued that the Texas abortion laws were unconstitutional. So she requested an injunction to restrain Henry Wade from enforcing them.

The Issue

Roe's lawyers claimed that the Texas abortion laws violated her rights under the due process clause of the 14th Amendment, which prohibited states from depriving their citizens of life, liberty, or property without due process of law. Does the 14th Amendment protect the right of a woman to have an abortion? Are state laws prohibiting abortion unconstitutional?

Opinion of the Court

The Supreme Court ruled that the Texas statutes on abortion were unconstitutional and that a woman did have the right to terminate her pregnancy. Justice Harry Blackmun wrote, “The right of privacy…whether it is to be found in the Fourteenth Amendment's concept of personal liberty…or…in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”

Justice Blackmun recognized that a woman's right to an abortion could be limited by “a compelling state interest” to protect her health and life. Based on medical evidence, Justice Blackmun concluded that during the “second trimester” of a woman's pregnancy (months 4 to 6), the state might intervene to regulate abortion to protect the mother's well-being. And the state could regulate or prohibit abortion during the third tri-mester (months 7 to 9). However, during the first trimester (months 1 to 3) of a pregnancy, it seemed unlikely that there would be “a compelling state interest” to restrict abortion rights to protect the health and life of the mother.

Dissent

Justice Byron White could not find in the Constitution the right to privacy upon which the Roe decision was based. He wrote, “I find nothing in the language or history of the Constitution to support the Court's judgment…This issue, for the most part, should be left with the people and the political processes the people have devised to govern their affairs.” Justices White and William Rehnquist both objected to the Court's involvement in a question they believed should be left to state governments to decide, without interference from the federal courts. They also believed that the Roe decision unjustly disregarded the protection due to the life of the fetus.

Significance

The Roe decision has generated continuing controversy. Women's rights advocates have hailed Roe as a landmark victory. Its critics can be roughly divided into two groups: those who oppose the decision because they believe abortion is murder and those who believe that the Court improperly substituted its policy preference for the will of the people as expressed through their elected representatives in state governments.

Justice Byron White accurately remarked in his dissent that the right to an abortion is an issue about which “reasonable men may easily and heatedly differ.” And so it has been since 1973, when the Roe case was decided.

Efforts to modify or overturn the Roe decision have continued. In Webster v. Reproductive Health Services (1989), for example, the Court upheld provisions of a Missouri law that restricted the right to an abortion, a retreat from the Roe decision that stopped short of overturning it. Rust v. Sullivan (1991) limited the access of poor women to abortions by forbidding federally funded clinics, such as those run by Planned Parenthood, to advise patients about abortion. In Steinberg v. Carhart (2000), the Court ruled against state laws banning a type of late-term abortion known as “partial-birth” abortion.

See also Abortion rights; Privacy, right to; Webster v. Reproductive Health Services

Sources

• Marian Faux, Roe v. Wade (New York: Macmillan, 1988).
• David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, 1923–1973 (New York: Macmillan, 1993).
• Rosalind Rosenberg, “The Abortion Case”,” in Quarrels That Have Shaped the Constitution, edited by John A. Garraty (New York: Harper & Row, 1987).
• Laurence H. Tribe, Abortion: The Clash of Absolutes (New York: Norton, 1990).
• Sarah Weddington, A Question of Choice (New York: Putnam, 1992)

Roe v. Wade, 410 U.S. 113 (1973), the landmark case establishing a woman's constitutional right to an abortion, was initiated by attorneys Sarah Weddington and Linda Coffee with Norma McCorvey as one of the plaintiffs. A single pregnant woman known as "Jane Roe" to protect her privacy, McCorvey had been denied an abortion under a Texas law. The 7 to 3 decision, which also covered Doe v. Bolton, a Georgia case, upheld federal appeals court's decisions striking down provisions of both the Texas and Georgia laws. Effectively rendered unconstitutional were all statutes that either prohibited abortion (Texas) or encumbered legal abortions in such excessive regulation as to make then virtually unattainable (Georgia).

The decision was the culmination of ongoing efforts of several groups seeking decriminalization and reflected changing public opinion about abortion. Support for legal reform had grown stronger when the news broke that the drug thalidomide, extensively prescribed to alleviate morning sickness in the early stages of pregnancy, produced severe physical defects in children. In a much publicized incident, Sherry Finkbine, an Arizona woman who had taken thalidomide, requested an abortion with the support of her doctors. Because of the threat of prosecution by local authorities, the Finkbines, seeking a more favorable legal climate, fled to Sweden where abortion was legal. Her plight dramatized to both the medical profession and ordinary citizens the need for legal change, as did figures on illegal abortions, which ranged from 200,000 to 1,200,000 annually. Fatalities for the women undergoing the procedure, always estimates, were high. In 1955, the annual American loss of women's lives was put at from three thousand to eight thousand.

The justices, no longer able to avoid the issue, agonized over the decision—none more than Justice Harry Blackmun, who wrote the majority opinion resting the right to an abortion on the right to privacy. The right to privacy in sexual and reproductive matters, while not specified in the Bill of Rights, had recently evolved. Building on Griswold v. Connecticut (1965), a case involving the use of birth control by a married couple, abortion rights lawyers had persuaded the lower courts to extend the right of privacy implied in the Fourth Amendment's guarantee against unreasonable searches to other reproductive decisions, notably whether to carry a fetus to term. That right, however, was never intended by the Court to be absolute. After much internal debate concerning the cutoff point at which the state's interest in protecting potential life should take precedence over a woman's right to terminate a pregnancy, the majority reached a compromise that Blackmun tied to the trimester system. During the first three months of pregnancy, a woman was to be free to make the decision in consultation with her doctor. In the second trimester, the states could regulate abortion in order to protect maternal health, but could not prohibit the procedure. While rejecting the notion that the fetus from the moment of conception was a constitutionally protected "person" under the Fourteenth Amendment, the Court used the stage in fetal development when survival was possible outside the woman's body as the point at which state interest in protecting potential life took precedence. Since viability occurred at approximately the end of six months, Roe stipulated that states could prohibit abortions in the third trimester.

The decision, which imposed the Court's regulatory formula upon the states, evoked intense resentment and high praise. Irate legislators charged that their law-making function had been usurped. Abortion rights supporters, dismayed that only three states had legalized abortion by 1970, rejoiced. Catholic clergy attacked the decision as sanctioning the taking of a human life, while mainline Protestant clergy appreciated the option it offered the anguished women they counseled. Legal critics found the fragile textual backing for privacy to be weak constitutional grounding for abortion rights and the trimester formula to be problematic. Others argued that the Court had moved too far too fast. Its mistake, they argued, was abandoning an incremental approach to the abortion issue that would have produced smaller changes over time, allowing the public time to adjust. Pro-choice attorneys, while elated by the scope of the decision, also had legal concerns. Fearful that relying on privacy instead of equal protection made the decision constitutionally vulnerable, they further criticized Roe as too medicalized, privileging physicians' autonomy over women's. Concerned that state regulation in later trimesters would not take into account the needs of pregnant woman, feminists warned that the Court's compromise could lead to government coercion and involuntary motherhood.

What was indisputable was the immediate formation of a grassroots movement by opponents eager to erode the abortion rights conferred in Roe. Although the Court initially rejected state restrictions, in 1980 it upheld the "Hyde Amendment" by which Congress refused to fund even medically necessary abortions of indigent women (Harris v. Mc Rae, 488 U.S. 297), a practice that many states followed. And in Webster v. Reproductive Health Services (1989), the Court, by a 5 to 3 vote, upheld the right of Missouri legislators to deny the use of public employees and facilities to perform or assist abortions. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court finally reaffirmed Roe in a 5 to 3 vote. But though the formal right to an abortion had survived, other tactics of the antiabortion movement had reduced it as a practical option, especially for poor and rural women.

Bibliography

Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. Updated and with a new preface and epilogue. Berkeley and Los Angeles: University of California Press, 1998.

Petchesky, Rosalind P. Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom. Rev. ed. Boston: Northeastern University Press, 1990.

Siegel, Reva. "Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection," 44 (Jan. 1992): 261–381.

Click here to see full case study.

Roe v. Wade was a landmark decision by the U.S. Supreme Court, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), that declared a pregnant woman is entitled to have an abortion until the end of the first trimester of pregnancy without any interference by the state.

In a 7-2 decision on January 22, 1973, the Supreme Court struck down an 1857 Texas statute that made abortion illegal except where the life of the mother was in danger. The Court's opinion, as written by Justice Harry A. Blackmun, set forth guidelines for the drafting of future state legislation on the issue. In a long and detailed opinion, the Court specified the points during a woman's pregnancy when the interests of the state in the health of the mother and of the fetus emerge. Roe established the parameters of the abortion debate for decades to come.

The case involved an unmarried pregnant woman who was at the time identified only as Jane Roe in order to maintain her anonymity but who has since publicly identified herself as Norma McCorvey. McCorvey, a resident of Texas, wanted to have an abortion, but the existing state law prevented her from doing so. She filed a lawsuit in federal district court on behalf of herself and all other pregnant women. The suit sought to have the Texas abortion law declared unconstitutional as an invasion of her right to privacy as guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. She also sought to have an injunction, or court order, issued against the statute's enforcement so that she might go forward with the abortion. A physician, James Hubert Hallford, who was being prosecuted under the statute for two abortions he had performed, also filed suit against the law, as did a childless couple, the Does (Mary Doe and John Doe). A three-judge district court combined the cases of McCorvey and Hallford, and dismissed the suit brought by the Does on the grounds that neither of them had violated the law and Mary Doe was not pregnant.

The district court agreed with McCorvey that the law was unconstitutionally vague and violated her right to privacy under the Ninth Amendment—which allows for the existence of rights, like that of privacy, not explicitly named in the Constitution's Bill of Rights—and the Fourteenth Amendment. It refused, however to grant the injunction allowing her to go ahead with the abortion. McCorvey appealed the denial of the injunction to the U.S. Supreme Court. The Supreme Court agreed to hear the case along with another, Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), relating to a 1968 Georgia abortion statute. The Court dismissed Hallford's case because of the pending prosecutions against him. Hallford made no allegation of any substantial and immediate threat to any federal protected right that could not be asserted in his defense against the state prosecution. Nor did he allege harassment or bad-faith prosecution by the state. Hallford's case fell clearly within the ambit of the rule announced in prior Supreme Court cases that a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the state is prosecuting him or her (Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 [1971]; Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 [1971]; Boyle v. Landry, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 [1971]).

After hearing many months of expert testimony, the Court found the Texas abortion law to be unconstitutional. It declared that such laws "violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including [a] woman's qualified right to terminate her pregnancy." Chief Justice Warren E. Burger chose Justice Blackmun—who had served for many years as legal counsel to the Mayo Clinic, in Rochester, Minnesota—to write the Court's opinion. Justice William H. Rehnquist wrote a dissenting opinion.

In its opinion, the Court ruled that the right to terminate a pregnancy is part of a woman's right to privacy. At the same time, however, it declared that "[t]his right is not unqualified and must be considered against important state interests in regulation." The state, the Court argued, "has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life," interests that change in importance as the pregnancy progresses. In the first trimester, the Court said, the state has no interest in regulating the right of a woman to obtain an abortion. In making this decision, the Court pointed to evidence showing that the health of the mother is not endangered by an abortion during the first twelve weeks of pregnancy. According to that evidence, women are less likely to die from complications of an abortion conducted in the first trimester than from carrying their pregnancy to term. The Court also found that the state may require that all abortions be performed only by licensed physicians under medically safe conditions.

The Court found that the state's interest in regulating abortion and protecting a pregnant woman's health emerges in the second trimester. "[I]n promoting its interest in the health of the mother," the Court declared, "the state may regulate the abortion procedure in ways that are reasonably related to maternal health." It may, for example, impose requirements regarding the qualifications and licensing of those performing abortions; it may also regulate where abortions can be performed. Beyond these rules, the woman, in consultation with her physician, is free to decide whether to end her pregnancy.

In the third trimester, the interest of the state in "the potentiality of human life"—that is, the life of the fetus before birth—makes it possible to regulate and even prohibit abortions except when necessary to save the life or health of the mother. By this period, the fetus is determined to be viable—that is, capable of living outside the womb—and therefore entitled to protection by the state.

The Court did not accept arguments that the fetus be regarded as a person within the meaning of the Due Process Clause of the Fourteenth Amendment, which declares that no state shall "deprive any person of life, liberty, or property, without due process of law" (§ 1). "There is no medical or scientific proof that life is present from conception," wrote the Court.

[W]e need not resolve the difficult question of when life begins, when those trained in the respective fields of medicine, philosophy and theology are unable to arrive at any consensus. The judiciary at this point in the development of man's knowledge is not in a position to speculate as to the answer.

As author of the Court's opinion, Justice Blackmun made it clear that abortion was an extraordinarily difficult issue:

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement free of emotion and predilection.

Although the opinion went into the "medical and medical-legal" history of the issue and quoted medical authorities frequently, the Court chose to decide the case on constitutional rather than medical or philosophical grounds. In this case, the crucial constitutional consideration was the right to privacy, which some would argue is as old as the Constitution. The most important precedent for the Roe decision on this issue was the 1965 Supreme Court case Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510, which clearly set forth a constitutional right to privacy—in this instance, a married couple's right to privacy when deciding whether or not to use contraceptives. Roe was in fact part of a gradual expansion of the right to privacy during the 1960s and 1970s, to include not only a right to freedom from physical searches and seizures, for example, but also a right to make individual decisions free of coercion, whether physical or psychological, especially in matters regarding the family and reproduction.

In his dissent in Roe, Justice Rehnquist differed with the majority on a number of points. For one thing, McCorvey had given birth in 1970 and had given her child up for adoption. He argued that because McCorvey was no longer in the first term of her pregnancy, indeed was no longer pregnant, when her case came before the Supreme Court, the case had become hypothetical rather than actual and therefore outside the jurisdiction of the Court. Rehnquist also argued that the regulation of abortion should be left to the states and that the right of privacy had nothing to do with the case. "I have difficulty in concluding, as the Court does, that the right of ‘privacy' is involved in this case," he wrote. "The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment." Moreover, in Rehnquist's view, the Texas abortion law met the test of having "a rational relation to a valid state objective." Rehnquist's fellow dissenter in Roe, Justice Byron R. White, called the decisions in Doe and Roe "an example of raw judicial power" and "an improvident and extravagant exercise of the power of judicial review" (Doe, 410 U.S. 179 at 221, 93 S. Ct. 762).

The Roe decision has largely been perceived as a victory for the abortion reform and women's rights movements and a defeat for antiabortion forces, but in many ways it was a compromise between the two sides. While antiabortion forces were unhappy with the establishment of a right to abortion for women in the first trimester of pregnancy, pro-abortion groups were displeased with the limits on abortion allowed in the last two trimesters of pregnancy. The Court also compromised in its decision as to when life begins and who is to be defined as a person with full rights under the Constitution. It did not agree with the pro-abortion movement, which declared that life does not begin until birth, or with the antiabortion movement, which maintained that life begins at conception. Instead, it chose to define the rights of the fetus as emerging when it reaches the stage of viability, when it can survive independently outside of the womb. In making this decision, some have argued, the Court made personhood subject to change, particularly as science has moved the time of viability further back.

Feminists and women's rights advocates saw Roe as a vindication of women's reproductive rights and a step toward greater equality between the sexes. Such equality, they argued, can happen only when women have the ability to control reproduction. Others, opposed to the decision in Roe, believed that the Supreme Court had overstepped its bounds by effectively making new social policy, a task they felt was better left to elected members of state legislatures. Still others felt that the Court had violated the sanctity of human life by permitting abortion. In any case, Roe has been a far-reaching decision, affecting many spheres of U.S. life, including medicine, religion, and the family.

In the decades following Roe, antiabortion groups have mounted continual campaigns to repeal the decision. Despite these challenges, the Supreme Court has repeatedly supported the essential elements of that decision, particularly as regards the right to privacy.

See: Due Process of Law; Fetal Rights; Fetal Tissue Research; Griswold v. Connecticut; Penumbra.

An extremely controversial Supreme Court decision in 1973 that, on the basis of the right to privacy, gave women an unrestricted right to abortion during the first three months of pregnancy. Pro-choice forces have hailed the decision, whereas those associated with the “right-to-life” (pro-life) movement have opposed it.