Roe v. Wade: Explained


Editor’s Note: The following article was written by past Defiant staff writer Lauren Cohen.

Roe vs. Wade was a Landmark Supreme Court Case that tested the legality of abortion and whether a woman had a right to terminate her own pregnancy. The plaintiff, Jane Roe sued Henry Wade, the district attorney of Dallas County, Texas, which was Roe’s place of residence. The name Jane Roe was an alias for Norma McCorvey, a single woman who became pregnant and sought to terminate her pregnancy through an abortion, performed by a doctor, in order to ensure that her health would not be compromised. During this time in Texas, abortions were illegal unless it was proven that the women’s life was in danger as a result of the pregnancy. Prior to this time, many women tried to induce an abortion on their own, would go to unqualified clinics, or would even travel out of state to have the procedure performed. Jane Roe sued because the existing law violated her rights as given by the 1st, 4th, 5th, 9th, and 14th amendments to the United States Constitution. The essential issue for Jane Roe was that the state did not have the right to intrude on her right to privacy, religion, privileges and immunities, due process, as well as other unenumerated rights. Initially, a judgement was reached that was not in favor of her petition. After tough litigation and multiple appeals, her case was eventually heard in the Supreme Court of the United States in 1973. By the time the case was ruled on in the Supreme Court, she has already delivered a baby and put it up for adoption since she was single. At this time, being a single mother would have made her the subject of ridicule and would have had significant emotional consequences. The Supreme Court ruled in her favor in a 7-2 decision, agreeing that her rights had been violated by this Texas law.

The justices involved in the case included: Chief Justice Warren Burger, and the other justices included, William Douglas, William Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Powell, and William Rehnquist. Justices White and Rehnquist dissented, the other seven justices ruled in favor of Jane Roe’s petition. Justice Blackmun wrote the court’s opinion that justified the ruling. The dissenting opinion was written by Justice White. The majority opinion was that a woman had a right to privacy under the 14th amendment and therefore, has the right to right to an abortion. However, they restricted this to the first trimester in order to prevent an abortion of a viable fetus. The dissenting opinion was that the plaintiff did not have a credible case because she was not in the first trimester of her pregnancy and they concluded that an abortion was not a private matter.

The dissenting opinion in this case focused on the credibility of Jane Roe’s petition, since she was past the first trimester of her pregnancy and therefore, would not be able to receive an abortion anyway. Using the phase of the pregnancy as a basis of the argument seems to be based on medical opinions or other information that maintained that a pregnancy could only be terminated at an early stage. The basis for this conclusion is not explicitly stated in the dissenting opinion. Nonetheless, it seemed to set up a foundation for later challenges to the Roe vs. Wade decision. For example, a number of cases were brought to the courts, arguing that after a certain period in the pregnancy, the fetus needed to be considered as a living person, who would be entitled to the same rights as the mother. This led to ethical and medical debates, including the question of at what point is a fetus viable and also, at what point is a fetus a person. People arguing against the right to abortion differed with regard to what point in time this would be within the pregnancy. Early on, the detection of a heartbeat was viewed as a marker, though in reality, this may not provide a reasonable basis since the heart can be beating yet the fetus may not developed to a point in which it could be viable. If one were to rely on a medical threshold of this kind, it seems more reasonable that using the stage of brain development makes more sense since this has more bearing on whether the fetus is close in it’s function to a baby. At the other extreme, some anti-abortion advocates argue that the embryo is alive from the moment of conception and therefore, all abortion is unethical.

The most important case that set precedent for Roe vs. Wade was Griswold vs. Connecticut. At the time, the law in Connecticut made it illegal for any drug or mechanical device to be used to prevent contraception. The plaintiff, Griswold sued the state of Connecticut for violating her right to privacy. The Supreme Court ruled that it was unconstitutional to deny someone their right to obtain methods of birth control. Prior to Griswold, a number of other cases set precedent for Griswold vs. Connecticut such as Tileston vs. Ullman.

Roe v. Wade has significant constitutional implications. The ruling in favor of the plaintiff Roe, established that the 14th amendment of the United States Constitution applies to a woman’s right to control her own body and therefore to, terminate her pregnancy if necessary. The amendment states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” By the court applying this section of the 14th amendment, it extends these enumerated rights to include the right to privacy, and that the right to privacy includes a right to self-determination relative to personal health decisions. The original case argued that Wade, the district attorney of Dallas County, Texas, was also infringing on Roe’s rights under the 1st, 4th, 5th, and 9th amendments. The first amendment which ensures the right to freedom of speech, religion, assembly, petition, and press is particularly important at a constitutional level because it provides an overriding principle upon which all other amendments must harmonize. However, the ruling of the Supreme Court of the United States does not make explicit references to this amendment, though it is implied since the 1st amendment ensures individual freedoms upon which the right to privacy is derived. The 4th and 5th amendments establish the right to due process and also protection from illegal search or seizure. Similar to the 1st amendment, it was not explicitly cited as a basis for the Supreme Court ruling, though these powers are foundations for the 14th amendment. In particular, the protection against illegal search or seizure is relevant since actions by the state to insert itself between a woman and her healthcare provider can be viewed as a form of seizure. In effect, the state would be gaining control of the woman and would be limiting her actions which is a form of seizure or arrest. Finally, the 9th amendment indicates that people are entitled to more rights than our enumerated, establishing a process within the constitution by which other amendments could extend on enumerated rights such as the 14th amendment.

Roe vs. Wade was among the Supreme Court decisions that had the greatest social and political impact in the late 20th century. It provided a clear basis for not only a woman’s right to have an abortion but more broadly, the right to control her own body. Furthermore, it set an important precedent for the right to privacy under the 14th amendment. This ruling had a tremendous impact on women’s lives, beyond reproductive rights, in that it also provided a foundation for establishing greater equality for women under the law and also economic impact in the workplace along with the education system. Interestingly, the dissenting opinions in the case have little relevance to later controversy that developed as certain religious groups had strong objections to the concept of abortion based on their beliefs that a fetus is a living being and that abortion is an act of murder. The intense debate evolved from this ruling between what was labeled as “pro-choice” and “pro-life” advocates. Not only did it have an impact on women’s healthcare, it also became the focal point of politics in the United States from the 1980’s to this day.

The central conflict that remains a major issue to this day is between a woman’s right to privacy under the 14th amendment versus a fetus’ constitutional rights based on the belief that the fetus is a living person. The anti-abortion position has largely emerged from religious groups and their insistence that abortion is murder and therefore, prohibited by the Ten Commandments. The anti-abortion position was relabeled over the years to utilize the label of “Pro-Life”. While the logic of makes sense from the standpoint of their belief system, it oversimplifies the ethical issues confronting the woman. One can just as easily argue that taking an action that preserves the health and wellbeing of the mother is more “pro-life”, particularly when the fetus is at such an early stage of development that it is not viable or a “person” yet. Unfortunately, this ongoing debate in society has remained intense and has extended far beyond the original issues in the case. It has contributed to polarization, division, and partisan politics. It has become an easy slogan that one can use as a quick point of reference for deciding whether another person is against or with you. If much of the rhetoric and emotion were removed from the debate, it should be possible to establish logical, ethical, and feasible guidelines for abortion.

Roe v. Wade was settled almost fifty years, it continues to be a source of political and social conflict in America to this day. In fact, this very week, the legislature of the state of Alabama passed a total ban on abortion at every stage of pregnancy expect if it can be proved that the mother’s life is in immediate danger. Even women who have become pregnant as a result of rape or incest will be unable to receive an abortion and be forced to carry the fetus or seek out illegal options. A peculiar aspect of the law arises from the fact that a woman must seek an abortion before she knows she is pregnant but this is largely impossible and an absurd notion. A doctor who performs this procedure could be sentenced to 99 years in prison, truly a draconian act. This bill is currently in the hands of the governor of Alabama who is likely to sign it into law. This legislation is the most radical attack on a woman’s right to choose and directly challenges Roe v Wade. Based on Roe v. Wade, the Alabama law is unconstitutional based on the 14th amendment which guarantees the right to privacy. If signed into law, the ACLU and other plaintiffs will quickly sue the state of Alabama with a strong probability that it will end up in the United States Supreme Court. While this is the most extreme attack on Roe v. Wade, a number of Republican state legislatures have enacted similar laws banning abortion though not to this extreme. Over the past 20 years, opponents to a woman’s right to choose have chipped away at Roe v. Wade and little by little, made it more difficult for women to obtain abortions. That approach has been successful because the public does not perceive that an additional regulation completely eliminates a woman’s right to have an abortion. As a result, this right guaranteed by the 14th amendment, is being made ineffective. If the current laws are adopted, it is likely that a major backlash will occur, as woman as well as men who support their rights, rise up and mobilize to overturn these draconian laws. It is striking that the conflict over Roe v. Wade has reached a level that was not seen since the Supreme Court reached this decision. We are at a point in history where civil liberties are under attack and hopefully, the progress that has been made over the past fifty years will not regress. We cannot turn back, we must push forward.