Roe vs. Wade: The Decision and its Impact on American Society
“The Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment. It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas. The question then becomes whether the state interests advanced to justify this abridgment can survive the ‘particularly careful scrutiny’ that the Fourteenth Amendment here requires. The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. But such legislation is not before us, and I think the Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment of personal liberty worked by the existing Texas law. Accordingly, I join the Court's opinion holding that that law is invalid under the Due Process Clause of the Fourteenth Amendment” (Craig and O’Brien 17).
On January twenty-second, 1973 Justice Harry Blackmun delivered the opinion of the Supreme Court regarding the Roe vs. Wade case. A pregnant single woman, “Jane Roe,” brought a class action lawsuit challenging the constitutionality of the Texas criminal abortion laws, which proscribed procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. Norma McCorvey, the real name of the plaintiff, was young and divorced at the time, searching for a solution to her unplanned pregnancy. “No legitimate doctor in Texas would touch me,” stated McCorvey. “There I was – pregnant, unmarried, unemployed, alone and stuck” (Craig and O’Brien 5). The plaintiff's assertion was that prohibiting abortion at any time before birth violated a woman's constitutional right to privacy. The Supreme Court later agreed with Mrs. McCorvey, justifying the legality of abortion under the fourteenth amendment. A person’s right to privacy now extended to choosing an abortion. Although the Court avoided the issue of when life actually begins, abortion became legal under this landmark Supreme Court decision. The debate over the legality of abortion had taken place in America for several decades, and the final decision rendered by Roe vs. Wade resonated among all Americans, influencing society to date.
Until the last third of the nineteenth century, when it was criminalized state by state across the land, abortion was legal before “quickening,” which is approximately the fourth month of pregnancy. Colonial home medical guides gave recipes for instigating abortions with herbs that could be grown in one's garden or easily found in the woods. By the mid-eighteenth century, commercial preparations were widely available. Unfortunately, these drugs were often fatal. The first statutes regulating abortion, passed in the 1820s and 1830s, were actually poison-control laws: the sale of commercial abortifacients was banned, but abortion itself was not outlawed. Despite these new laws, the abortion business was booming by the 1840’s, including the sale of illegal drugs, which were widely advertised in the popular press.
However, this trend would soon change. Following the 1840’s, abortion would soon be under attack, and a string of anti-abortion laws would be passed until the twentieth century. The leading force behind the criminalization of abortion was physicians and the American Medical Association. The AMA was founded in 1847, and the illegalization of abortion was one of its highest priorities. To the growing movement, “abortion was both an immoral act and a medically dangerous one, given the incompetence of many of the practitioners then” (Joffe 28). However, the opposition went beyond these factors. To many people during the end of the nineteenth century, abortion represented a threat to male authority and the traditional role of a woman in the time period. Abortion was a symbol of unbridled female sexuality, expressing selfish and self-indulgent qualities. The AMA’s Committee on Criminal Abortion expressed this view blatantly in 1871. “She yields to the pleasures – but shrinks from the pains and responsibilities of maternity; and, destitute of all delicacy and refinement, resigns herself, body and soul, into the hands of unscrupulous and wicked men” (Joffe 29). As the twentieth century dawned, over forty states had completely outlawed abortion unless the mother’s life was in direct harm, and many others had placed strict regulations. However despite these emerging laws, people still performed abortions illegally for decades until the Roe vs. Wade decision. A study performed by Frederick Taussig in 1936 recorded an estimated half million illegal abortions. In 1953, ninety percent of all premarital pregnancies were aborted illegally, and twenty percent of married couples performed abortions. Illegal abortions rose to over a million a year until Roe vs. Wade. Although the law dictated the morality of abortion, abortion was still a considerable aspect of society.
The Roe vs. Wade decision was first argued in December 1971, and had been before the Supreme Court for over a year. Although this decision would later be intensely analyzed and debated, little attention was brought upon the case at the time. Chief Justice Burger opened the Court’s oral arguments, and each side had only thirty minutes to present their case and answer questions. Sarah Weddington, the head lawyer defending Norma McCorvey argued that abortion needed to be legalized beyond in the case where a woman’s life is threatened. The physiological and psychological harms also warranted an abortion. However, since the Supreme Court has no jurisdiction over public policy, Weddington argued that current abortion laws violated the fourteenth amendment. The fourteenth amendment guarantees the right to liberty without due process of law, and the decision contended this right was extended to a woman’s right to choose to be pregnant. In her closing argument, Weddington stated if “liberty is meaningful… that liberty to these women would mean liberty from being forced to continue the unwanted pregnancy” (Craig and O’Brien 17).
Jay Floyd, the assistant attorney general of Texas, next presented his case against the legalization of abortion. Weddington had argued that many women had no other choice besides abortion because of their socioeconomic status. However, Floyd contended that despite external factors, each person had free autonomy. “Now I think she makes her choice prior to the time she becomes pregnant. That is the time of her choice. It’s like, more or less, the first three or four years of our life we don’t remember anything. But once a child is born, a woman no longer has a choice, and I think pregnancy then determines that choice” (Craig and O’Brien 17). Thus, Floyd contended, the fourteenth amendment was not violated since pregnancy was based on free will, and liberty was not denied. If pregnancy was a deliberate choice on the woman’s part, then abortion was not warranted.
Another crucial aspect of the Roe vs. Wade trial was the status of when a fetus is guaranteed constitutional rights. In response to Texas’ harsh abortion restrictions, Floyd explained that Texas “recognized the humanness of the embryo, or the fetus” and had “a compelling interest because of the protection of fetal life” (Craig and O’Brien 17). However, there were several flaws with this statement in the court. First, the topic of the Court was not the constitutional rights of embryos, but whether abortion violated a person’s right to liberty. Second, no state law or court decision had equated abortion with murder. Thus, Floyd’s contention amounted to a mere personal opinion, with no bearing on the case. The Court needed to uphold the constitutional rights of the woman before protecting the “rights” of the unborn fetus. The fourteenth amendment applies only “to all persons born or naturalized in the United States,” and if the Court guaranteed the fourteenth amendment to unborn children, it would be an extreme case of judicial activism (Craig and O’Brien 20).
After two years listening to arguments, the Supreme Court finally made its decision. The right to privacy and liberty was broad enough to encompass a woman’s decision for abortion. The fourteenth amendment guaranteed personal liberty, which includes a woman’s body and unborn fetus. Although the Court established the legality of abortion, they left the responsibility of implementation to the states. Like Brown vs. The Board of Education of Topeka, a general decision on constitutionality needed to be interpreted and implemented by local governments. “Where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest,’ and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake” (Craig and O’Brien 27). Although the court did not provide any specific methods of implementation, it did set broad guidelines regarding the stage of the fetus. A mother had the sole choice to abort the child in the first trimester, but limitations on abortion were allowed in the second and third trimesters if the right to liberty and privacy of the mother was still preserved.
The initial reactions to the Roe vs. Wade decision were intense and extreme, as abortion remains to be an extremely controversial issue. The president of Planned Parenthood hailed the decision as “a wise and courageous stroke for the right of privacy, and for the protection of a woman’s physical and emotional health” (Craig and O’Brien 32). However, there were as many supporters of the decision as dissidents. Cardinal Terence Cooke attacked the Justices, claiming that “whatever their legal rationale, seven men have made a tragic utilitarian judgment regarding who shall live and who shall die” (Craig and O’Brien 32). Roe vs. Wade elevated the abortion issue to the national spectrum, becoming a source of political and social struggle in the years to come. On the tenth anniversary of the decision, The Washington Post illustrated its effect on society. “[Roe vs. Wade] has drastically changed the Court’s image, fostered wholesale attack on ‘judicial activism’ and mobilized thousands of supporters and opponents of legalized abortion in a debate that has reshaped the political terrain in many states and, at times, has virtually halted the work of Congress. Few court decisions have had a more immediate impact on such a personal aspect of American life” (Craig and O’Brien 35).
The Roe vs. Wade decision has affected all aspects of society, from the role of the Supreme Court to the human status of an unborn fetus. Many scholars refer to the case as the “Dred Scott” of the twentieth century. The decision sparked a national discussion on judicial activism, and the role the Supreme Court has on public policy. No other case like Roe vs. Wade had had such a direct impact on public law. Furthermore, the case drew an imaginary line, diving the country into either the pro-life or pro-choice category. Almost immediately after the decision, a multitude of pro-life and pro-choice groups were formed, and abortion has remained a pressing political, social, and moral issue. No other subject has resonated such disparity and importance in American politics. Finally, the Roe vs. Wade decision is considered a representation of the changing society during the 1970’s. In the past, abortion was highly restricted and opposed, mimicking the conservative society. However, as the 1970’s marked a rise in liberalism and the importance of individual freedom, the Roe vs. Wade decision to legalize abortion mirrored this willingness to embrace a person’s autonomy. Roe vs. Wade marked a dramatic change in government, politics, and society.
Craig, Barbara Hinkson and David M. O’Brien. Abortion and American Politics. Chatham, New Jersey: Chatham House Publishers, 1993.
Hickok, Eugene W. Justice vs. Law: Courts and Politics in American Society. New York: Free Press/Macmillan, 1993.
Joffe, Carole. Doctors of Conscience: The Struggle to Provide Abortion Before and After Roe v. Wade. Boston: Beacon Press, 1995.
Olasky, Marvin. Abortion Rites: A Social History of Abortion in America. Washington DC: Regnery Publishing, 1992.
Rubin, Eva R. Abortion, Politics, and the Courts: Roe v. Wade and its Aftermath. New York: Greenwood Press, 1987.
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