Constitution Daily

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On this day, the Roe v. Wade decision

January 22, 2021 by NCC Staff


On January 22, 1973, the Supreme Court handed down a decision that continues to divide the nation to this day. In Roe v. Wade, the Court ruled that a state law that banned abortions except to save the life of the mother was unconstitutional under the Fourteenth Amendment. The decision has proven to be one of the most controversial cases in the Court’s history.

Norma L. McCorvey discovered that she was pregnant in June 1969. It was to be her third child, but McCorvey wished to have an abortion. At the time, Texas law only allowed for abortion in cases of rape, incest, or to save the life of the mother. McCorvey was advised by her friends to falsely assert that she had been raped, but there was no police report to back up this claim. Instead, McCorvey attempted to have an illegal abortion, but she soon discovered that the authorities had shut down the facility.

McCorvey visited a local attorney seeking advice on what to do next. The attorney assisted McCorvey with beginning the process of putting her child up for adoption, and also referred her to Linda Coffee and Sarah Weddington, two recent graduates of the University of Texas Law School.

Coffee and Weddington brought a lawsuit on McCorvey’s behalf (who went by the alias “Jane Roe” throughout the case to protect her identity) claiming that the state’s law violated Roe’s constitutional rights. The suit claimed that, while her life was not in danger, Roe had a right to obtain an abortion in a safe, medical environment within her home state. The United States District Court for the Northern District of Texas agreed, and ruled that the Texas law violated Roe’s right to privacy found in the Ninth Amendment, and was therefore unconstitutional.

Texas appealed the decision to the Supreme Court, and the case reached the Court in 1970. However, the Court decided to wait to hear Roe until they had decided Younger v. Harris and United States v. Vuitch. After the Court announced the decision in Vuitch, which upheld the constitutionality of a Washington, D.C. statute that similarly outlawed abortion, the Court voted to hear Roe and the closely related case of Doe v. Bolton.

Arguments in the case began on December 13, 1971. Shortly before that date, Justices Hugo Black and John Marshall Harlan II retired from the bench. Chief Justice Warren Burger decided that Roe and Doe, as well as the other cases that were scheduled on the docket, should go on as planned.

Jay Floyd, who was representing Texas in the case, opened his argument with what commentators have described as the “worst joke in legal history.” In reference to Coffee and Weddington, the female attorneys representing McCorvey, Floyd began by saying, “Mr. Chief Justice, and may it please the Court. It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.”

The rest of the case was argued that day. However, as Justice Harry Blackmun was attempting to draft a preliminary opinion based upon the law’s vagueness in May 1971, he proposed to his colleagues that the case be reargued. After some debate on the issue, the case was reargued on October 11, 1972. Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for the case’s reargument in front of the Court.

Justice Blackmun remained as the justice selected to the Court’s opinion following the second argument, and on January 22, 1973, the Court issued its 7-2 decision. In it, the Court determined that Texas had violated Roe’s constitutional right to privacy.

Drawing on the First, Fourth, Ninth, and Fourteenth Amendments, the Court said that the Constitution protects an individual’s “zones of privacy.” Citing earlier cases that ruled that contraception, marriage, and child rearing were activities included in these “zones of privacy,” the Court found that the zone was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Because the Court determined that abortions were within a woman’s “zone of privacy,” it was therefore ruling that a woman had a fundamental right to the procedure. Although this right was fundamental, that did not mean that it could not be limited.

The Court said that as a fundamental right, any limitations on abortion must meet the standards of strict scrutiny. This meant that there must have been “compelling state interest” in regulating abortions, and the legislation must have been narrowly tailored to meet this “compelling” state interest.

The Court then assessed the state’s interests. Justice Blackmun found two legitimate government interests: protecting the mother’s health and “protecting the potentiality of human life.” In order to balance the fundamental privacy right to abortion with these two state interests, the Court created the trimester framework. This solution determined when the right to abortion would be without limitations, and when the state’s interests would be compelling enough to outweigh the woman’s right to choose.

The Court said that, during the first trimester, the abortion decision was left to the woman and her doctor. Following the first trimester, until fetal viability, the state’s interest in the mother’s health reaches the compelling level, and the state can regulate the procedure, only if it “reasonably relates to the preservation and protection of maternal health.” When the point of fetal viability is reached, then the state could protect its interest in “potential life” and regulate abortion to that end. This includes banning that practice of abortion at that stage in the pregnancy.

In 1992, the Court adjusted the trimester framework in Planned Parenthood of Southeastern Pennsylvania v. Casey. In that case, the plurality asserted, under the Fourteenth Amendment, that the mother had a constitutional right to abortion and that this right could not be unduly interfered with by the state prior to viability—what’s known now as the “undue burden” test.

Ever since the Roe v. Wade decision was issued in 1973, the case has remained one of the most contentious in the public sphere. It has inspired political campaigns and movement, and sparked debates throughout the nation around ethics, religion, biology, and constitutional law.


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