The landmark 1973 U.S. Supreme Court ruling in Roe v.
Wade struck down state abortion laws as illegal because of their infringement on the privacy rights inherent in the U.S. Constitution. This case was the climax of a series of actions by doctors’ organizations, state legislatures, and women’s groups to legalize abortion in order to regulate surgical procedures. However, the case was widely seen by Christian groups and political conservatives as opening the floodgates for unfettered aborting of viable human beings. The aftermath of Roe included the formation of coherent pro-choice and pro-life organizations, a struggle with definitions of when life is created, and the magnification of the state management of abortions to a topic handled by Congress, the Supreme Court, and the president.
Debates over the legality of abortion were ignited by a physicians’ movement to allow abortions during the 1940s and 1950s. Led by Drs. Alan and Manfred Guttmacher, a group of doctors lobbied state legislatures to allow abortions. Their activism in favor of abortion was a reaction to the unsanitary and dangerous illegal abortions that were being performed throughout the United States. Indeed, their lobbying was effective in getting states like New York and Hawaii to liberalize their abortion policies.
Another factor in the abortion debate was the growth of a well-organized feminist movement in the 1960s. The commercial viability of a contraceptive pill, funded by Sarah McCormick in 1960, and the subsequent focus of the Kennedy and Johnson administrations on family planning encouraged more assertive control by women over their own bodies. The creation of the National Organization for Women (NOW) in 1966 and the National Abortion Rights Action League (NARAL) in 1969 gave avenues of political strength to women throughout the United States.
A significant pre-Roe ruling by the Supreme Court was Griswold v. Connecticut, in which the Supreme Court ruled against Connecticut state law regulating birth control. Justice William Douglas used the right to privacy interpretation of the Third, Fourth, Fifth, and Ninth Amendments to justify ruling against state law. Justice Byron White opined that the state laws did not ensure the welfare of the public as part of a strict interpretation of the law. Griswold proved to be a strong legal predecessor to Roe v. Wade, as many of the same justifications were applied to the majority opinion.
The plaintiff in Roe v. Wade was Norma McCorvey, a pregnant woman who wanted to have an abortion in Dallas County, Texas, but was unable to due to Texas legislation banning the act. McCorvey was not pregnant by the time the Supreme Court heard and deliberated the case, which became a factor in the dissents of Byron White and William Rehnquist. The defending party in the case was Henry Wade, the Dallas County district attorney, joined by defense attorney John Tolle. Tolle’s defense for the Texas legislation was that the fetus was alive at conception and the state’s duty is to protect all people, especially those in utero. Writing an amicus brief on the plaintiff’s behalf were Planned Parenthood of America and NOW, representing the more liberal interpretation of the issue. In contrast, groups like Americans United for Life wrote amicus briefs on behalf of the state of Texas.
’S FAVOR The decision in Roe v. Wade came on January 22, 1973. The Supreme Court decided 7-2 in favor of the plaintiff and, in an opinion written by Justice Harry Blackmun, provided a vague caveat to abortion laws, a prescription for how state legislatures could deal with the issue of abortion, and no ruling on the viability of life. Black- mun stated that abortion was not clearly a right beyond reproach but felt that the greater harm to due process rights inherent in the Fourteenth Amendment did not justify keeping abortion illegal.
The opinion also provided states with limits as to how they could legislate abortion. In the first trimester, states could not prevent abortions. States would be allowed to regulate or limit abortions in the second trimester and could prohibit abortions in the third trimester.
Several justices, while agreeing with Blackmun’s general assessment, wrote concurring opinions. Justice William Douglas, a proponent of privacy in Griswold, used the same reasoning for his decision in Roe. Justice Potter Stewart felt that the time was right for the freedom of choice. Justice Warren Burger concurred with Blackmun’s interpretation of the due process clause of the Fourteenth Amendment and leaned toward Douglas’s interpretation in Griswold of a multifaceted constitutional basis for privacy rights.
In dissent were Justices Byron White and William Rehnquist. Justice White dissented for purely constitutional reasons, stating that overturning Texas laws against abortion was out of the jurisdiction of the Supreme Court. Rehnquist held a firm, conservative line on abortion. In the first place, he wrote, the plaintiff was not pregnant during the case and therefore her case was inappropriate. Rehnquist felt that even if McCorvey were pregnant during the case, her right to privacy was not violated by rejection of an abortion. Finally, Rehnquist felt that the Court ruling in favor of legal abortion was too sweeping of an act for a judicial body.
While Roe legalized abortion throughout the United States, the pro-life movement that protested this decision became a prevalent cultural force in America in the decades that followed. As women’s groups and prochoice groups grew around the beginning of the 1970s, pro-life groups organized to lobby for maximum legal restrictions and to restrict access to clinics performing abortions. In the immediate aftermath of Roe, the American Right to Life Committee was established as an organizing body against abortion. The Friends of Life, established by Joseph Scheidler, established branches around the country to protest abortion clinics. The more extreme pro-life groups turned to violence to prove their point, with the first abortion clinic bombing taking place in 1982.
See also feminism, worldwide.