In Roe v. Wade, Norma McCorvey, a single, pregnant woman in Texas sought an abortion.
At the time, Texas law prohibited abortions unless performed or obtained to save the life
of the mother. To protect her privacy, McCorvey filed the suit in federal court under the
name “Jane Roe.” The defendant was Henry Wade, the district attorney in the Texas county
where McCorvey sought the abortion. Wade was responsible for enforcing the Texas statute.
Roe argued that the abortion ban was unconstitutional; she asked the court to issue an order that
would stop Texas from enforcing the law. The district court found the Texas restriction
on abortion unconstitutional on the grounds that the statute was too vague and overly
broad, and, as such, ran afoul of Roe’s Fourteenth Amendment right to privacy and
impinged on the rights reserved to the people under the Ninth Amendment. However, the court
did not issue an injunction to bar Texas from enforcing its ban, so practically speaking,
Roe’s options in Texas didn’t really change. Arguing that the district court’s lack of
injunctive relief was insufficient, Roe appealed the case directly to the United States Supreme
Court. Writing for a highly divided Court, Justice
Blackmun held in Roe's favor. Blackmun found that the implied “zone of privacy” first outlined
by the Court in Griswold v. Connecticut was broad enough to include a woman’s right
to choose to terminate her pregnancy. However fundamental this right, though, the Court
also found that the state had important interests, at some point in the pregnancy, in protecting the life and health of the mother
and safeguarding the potential life of the fetus.
Nevertheless, any legislative limits imposed on women’s fundamental right
of privacy had to be narrowly tailored to further a compelling state interest. Blackmun’s
attempt to reconcile these interests resulted in a term-based approach. During the first
trimester of pregnancy, when health risks associated with abortion are less severe than
those associated with childbirth and the fetus is in the early stages of development, a woman’s
privacy interest is paramount and outweighs any competing state interests. After the first
trimester, the state’s interests in protecting women’s health from potential dangers associated
with later-performed abortions and the potential personhood of the fetus grow and can justify
increased regulation. By viability, meaning the time when the fetus is able to live outside
the mother’s body, usually somewhere between 24 and 28 weeks, the state’s interest in
the potential human life is compelling enough to support an outright abortion ban. The Court
struck down the Texas law, because it impermissibly restricted a woman’s right to choose in
the first trimester of pregnancy. Three justices filed concurring opinions,
and two dissented. Chief Justice Burger concurred that the Texas
abortion statute impermissibly restricts abortions for the purpose of preserving the health of
pregnant women, but he was “troubled” by the Court’s judicial notice of scientific
and medical data. Justice Douglas found Griswold to be controlling
in this case, and specifically noted that a woman’s right to obtain an abortion is
included in the basic liberty interests of the Fourteenth Amendment protecting marriage,
family decisions, medical decisions, and bodily autonomy and may only be outweighed by a compelling
state interest. Douglas specifically noted that the Georgia statute was overbroad, because
it equated the value of prenatal life at all stages of pregnancy.
Justice Stewart agreed that a woman’s right to choose is constitutionally protected, but
found that justification in the Due Process Clause of the Fourteenth Amendment, not in
the implied right of privacy cited by his fellow justices.
Justice White dissented, asserting that the Court had, essentially, made up a new constitutional
protection for pregnant mothers, and the issue should be decided by voters, not the judiciary.
Justice Rehnquist’s dissent argued that a woman’s privacy rights were not implicated
in the case, and that the Court had further confused matters by imposing the compelling
state interest test of the Equal Protection Clause onto its Due Process Clause analysis.
Rehnquist said that the fact that a majority of states had some abortion restrictions suggested
abortion was not a fundamental right. The effect of this ruling was immediate and
far-reaching, expanding the right to privacy under the Fourteenth Amendment and altering
the legal landscape on the abortion issue across the country. Roe’s novel trimester
framework has been modified over time but continues to be cited when abortion restrictions
are challenged. As an epilogue to Roe’s personal case, McCorvey gave birth to a baby
girl, whom she put up for adoption, before the case proceeded to the Supreme Court; she
also became an outspoken advocate of the pro-life movement in her later life.
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