Roe v. Wade

Explanation and Analysis of the Document

Harry Blackmun: Majority Opinion

Three appellants came before the Court challenging Texas abortion statutes. The first was Jane Roe (Norma McCorvey), a single woman who was pregnant and had been unable to procure a legal abortion at the time she filed action against the Dallas County district attorney Henry Wade in 1970. The second appellant was the licensed physician James Hubert Hallford, who had faced two state prosecutions for performing abortions and argued that the Texas statute was unconstitutionally vague and violated his own and his patients' rights. The third was the married couple John and Mary Doe (David and Marsha King). Mary Doe suffered from a medical disorder that left her unable to use birth control pills and made pregnancy a medical danger; the couple sued on the grounds of potential injury resulting from possible contraceptive failure and pregnancy.

The majority ruling, authored by Blackmun and joined by Justices Burger, Brennan, Douglas, Marshall, Powell, and Stewart, holds that only Roe had the standing to sue. The ruling establishes that the end of Roe's pregnancy—she gave birth and allowed the child to be adopted—did not render the case moot; that Hallford's arguments could be asserted in his defense in state courts and therefore did not belong in federal court; and that the Does' complaint was too “speculative … to present an actual case or controversy.” Then—the part that those in the courtroom in January 1973 were waiting to hear—the ruling declares that abortion is constitutionally protected by the right to privacy implicit in the Fourteenth Amendment. In her cultural and legal history of the case, Marian Faux states, “A palpable sigh of relief went through the courtroom. That was the crux of the opinion—the victory for pro-choice forces, as it were” (p. 308).

The Court does apply some qualifications to the right to abortion, enumerating them as based on three stages of pregnancy. During the first trimester, the abortion decision is left to the woman and her attending physician; between the end of that trimester and the point where the fetus becomes viable, states may regulate abortion “in ways that are reasonably related to maternal health”; and after fetal viability, states may prohibit abortion except when the procedure is necessary to protect the life or health of the mother.

In the initial paragraphs of his opinion, Blackmun acknowledges the controversial nature of the abortion issue and the need to “resolve the issue by constitutional measurement, free of emotion and of predilection.” The first four parts following the brief introduction deal with the issues of jurisdiction, standing, and mootness, dismissing the claims of Hallford and the Does. Blackmun rejects the appellee's argument that the case was moot because Roe was no longer pregnant; because of the 266-day length of the normal human gestation period, virtually no pregnancy-related appellate review could be conducted before the natural end of the pregnancy. Blackmun declares, “Our law should not be that rigid.”

After a brief paragraph laying out the appellant's argument, Blackmun embarks in part VI on a lengthy history of abortion laws. He begins with the Persian Empire and the classical Greek and Roman eras, when abortion was commonly practiced and not barred by ancient religion. He reviews the history of the Hippocratic oath, an ethical guide to the medical profession that proscribes abortion. Blackmun concludes, based on his research, that the oath's rigidity represented a small minority of Greek opinion. He then examines the treatment of abortion across the centuries under English law, common law, and historic American law. He notes that most states did not have laws proscribing abortion until the Civil War era. Thus, until the mid-nineteenth century, he writes, “a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.” He then summarizes the stances of the American Medical Association, the American Public Health Association, and the American Bar Association, all of which accepted abortion to varying degrees.

In part VII, Blackmun raises three legislative purposes for the enactment of criminal abortion laws: the discouragement of illicit sexual conduct for moral reasons; the protection of maternal health, in light of the medical hazards of abortion procedures that preceded the advent of sterilization; and the protection of prenatal life. Blackmun also introduces the concept of “potential life,” which had not been raised by any parties in the case; the appellees argued that life begins at conception, and the appellants disputed that claim. The historian Faux states that the term “appeared to be the Court's own creation” (p. 309) and raised the question of whether fetuses might have some rights of personhood.

Blackmun begins addressing the constitutional contentions of the case in part VIII. He traces the line of Supreme Court decisions establishing a right of personal privacy, notably including Griswold v. Connecticut, and concludes that the constitutional right of privacy found in the Fourteenth Amendment “is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” However, he continues, the right is not unqualified and must be balanced against state interests in its regulation.

In part IX, Blackmun turns his attention to the definition of “person” under the law. Despite the questions raised by his earlier use of the term “potential life,” Blackmun states that his duty for the case does not entail answering the question of when human life begins. He concludes that nowhere in the Constitution is the term “person” intended to apply before birth.

Part X delineates the framework for how states will be permitted to regulate abortion, based on the stage of pregnancy involved. As Faux notes, this idea as well had not been raised in either the briefs or the oral arguments and appears to be Blackmun's own creation. He chose to permit abortion during the first trimester of pregnancy based on medical evidence that mortality from abortion during that stage is lower than mortality from normal childbirth. Therefore, he writes, the state cannot claim maternal health as a compelling interest. He establishes that the state's interest in regulation becomes compelling at the point of viability of the fetus outside the mother's womb and that states may proscribe abortion during that period “except when it is necessary to preserve the life or health of the mother.”

In the final two parts, Blackmun summarizes and repeats his key findings about the stages of pregnancy. He notes that states may prohibit anyone who is not a physician from performing an abortion. Justice Blackmun instructs that the opinion in the companion case Doe v. Bolton should be read together with Roe and concludes that the Texas statute must fall.

Additional Commentary by Renee C. Redman, Connecticut and Quinnipiac Universities Schools of Law

Blackmun’s majority opinion in Roe v. Wade is his most well-known opinion. The case was a challenge to a Texas statute that made it a crime to have an abortion unless the abortion was performed to save the life of the pregnant woman. As noted in Blackmun’s opinion, the majority of the states at the time had similar statutes on their books.

Roe was brought by Norma McCorvey, using the pseudonym Jane Roe, a young unmarried woman who had become pregnant as the result of a rape and who had been unable to obtain an abortion in Texas; Dr. James Hubert Hallford, a licensed physician who had been arrested for allegedly violating the Texas statute; and John and Mary Doe, a married couple also using a pseudonym. By the time the Court heard the first oral arguments in the case in December 1971, the issue of abortion was controversial and divisive. Blackmun was not initially committed to finding the Texas statute unconstitutional but knew that the opinion would be scrutinized. He reportedly spent five months drafting the opinion, including two weeks during the summer of 1971 spent in the Mayo Clinic library in Rochester, Minnesota, researching the history of abortion. In his draft of the opinion circulated to the other justices in May 1972, he avoided the issue of whether privacy rights should be extended by invalidating the statute as unconstitutionally vague. However, several justices urged that the Court rule on the “core” issue of whether all abortion laws should be struck down.

The second oral arguments were held in October 1972, and the opinion was announced on January 22, 1973. The Court struck down the Texas statute by a vote of seven to two, with Blackmun drafting the opinion. Blackmun begins by acknowledging that the issue is emotional and controversial while maintaining that the court’s task is to determine the constitutionality of the statute without emotion. To that end, the opinion provides a lengthy history of medical and nonmedical practices and attitudes toward abortion in the United States and internationally.

After finding that only Jane Roe had standing to bring the complaint in question, the opinion examines the history of abortion and the reasons for enactment of criminal abortion laws. The survey of the history of abortion addresses attitudes and practices in the ancient world, in common law, in recent English law, and in American law. It concludes that women in the United States had less of a right to abortion at the present than women had when the Constitution was adopted and throughout most of the nineteenth century.

The opinion then traces the history of the American Medical Association and its positions on abortion, concluding with descriptions of 1970 preambles and resolutions adopted by its House of Delegates. The judgments and moral principles of physicians that are emphasized in the preambles and resolutions are contrasted with the idea that women should be provided with abortions whenever they want. The opinion also notes that the American Public Health Association had adopted standards for abortion services and that the American Bar Association’s House of Delegates had adopted a Uniform Abortion Act, setting forth standards for performing abortions.

The opinion proceeds to set forth three historical reasons that have been used to support the criminalization of abortion. The first is that such laws are meant to discourage sex outside of marriage. The second reason is the fact that when most of these criminal statutes were enacted in the nineteenth century abortions were dangerous for women and the mortality rate was high. The third reason is that the government has an interest “in protecting prenatal life.”

The opinion finds that, although the drafters of the Constitution did not include an explicit right to privacy, the Constitution protects rights to personal privacy and rights to privacy within certain areas or zones. It notes that the privacy right of a woman to determine whether to terminate her pregnancy exists whether it is in the Ninth Amendment, as found by the lower court, or in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as the Court finds it is. The opinion acknowledges that maternity may force a woman into poverty and a hopeless future and may cause psychological and physical harm to the woman and her family.

The opinion finds that the right to an abortion is not absolute and that the government has countervailing interests in protecting “health, medical standards, and prenatal life.” It declines to decide when life begins, noting that experts in medicine, philosophy, and theology are divided on the issue. However, the opinion then provides a short historical survey indicating that there has always been strong support for the stance that life does not begin until actual birth. It concludes that the unborn have never been historically recognized in law as persons and are not included in the term person as used in the Fourteenth Amendment.

The opinion concludes that the state has an important and legitimate interest in preserving and protecting the health of pregnant women as well as a separate and distinct, albeit important and legitimate, interest in protecting the fetus. Each interest becomes compelling at a particular point during pregnancy. The state’s interest in protecting the health of the woman becomes compelling “at approximately the end of the first trimester”; its interest in potential life becomes compelling at viability, at which point the fetus has “the capability of meaningful life outside the mother’s womb.”

Thus, the opinion sets forth the now infamous trimester framework, whereby during the first trimester, the decision whether to perform an abortion is reached solely through the medically informed judgment of the woman’s physician. For abortions during the second trimester, the state may “regulate the abortion procedure in ways that are reasonably related to maternal health.” Only during the third trimester may the state “regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Over the years, legal scholars have criticized the Roe opinion as weak and judicial lawmaking. One of the first and most critical reactions was a law review article written by John Hart Ely, a Yale Law School professor. Some legal scholars contend that the core of Blackmun’s decision is the right of physicians to make medical decisions free from state regulation and that he only later developed a commitment to the rights of women. Others insist that Roe is indeed grounded in women’s rights.

The decision was immediately controversial outside the legal community as well. Blackmun personally became the target and focus of antiabortion activists. He received boxes of mail on the issue throughout his life and was continually picketed. In 1985, after a bullet came through the window of his apartment, the Supreme Court police insisted that he no longer drive himself to work. Although the shot was later deemed random, Blackmun was driven to the Court for the remainder of his career.

Over the years, abortion cases meant to whittle away, if not overturn, Roe regularly appeared on the Court’s docket. Blackmun often dissented and defended that opinion. In 1989, in Webster v. Reproductive Health Services, the Court found most of a highly restrictive Missouri law constitutional. Justice Sandra Day O’Connor argued that the law did not conflict with Roe. Justice Antonin Scalia urged that Webster be used to overturn Roe. In his concurrence/dissent, Blackmun cautions that although the fundamental constitutional right of women to abortion as recognized in Roe survives, it is not secure. He warns:

“Today’s decision involves the most politically divisive domestic legal issue of our time. By refusing to explain or to justify its proposed revolutionary revision in the law of abortion, and by refusing to abide not only by our precedents, but also by our canons for reconsidering those precedents, the plurality invites charges of cowardice and illegitimacy to our door. I cannot say that these would be undeserved. For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.” (Webster v. Reproductive Health Services, 492 U.S. 490, 559–60; 1989)

In 1992 in Planned Parenthood v. Casey, Roe again survived, but only barely. In a decision in which five separate opinions were filed, Roe’s trimester framework was deemed to be unessential to the holding of Roe and was replaced with an “undue burden” test: “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.” Blackmun filed a separate opinion concurring in part and dissenting in part, with a warning that at eighty-three years old, he would not remain on the Court forever. He notes that the distance between the approach in Roe and the “undue burden” test set forth in Casey is one vote—his and then that of his successor will be the deciding vote in the future. He expresses his regret that the confirmation process of his successor “may be exactly where the choice between the two worlds will be made” (Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 943; 1992).

William Rehnquist: Dissent

Roe v. Wade has arguably been one of the Supreme Court's most controversial decisions. In its seven-to-two majority opinion, the Court struck down a Texas law—and by implication similar laws in other states—restricting the right of a woman to have an abortion. Rehnquist and Justice Byron White both dissented from the majority opinion.

The case was that of a Texas woman, Norma McCorvey (“Jane Roe”), who wanted to end a pregnancy she attributed to rape (a claim she later recanted). Under Texas law, however, abortion was illegal. On McCorvey's behalf, two attorneys filed suit in the U.S. District Court in Texas, naming Roe as plaintiff and Dallas County District Attorney Henry Wade, representing the state of Texas, as defendant. The suit asked the district court to invalidate the Texas statute making abortion illegal so that Roe could have an abortion. The district court ruled in Roe's favor but turned down her request for an injunction blocking enforcement of the state's antiabortion laws. Because neither side obtained the full ruling each wished, both filed appeals. The case reached the Supreme Court, where it was argued on December 13, 1971. However, before the Court issued its decision, Rehnquist and Lewis Powell, Jr., joined the Court, so the case was reargued on October 11, 1972. The Court issued its decision on January 22, 1973.

The Court's majority based its decision principally on a “right to privacy” that they argued was implicit in the due process clause of the Constitution's Fourteenth Amendment. This amendment states that no state “shall deprive any person of life, liberty, or property, without due process of law.” They argued that abortion was a “fundamental right” guaranteed by the Constitution and that therefore the state could restrict it only if it had a compelling interest in doing so (the so-called strict scrutiny standard for examining whether a law is constitutional). The majority concluded that the state had no compelling interest, and therefore laws restricting the right of abortion were unconstitutional.

Rehnquist (and White) vigorously dissented from this view. In the two paragraphs of section I of his dissent, Rehnquist first argues that, in effect, the Court should not have even heard the case. The Supreme Court does not hear theoretical cases. There has to be an actual plaintiff and an actual set of facts—a case—on which the Court can base its decision. Rehnquist notes that the record failed to show that “Jane Roe” was, in fact, such a plaintiff. Rehnquist goes on, however, to state that even if Roe did have a case properly before the Court, he disagreed with the Court's conclusion that the Constitution prohibits the states from regulating abortions in the first trimester of pregnancy.

When the Court reviews a law, or statute, for constitutionality, it balances the interest that the state has in regulating certain behavior against the interest a citizen has in pursuing the behavior. This attempt to find balance is made because every law takes away, even if only slightly, a citizen's right to do something and infringes on freedom to some degree. Thus, the Court is always weighing the interests of the state to maintain order, health, safety, and so on along with the interests of the individual to be free from unnecessary and overly intrusive regulation. The Court must determine whether a statute takes away too much freedom for the sake of public interests. In order to review whether a statute has gone too far in restricting individual behavior, the Court first identifies how important the citizen's interest in the regulated behavior is and then determines how important the state's interest in regulating the behavior is. Only then can a decision be made.

Rehnquist calls the act of having an abortion a “transaction resulting in an operation.” Thus he takes the position that a citizen's interest in engaging in this behavior is not as important in the equation as some other behaviors, such as saving one's own life. He notes that if the statute prevented women from having abortions even to save their own lives, it would be unconstitutional because the regulation would be outweighed by the citizen's interest in life, a fundamental right protected by the Constitution.

By contrast, the majority opinion identifies the act of having an abortion as part of a fundamental right to privacy that arises out of rights specifically protected by the Fourteenth Amendment of the Constitution. When a right is defined as fundamental, it is the most important kind of interest a citizen can have and is difficult for a state to overcome. But Justice Rehnquist calls the citizen's interest at issue not a general right to privacy but, more narrowly, the right to an abortion, which is not fundamental because it has been regulated throughout history. Indeed, Rehnquist notes, abortion was regulated before the Fourteenth Amendment was even added to the Constitution, and he states this historical fact as support for the view that the drafters of the Fourteenth Amendment must not have thought abortion was a fundamental right. Therefore, he concludes, they did not intend to take away from the states the power to regulate it.

Rehnquist also disagrees with the Court's decision to parse a pregnancy into parts, prohibiting states from regulating first-trimester abortions while permitting them to regulate abortions after the end of the first trimester. This, he believes, was not within the power of the judiciary but is instead a matter appropriate for the legislature because it goes beyond simply interpreting the Constitution, which is the Court's role. Finally, he disagrees with the Court's decision to strike down the entire Texas statute, as parts of it regulated abortions after the first trimester, which the Court found were permissible regulations. Therefore, Rehnquist states, the Court should have struck down only the impermissible portions of the statute.

Although Rehnquist was not on the prevailing side of the issue raised by Roe v. Wade, his fundamental argument—that the Constitution, and specifically the Fourteenth Amendment, is silent on any presumed “right” to privacy—continues to be debated in other contexts, such as gay rights, and abortion opponents continue to make a similar argument.