Roe v. Wade and the Abortion Debate

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Roe v. Wade and the Abortion Debate

Legal decision

By: Henry A. Blackmun

Date: January 22, 1973

Source: Roe v. Wade, 410 U.S. 113 (1973).

About the Author: Harry A. Blackmun is best known as the author of the U.S. Supreme Court's Roe v. Wade decision. Born on November 12, 1908, in Nashville, Illinois, Blackmun grew up in St. Paul, Minnesota. Upon graduation from Harvard Law School in 1932, he joined a prestigious Minneapolis law firm. He became general counsel for the Mayo Clinic in 1950. This job allowed him to apply his legal skills to his lifelong interest in medicine. Blackmun took his seat on the Supreme Court on June 9, 1970. A modest man who publicly stated that he agonized over decisions, he took a year to write the Roe v. Wade opinion. Blackmun based his decision on research that he conducted at the Mayo Clinic library during the Court's summer recess. He concluded that abortion, at least in early pregnancy, was widely tolerated both under English common law and at the time of the adoption of the U.S. Constitution, with legal prohibitions becoming widespread only in the late nineteenth century.

INTRODUCTION

The Roe v. Wade decision legalized abortion in the United States. The case began when a young woman, who subsequently used the pseudonym Jane Roe, was prohibited by Texas state law from obtaining an abortion to end an unwanted pregnancy. Henry Wade, a Dallas County district attorney, bore the responsibility for enforcing the law banning abortion and, as a result, became the respondent in the case.

The Texas state law was typical of antiabortion legislation. Passed in 1854, it was part of a nineteenth-century push to protect women from the dangerous substances and techniques associated with the termination of a pregnancy. An estimated 20 to 25 percent of all pregnancies ended in abortion by midcentury. These abortions reduced the birthrate among white Protestant women in relation to the birthrates among poor, immigrant, and African American women. To protect women and to promote the birth of what were thought to be more desirable children, legislators banned abortion.

The legislation did not stop abortion. As time progressed, young white women beginning to enter the workforce, married women concerned about family size, and women of all sorts who could not afford a child continued to obtain illegal (so-called back-alley) abortions. By the 1950s, medical doctors began to form hospital abortion boards to review cases in which women sought permission to end pregnancies on medical grounds. Soon, women began to seek abortions on the psychiatric grounds that they were suicidal or unsuitable to be a mother, and physicians began to perform abortions because they believed that women should have access to the service. By the mid-1960s, national feminist organizations were focusing on abortion as a key to women's liberation. In the late 1960s and early 1970s, several state legislatures liberalized their abortion laws.

The Roe v. Wade decision was based on constitutional principles: 1) Women have a fundamental, constitutional right to reproductive control and privacy; 2) The government must remain neutral regarding a woman's decision to have or decline an abortion; 3) In the period before "viability" (the point at which a fetus can survive outside the womb), the government may restrict abortion only in the interests of protecting the woman's health or life. The Roe v. Wade decision also established a trimester concept of pregnancy, in which a woman has an unimpeded right to abortion only in the first three months of pregnancy. All of these principles have since come under heavy attack by opponents of abortion.

PRIMARY SOURCE

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici [friends] argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

SIGNIFICANCE

The Supreme Court legalized abortion in a seven-to-two vote. The majority decision, as expressed by Blackmun, referred repeatedly to abortion as a "choice." The dissenting justices, Byron White and William Rehnquist, defined the choice to have an abortion as an "extermination" based on a woman's "convenience," "whim," change of mood, "dislike of children," or "no reason at all." The negative characterization of some women who chose abortions reflected and stimulated the rise of the organized abortion movement immediately following the Supreme Court decision.

In the years since legalization, millions of American women have obtained safe abortions. These years also have been marked by a range of efforts by opposition groups to block the availability of abortions. These efforts have had some success, with the number of abortions declining to about 350 abortions for every 1,000 live births. Using demonstrations, clinic blockades, harassment of abortion-seeking women, judicial appointments, legal challenges, and violence such as bombings of clinics and the murder of abortion providers, various segments of the antiabortion movement have expressed their anger with the Roe v. Wade decision. Congress and state legislatures have partially regulated access to abortions with parental notification laws, waiting periods, bans on particular types of procedures, and limits on abortion coverage in health plans. A changing Supreme Court has led some proponents of a woman's choice for abortion to consider that Roe v. Wade could be overturned.

Given the history of abortion, if Roe v. Wade is overturned, it is very unlikely that abortion will disappear in the United States. While outlawing abortion will block some women from obtaining one, other women will likely return to the strategies of pre-Roe days to end unwanted pregnancies. Since Roe v. Wade made it possible for women to obtain abortions in sanitary environments with care provided by licensed medical providers, medical complications and deaths were reduced. Before legalization, almost one million illegal abortions were performed and about 1,000 women died each year from substandard procedures and unhygienic conditions. Women of color were most at risk, constituting 75 percent of those who died in 1969 alone, because poverty made it difficult to afford quality care.

FURTHER RESOURCES

Books

Hull, N. E. H., and Peter Charles Hoffer. Roe v. Wade: The Abortion Rights Controversy in American History. Lawrence: University Press of Kansas, 2001.

Joffe, Carole. Doctors of Conscience: The Struggle to Provide Abortion Before and After Roe v. Wade. Boston: Beacon, 1995.

Solinger, Rickie, ed. Abortion Wars: A Half Century of Struggle, 1950–2000. Berkeley: University of California Press, 1998.