Roe v. Wade

The word privacy isn’t found in the Constitution; nevertheless, several amendments offer protections for certain types of privacy. For example, the 4th Amendment guarantees that people are free from unreasonable searches and seizures, and the 5th Amendment offers protection against self-incrimination. Over the years, the Court has broadened the concept of what constitutes a constitutionally protected right to privacy, such as the right to privacy in one’s personal relationships.

The landmark Supreme Court case of Roe v. Wade centered on whether the right to an abortion is a privacy interest that is constitutionally protected.

Roe v. Wade Summary

Roe v. Wade is a landmark decision that marked a new era in the discussion of women’s reproductive rights and the conversation about what is a constitutionally protected right to privacy.

In 1969, a pregnant and unmarried woman named Norma McCorvey sought an abortion in the state of Texas. She was denied because Texas had outlawed abortion except to save the life of the mother. The woman filed a lawsuit under the pseudonym “Jane Roe.” Many states had passed laws outlawing or regulating abortion since the early 1900s. Roe reached the Supreme Court at a time when freedom, morality, and women’s rights were at the forefront of the national conversation. The question before the Court was: Does denying a woman the right to an abortion violate the 14th Amendment’s due process clause?

Constitutional Issues

The two constitutional issues relevant to the case.

9th Amendment:

Roe’s attorney argued that just because the Constitution doesn’t explicitly state there is a right to privacy or abortion, doesn’t mean there isn’t one.

14th Amendment:

Relevant Precedent - Griswold v. Connecticut

In the 1965 case Griswold v. Connecticut, the Supreme Court ruled that the right to privacy was evident in the penumbras (shadows) of enumerated constitutional rights and protections. The Court held that privacy is a fundamental value and fundamental to other rights. The right of a couple to seek contraception is a private matter. Laws that forbid birth control are unconstitutional because they violate privacy.

Fig. 1 - Norma McCorvey (Jane Roe) and her attorney, Gloria Allred in 1989 on the steps of the Supreme Court, Wikimedia Commons

Roe v. Wade Facts

When Jane Roe and her attorney filed a lawsuit against Henry Wade, the district attorney of Dallas County, Texas, they claimed that Texas’s law that criminalized abortion was a constitutional violation. A federal district court agreed with Roe that the Texas law violated both the 9th Amendment’s provision that rights are reserved to the people and the 14th Amendment’s due process clause. The decision was appealed to the Supreme Court.

Arguments for Roe:

• A right to privacy is implied in many places in the Constitution. The 1st, 4th, 5th, 9th, and 14th Amendments all implicitly guarantee elements of privacy.

• The precedent in Griswold was that certain personal matters are private decisions protected by the Constitution.

• Unwanted pregnancies negatively affect many women’s lives. Women lose their jobs, finances, and physical and mental health suffers from being forced to carry a pregnancy.

• If a woman in Texas wants an abortion, she must travel to another state or undergo an illegal procedure. Traveling is expensive, thus putting the burden of carrying unwanted pregnancies on poor women. Illegal abortions are unsafe.

• The current law is too vague.

• An unborn fetus does not have the same rights as a woman.

• Abortions were more common in the 19th century. The authors of the Constitution did not include a fetus in their definition of a person. No precedent exists that rules a fetus as a person with equal rights to a woman.

Arguments for Wade:

• The right to abortion doesn’t exist in the Constitution.

• A fetus is a person with constitutional rights. The right to the life of a fetus is more important than the right to privacy of a woman.

• Texas’s abortion restrictions are reasonable.

• Abortion is not the same as birth control, so the Court cannot look to Griswold as precedent.

• State legislatures should set their own abortion regulations.

Roe v. Wade Decision

The Court ruled 7-2 for Roe and held that denying women a right to abortion was violating her 14th Amendment right to due process under a broadly defined “liberty.” The decision made it illegal for a state to outlaw abortion prior to approximately the end of the first trimester (first three months of pregnancy).

The Court held that the right of a woman to have an abortion must be weighed against two legitimate interests of the state: the need to protect prenatal life and the health of a woman. As pregnancy progresses, the interests grow larger for the state. Under the court's framework, after approximately the end of the first trimester, states could regulate abortion in ways that are related to the health of the mother. In the third trimester, states had the power to ban abortion except to save the life of the mother.

Roe v. Wade Majority Opinion

Fig. 2 - Justice Blackmun, Wikimedia Commons

Justice Blackmun wrote the majority opinion and was joined in the majority by Chief Justice Burger, and Justices Stewart, Brennan, Marshall, Powell, and Douglas. Justices White and Rehnquist dissented.

The majority held that the 14th Amendment protects a woman’s right to privacy, including the right to an abortion. This is because the liberty that the 14th Amendment protects includes privacy. They looked to history and found that abortion laws were recent and that restrictive abortion laws are not of a historical origin. They also interpreted the 9th Amendment’s reservation of the people’s rights to include a woman’s right to end a pregnancy.

The right to an abortion was not absolute, the Court wrote. The state may more heavily regulate or prohibit abortions after the first trimester.

Those in the dissent found nothing in the Constitution to support a woman’s right to abortion. They held that the right to life of a fetus had utmost importance, weighed against a woman’s right to privacy. They also found the right to abortion to be incompatible with the umbrella term “privacy.”

From Roe v. Wade to Dobbs v. Jackson Women’s Health Organization

The abortion debate has never quieted. Abortion has repeatedly come before the Court in various cases. It continues to come up as an issue during election time and in judicial confirmation hearings. One important case that appeared before the Court was Planned Parenthood v. Casey (1992) in which the Court held that states could mandate waiting periods, require potential abortion patients to receive information about alternate choices, and require parental consent in cases where minors were seeking abortions. These regulations were to be examined on a case by case basis for whether they placed an undue burden on a mother.

In 1976 Congress passed the Hyde Amendment, which made it illegal for federal funding to go toward abortion procedures.

Roe v. Wade Decision Overturned

On June 24, 2022, in a historic decision, the Supreme Court overturned the precedent of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. In a 6-3 decision, the majority conservative court ruled that Roe v. Wade was wrongly decided and, therefore, set a bad precedent. Justice Alito wrote the majority opinion and expressed the opinion of the Court that the Constitution does not protect the right to abortion.

The three dissenting justices were Justices Breyer, Kagan, and Sotomayor. They held that the Court’s majority decision was wrong and that overturning a precedent that has been in place for 50 years would be a setback for women’s health and women’s rights. They also expressed concern that the decision to overturn Roe would signal the politicization of the Court and be damaging to the Court’s legitimacy as a non-political entity.

Dobbs. v. Jackson overturned Roe v. Wade and as a result, states now have the right to regulate abortion.