Roe v. Wade
-Chrissie

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In the United States prior to the early nineteenth century, abortion was not illegal; it was not legal either, it was rarely, if ever, considered in the law. If a pregnancy ended before the pregnant person felt movement, a status known as “quickening,” little thought was given to how or why. Movement was seen as the marker of personhood, therefore terminating prior to this was not condemned. Additionally, until relatively recent advances in medical technology there could be a fuzzy line between a late period and an early miscarriage. If this were aided by the use of herbs like pennyroyal and mugwart, few but those directly involved would know the difference.  It was only after the Second Great Awakening, an evangelical Christian movement of the early decades of the nineteenth century that people began to define a fetus as a human being in its own right. This led to state-level bans on abortion but did not, of course, stop the practice. These laws were difficult to enforce, if a doctor who provided the service said it was done to protect the person’s health, few could argue. What these laws did not do, what they can never do, is stop women from getting abortions; what they do accomplish is to make doctors wary of doing the procedure, thereby making it difficult to obtain in a safe medical environment.

Like many cases about constitutional rights that end up in front of the Supreme Court of the United States, Roe v. Wade represented a culmination of other cases that had worked their way through local and state courts. By the late 1960s, in only three states was abortion on demand legally available. In most other states it was illegal, with exceptions made for the health or life of the pregnant person. Some states included mental health in this definition, a classification that was left intentionally vague. There was no federal level law or judicial precedent.

In 1970, Texas attorneys Sarah Weddington and Linda Coffee filed suit on behalf of a pseudonymous woman, Jane Roe, against Dallas County, represented by District Attorney Henry Wade. The case was heard by a three-judge panel on the US Court of Appeals for the Fifth Circuit, who ruled unanimously that the Texas ban on abortion violated a person’s right to privacy under the Ninth Amendment. They also cited the decision made in Griswold v. Connecticut five years earlier, which stated that married couples have the right to obtain and use birth control under the same right to privacy. The decision made its way from there to the Supreme Court. Oral arguments were heard in December 1970. Before a decision could be presented, however, one of the justices died and another retired. The remaining justices decided the case needed to be reheard after the justices replacing them came to the bench. This delayed the decision until early in 1973. In the interim, the Court’s decision in Eisenstadt v. Baird had been announced. This decision extended the right to privacy on the issue of birth control established in Griswold to unmarried persons. People in favor of choice saw this ruling as in their favor.

Coffee and Weddington returned to the Supreme Court to present their case in October 1972. The decision was announced on 22 January 1973: 7 to 2 in favor of Roe, stating that the US Constitution granted women the right to choose whether to terminate a pregnancy without “excessive government restriction.” The majority opinion, written by Justice Harry Blackman, began with historical context on abortion and laws around it reaching back to the Roman Republic. More pertinent, it cited previous SCOTUS decisions regarding privacy rights in parenting and the Griswold decision. From these bases, the court determined that “the right to privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action…[or] in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.” The Justices did not, however, allow this as an absolute right. They held that states had some jurisdiction to limit access, and it is for this reason that the trimester system was put into place. On the basis that there was virtually no chance of harm to the pregnant person in terminating a pregnancy in the first three months, abortion was to remain unrestricted in this first trimester. In the next three months, the justices cited the increased potential for an abortion to do harm to the pregnant person as allowing for some restrictions; this did, though, guarantee that a risk to their health from continuing a pregnancy allowed for its termination. And, because a fetus could be viable outside the uterus as of the third trimester, the court argued that the state could restrict abortion except in cases in which the health or life of the pregnant person was endangered.

The response to the ruling was in keeping with the arguments presented on both sides: those generally in favor of choice were happy, those in opposition disappointed. Those opposed to abortion have redoubled their efforts in the late twentieth and early twenty-first centuries, centering their arguments on the question of when a human life began and when that life achieved “personhood.” These arguments were not new; they had been handled in the Roe decision but set aside, stating if “those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary…is not in a position to speculate as to the answer.”