Plaintiff:Norma McCorvey, using "Jane Roe" as an
alias, and representing all pregnant women in a
Defendant:Dallas County, Texas, district attorney Henry B. Wade
Plaintiff's Claim: That the Texas abortion law violated the constitutional rights of McCorvey and other women
Chief Lawyers for Defendant: John Tolle, Jay Floyd, and Robert Flowers
Chief Lawyers for Plaintiff: Sarah Weddington and Linda Coffee
Justices: Harry Blackmun, William J. Brennan, Chief Justice Warren Burger, William O. Douglas, Thurgood Marshall, Lewis Powell, Potter Stewart (majority); William Rehnquist and Byron White (dissent)
Place: Washington, D.C.
Date of Decision: January 22, 1973
Decision: Invalidated all state laws restricting women's access to abortions during the first trimester (three months) of pregnancy and upheld only those second-trimester (three to six month) restrictions that protected the health of pregnant women
Significance: This landmark decision made abortion legal in the United States.
Norma McCorvey became pregnant in the summer of 1969. The 21-year-old woman's marriage had failed, and her mother and stepfather were raising her five-year-old daughter. McCorvey did not want to continue her pregnancy. Since Texas law prohibited abortion except to save a woman's life, McCorvey began to look for someone willing to perform one illegally.
Although she was not successful in that search, she did meet Sarah Weddington and Linda Coffee, two attorneys interested in changing the abortion laws. McCorvey agreed to become plaintiff "Jane Roe" in a test case. (Years after the trial, McCorvey came forward under her own name.)
A Constitutional Issue
They faced two difficulties. First, Texas had passed its abortion law in 1859. Like similar laws in other states, it did not target the women who needed abortions, but those who performed them. Therefore, McCorvey might not have "standing to sue." Second, if McCorvey gave birth, or passed the point in her pregnancy where an abortion could be safely performed, the case could become moot (irrelevant). Nonetheless, Coffee wrote a three-page complaint naming Dallas County district attorney Henry B. Wade as the defendant; she filed it at the Dallas federal courthouse on March 3, 1970. Coffee asked the court to declare the law unconstitutional (declaratory relief) and order Texas to stop enforcing it (injunctive relief).
The Right to Privacy
The Ninth Amendment states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Before its decision in the 1965 case Griswold v. Connecticut (see page 162 of Women's Rights on Trial ), the Supreme Court had interpreted this clause as reserving for the states any rights not specifically granted to the federal government by the Constitution. In the majority opinion for Griswold , Justice William O. Douglas had articulated another, more literal, view of the Ninth Amendment. He said that rights not explicitly granted to the government by the Constitution were retained by the people , and this included a right to privacy. On this basis, the Griswold decision invalidated all state laws banning contraceptive use among married couples. Coffee and Weddington would argue that the right to privacy also protected a woman's right to choose whether to bear a child.
The chief judge of the Fifth Circuit federal court, John R. Brown, appointed a panel of three judges to hear Roe v. Wade : Irving S. Goldberg, William McLaughlin Taylor, and Sarah Tigham Hughes (formerly Coffee's clerk).
Assistant District Attorney John Tolle, assigned to defend District Attorney Wade's right to enforce the Texas abortion law, submitted his first response to the case on March 23. It was a two-page claim that "Jane Roe" lacked standing to sue, since "the statutes complained of operate only against persons who performed an abortion, not against pregnant women upon whom abortions are performed." A formal hearing before the three-judge panel nonetheless took place on Friday, May 22, 1970, at 2 p.m.
Tolle also filed a request to speak with "Jane Roe." McCorvey did not come forward, but on the day before the scheduled hearing, her attorneys filed an anonymous affidavit for her. In it, she stated that she wished to remain anonymous since "the notoriety occasioned by the lawsuit would make it impossible for me to secure any employment in the near future and would severely limit my advancement in any employment which I might secure at some later date." She continued, "I consider the decision of whether to bear a child a highly personal one and feel that the notoriety occasioned by the lawsuit would result in a gross invasion of my personal privacy." McCorvey wrote that she had "wanted to terminate my pregnancy because of the economic hardship which my pregnancy entailed and because of the social stigma attached to the bearing of illegitimate children in our society." Since she could not afford to travel to another state for a legal abortion, she said: "I fear that my very life would be endangered if I submitted to an abortion which I could afford."
Here Come the Judges
By May 22, 1970, Weddington and Coffee had amended the case to a class-action suit so that "Jane Roe" would represent not just McCorvey but all pregnant women. Dr. James Hallford, a Texas attorney who had been charged with performing illegal abortions, had also joined the suit as an "intervenor." Hallford's attorneys, Roy Merrill and Fred Bruner, prepared to defend him on Fourteenth Amendment grounds.
On the defense side, Robert Flowers and Jay Floyd, the respective head and assistant chief of the enforcement division of Texas' attorney general's office, represented the state. Texas had prepared its case based on the argument that the unborn had legal rights and that the state must protect them.
When Goldberg called the hearing to order, Tolle explained for all the attorneys present that there was no testimony to present, since there were no disputes as to the facts in the case. The court gave the plaintiffs one half-hour in which to argue for a "summary judgment" (a ruling on the facts without further discussion). The defense had one half-hour in which to argue for dismissal.
Coffee addressed the procedural points of the plaintiffs' case, including "Roe's" standing to sue. She also had to establish that the case did, indeed, involve a constitutional issue requiring the three-judge court's consideration. The freedoms guaranteed by the First, Ninth, and Fourteenth Amendments led her to conclude: "I think the [abortion] statute is so bad that the court is just really going to have to strike it all down. I don't think it's worth salvaging."
Weddington, addressing the court on the heart of the case (called substantive issues), rebutted the argument presented by state attorneys in their pre-trial briefs. The "justification which the state alleges for the state abortion statute," she said, ". . . is the protection of the life of the child. . . . I would like to draw the court's attention to the fact that life is an ongoing process. It is almost impossible to define a point at which life begins or perhaps even at which life ends."
When Weddington had outlined the right-to-privacy argument, Goldberg asked whether she thought the state had any compelling interest that would entitle it to regulate abortions. Weddington responded that the state might require that only qualified physicians perform the procedure. Pressed by Goldberg to evaluate what impact a woman's stage of pregnancy might have on the state's interest, Weddington allowed that "the state of pregnancy gives me some pause. . . . You could recognize life when the fetus is able to live outside the body of the mother."
Goldberg's last question was whether Weddington found "this statute . . . more vulnerable on Ninth Amendment grounds or on [the Fourteenth Amendment grounds of] vagueness."
Weddington responded without hesitation. "I believe it is more vulnerable on the Ninth Amendment basis."
Attorney Bruner, for Dr. Hallford, defended his client on Fourteenth Amendment grounds.
Opening the arguments for the state, Floyd said that since "Roe" must certainly be toward the end of her pregnancy and past the point where the court's decision could affect her, she now lacked standing to sue. Goldberg and Hughes said they found otherwise, and Floyd began to dispute Coffee's First Amendment argument. "I cannot perceive . . . how it would fall under religion, speech or press of the First Amendment," he said. Hughes interrupted, "We agree with you on that," and Goldberg added, "go to the Ninth Amendment and about vagueness." When Floyd began to discuss the Fourteenth Amendment, Goldberg again cut him off, saying, "Skip it."
Turning to the state's goal of protecting fetal life, Floyd then said,
There have been many, many, arguments as to when an embryo becomes a human being. There have been many religious groups that have joined in the controversy, and I'm not setting forth the Catholic faith. . . . But the point is, that the state's interest is [in] whether or not murder occurs, that is, if the embryo is considered a human being.
During an exchange concerning privacy, Goldberg offered his view that "I think its a bad word in this area, but apparently everyone wants to use it. . . . I haven't come up with a phrase myself yet, but I just know 'privacy' won't do."
Tolle followed Floyd, reiterating the claim that "the state has got a right to protect life that is being [i.e., exists] at whatever stage it may be. . . ." He said that any possible change in the relevant law was a matter for state legislatures and not the courts. As to the application of the Ninth Amendment, he claimed that "the right of that child to life is superior to that woman's right to privacy."
The judges found otherwise. In their unanimous opinion issued June 17, 1970, they wrote: "The Texas abortion laws must be declared unconstitutional because they deprive single women and married couples, of their right, secured by the Ninth Amendment, to choose whether to have children."
To the Heights
Because the fifth circuit court issued declarative relief , a finding that the law was unconstitutional, without also issuing injunctive relief , an order to stop enforcement of the law, the plaintiffs could appeal the case directly to the Supreme Court. The Court scheduled the trial for December 13, 1971.
Forty-two amici curiae , or "friend of the court," briefs were filed on behalf of "Roe." They represented organizations as diverse as the American College of Gynecologists and Obstetricians, the New York Academy of Medicine, Planned Parenthood, and the California chapter of the National Organization for Women. A "woman's brief" argued, as author Marian Faux summarizes it, "that even if a fetus were found to be a legal person, a woman still could not be compelled to nurture it in her body against her will." Prominent women such as theologian Mary Daly, Barnard College president Millicent McIntosh, anthropologist Margaret Mead, and former U.S. senator Maurine B. Neuberger (D-Oregon), all signed it.
On December 13, 1971, Weddington argued before the Supreme Court that a woman's right to make childbearing decisions free of government compulsion was fundamental to her right to control her own life. Asking the Court to reject the state's claim that the fetus was entitled to governmental protection, she said, "The Constitution, as I read it . . . attaches protection to the person at the time of birth [not conception]. Those persons born [not conceived] are citizens."
Floyd, speaking for the defense, said that "Roe" must certainly have concluded her pregnancy and lost her standing to sue. Asked how the law could ever be challenged by any one of the affected pregnant women, Floyd replied: "There are situations in which . . . no remedy is provided. Now, I think she makes her choice prior to the time she becomes pregnant. That is the time of the choice. . . . Once a child is born, a woman has no choice; and I think pregnancy makes her make that choice as well."
The Court asked Floyd why no states had ever prosecuted the women who obtained abortions if, indeed, abortion was murder. It also asked him to clarify why prosecutors did not charge doctors who performed illegal abortions with premeditated murder, but with the lesser charge of "ordinary felony murder." Finally, the Court asked when life, in the view of the state of Texas, actually began. After several faltering responses, Floyd could only say, "I don't Mr. Justice there are unanswerable questions in this field."
Waiting for a Full Court
There were only seven sitting justices when the Supreme Court heard Roe v. Wade . Rather than issue an opinion, the justices scheduled the case for re-argument in October 1972, when two justices, Lewis Powell and William Rehnquist, would join the court. Just before the October hearing, the Supreme Court had decided Eisenstadt v. Baird (see page 172 of Women's Rights on Trial ). As a result, unmarried persons could now use birth control. The Court also further defined the scope of the Ninth Amendment. In the majority opinion, Justice William J. Brennan wrote:
If the right of privacy means anything, it is the right of the individual , married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
When lawyers for Roe v. Wade went before the nine justices on October 10, 1972, the plaintiffs made all of their earlier points, emphasizing the Ninth Amendment's right to privacy. The state continued to maintain that it had a compelling interest in preserving fetal life.
The Right to Choice
On January 22, 1973, the Supreme Court ruled. Reading from his majority opinion, Justice Harry Blackmun reviewed the history of abortion legislation in the United States, saying "The restrictive criminal abortion laws in effect in a majority of states today . . . are not of ancient or even of common law origin." Rather, he said, it seemed that legislators had designed these laws to protect women from a procedure that was, in the 19th century, a risk to their health. That objective was no longer valid, said Blackmun, since abortions were now as safe as or safer than childbirth for women.
Blackmun then turned to a discussion of the "right to personal privacy," before coming to the central point of his decision:
The right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions on state action . . . or . . . in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision to terminate her pregnancy.
Discussing Texas' claim that it had the right to infringe on Roe's rights "to protect prenatal life," Blackmun examined the U.S. Constitution to see if the Founding Fathers had intended to include prenatal life when they used the word "person" in the document. He concluded that nowhere in the document had he found "any possible pre-natal application." He declared, "The word 'person' as used in the Fourteenth Amendment, does not include the unborn."
Addressing "the difficult question of when life begins," Blackmun said, "When 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." He then discussed the wide divergence of thinking on "this most sensitive and difficult question." Blackmun pointed out that "the view that life does not begin until live birth . . . appears to be the predominant, though not the unanimous attitude of the Jewish faith . . . [and] also the position of a large segment of the Protestant community, . . ." while the Roman Catholic Church "would recognize the existence of life from the moment of conception . . . a view strongly held by many non-Catholics as well." Blackmun summarized the impact of these competing views upon the Court's decision: "In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake."
Continuing, Blackmun cautioned that neither a fetus' ineligibility for state protection nor a woman's right to privacy was absolute:
The State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . and . . . it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during the pregnancy, each becomes "compelling."
Finally, Blackmun outlined a formula to balance these competing interests. During the first trimester of pregnancy, the "abortion decision . . . must be left to the medical judgment of the pregnant woman's attending physician." During the second trimester, a state could "regulate the abortion procedure in ways that are reasonably related to maternal health." During "the stage subsequent to viability, the State . . . may . . . 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."
Doe v. Bolton
The Supreme Court issued another decision in an abortion case, Doe v. Bolton , on the same day. It concerned an impoverished Georgia wife and mother of three children. A former mental hospital patient, she had already surrendered one of her children for adoption and had placed the other two in foster care. When she became pregnant again, on doctors' advice, she decided to seek an abortion. When she could not obtain one, she, like Norma McCorvey, became a plaintiff against her state.
Brennan also delivered the majority opinion for Doe v. Bolton . Mentioning Roe v. Wade , he addressed Georgia's regulations concerning "medically necessary" abortions. In that decision, the Court found the state's "procedural requirements" ; unconstitutional. These included Georgia's requirement that abortions be performed only in hospitals accredited by the Joint Commission on the Accreditation of Hospitals; the requirement that an abortion be approved by a hospital abortion committee and that two independent physicians confirm the committee's judgment; and that only residents of Georgia might obtain abortions within the state's borders.
Blackmun, at the conclusion of Doe v. Bolton , said that the two abortion opinions issued on January 22, 1973, "are to be read together."
While Supreme Court decisions since 1973 including Harris v. McRae in 1980 (see page 185 of Women's Rights on Trial ) and Webster v. Reproductive Health Services in 1989 (see page 197 of Women's Rights on Trial ) have reduced federal spending for abortions, thereby limiting free services for poor women and minors, the basic premise of Roe v. Wade was emphatically upheld in 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey (see page 202 of Women's Rights on Trial ).
For Further Reading
American Decades, published by Thomson Gale; also available in Student Resource Center Gold, a Thomson Gale online database
Cary, Eve, and Kathleen Willert Peratis. Woman and the Law. Skokie, Ill.: National Textbook Co. in conjunction with the American Civil Liberties Union, New York, 1977.
Cushman, Robert F. Cases in Constitutional Law , 6th
ed. Englewood, N.J.: Prentice Hall, 1984.
Davis, Flora. Moving the Mountain: The Women's Movement in America Since 1960 . New York: Simon & Schuster, 1991.
Ehrenreich, Barbara, and Deidre English. For Her Own Good: 150 Years of the Experts' Advice to Women. New York: Doubleday, 1979.
Faux, Marion. Roe v. Wade . New York: Macmillan Co., 1988.
Garrow, David J. Liberty & Sexuality: The Right to Privacy and the Making of Roe v. Wade . New York: Macmillan, 1994.
Goldstein, Leslie Friedman. The Constitutional Rights of Women, rev. ed. Madison: University of Wisconsin Press, 1989.
Guitton, Stephanie, and Peter Irons, eds. May It Please the Court: Arguments on Abortion (live recordings and transcripts). New York: The New Press, 1995.
Petchesky, Rosalind Pollack. Abortion and Woman's Choice . Boston: Northeastern University Press, 1984, rev. 1990.
Source: Women's Rights on Trial, 1st Ed., Gale, 1997, p.312.