SCOTUS: How Abortion Became a Constitutional Right (Roe v. Wade)

Despite all the controversy surrounding abortion today, it is important to understand that abortion was actually a constitutional right as ruled by the 1973 landmark Supreme Court case of Roe v. Wade. How and why did the court decide that abortion was a right? Let’s find out in today’s post.

In June 1969, Norma McCorvey, aged 21 at the time, discovered she was pregnant and decided to get an abortion. Because abortion was illegal in Texas at the time, she decided to get a “back-alley” illegal abortion, but she later found out that the unauthorized facility was shut down by police. She later found Linda Coffee and Sarah Weddington, two lawyers willing to take her case to court for her. Unfortunately, by the time the case could be decided, she ended up giving birth and putting the child up for adoption.

So, in 1970, Coffee and Weddington filed a lawsuit against the State of Texas in the District Court for the Northern District of Texas, under the pseudonym “Jane Roe” for McCorvey. A three-judge panel of the District Court ruled unanimously that the law was illegal and violated the right to privacy as per the Ninth Amendment. However, the court didn’t grant an injunction against the law. The defense for the state was Dallas County District Attorney Henry Wade, who appealed the case to the Supreme Court.

After lots of arguments, debates among the justices, and a lengthy delay caused by the deaths of two justices, the Supreme Court finally handed down the ruling in January 1973, after two separate argument days in December 1971 and October 1972. In a 7-2 ruling, the justices ruled in favor of Roe, that women had a fundamental right to choose whether or not to have abortions and declared Texas’s (and many other state’s) anti-abortion laws as unconstitutional.

The Court ruled that the Constitution guarantees all people the right to privacy, under both the Ninth and Fourteenth Amendments. Restricting abortions, therefore, was equivalent to restricting a women’s liberty. Prohibiting abortions would infringe a women’s “right to privacy,” because unwanted pregnancies may bring psychological and physical harm to pregnant women. However, they also ruled that this right was not absolute.

This struck down anti-abortion laws in 39 states: (All red states had anti-abortion laws.)

Because of Roe v. Wade, abortion is officially legal in every state in the U.S. However, many states, especially conservative stronghold states, have made it particularly difficult for women to get an abortion, by requiring parental consent, banning all abortions after a baby is at a certain age, not covering abortions under the ACA, and requiring waiting periods.

There were two justices that dissented in this case. The dissenters, Justices Byron White and William Rehnquist claimed that the Court had no basis to decide on the legality of abortion, and whether or not a pregnant woman’s values are more important than that of an unborn baby’s. In addition, Rehnquist claimed that nowhere in the Fourteenth Amendment was abortion guaranteed and that the case made up a new constitutional right.

To this day, the case remains controversial (why it remains controversial, though, is a discussion reserved for a future post). Advocates of abortion (pro-choice) believe that the case was integral in preserving women’s rights, personal freedom, and privacy. In addition, they also believe that access to safe abortion is a fundamental right of a woman. Some have even claimed that anti-abortion laws violate the Thirteenth Amendment – forcing a woman to give birth is the same as subjecting them to involuntary servitude.

On the other hand, opponents of abortion (pro-life) believe that the case was a form of judicial activism and lacked a valid constitutional foundation. Republicans still continue to be pro-life.

Regardless of the debate about abortion, this case certainly was important in ensuring a woman’s access to an abortion. It has since been reaffirmed by Planned Parenthood v. Casey, Stenberg v. Carhart, Gonzales v. Carhart, Whole Woman’s Health v. Hellerstedt, and June Medical Services v. Gee, among other cases.

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