Roe v. Wade
Summary and Keywords
Decided by the Supreme Court in 1973, Roe v. Wade legalized abortion across the United States. The 7-2 decision came at the end of a decades-long struggle to reform—and later repeal—abortion laws. Although all of the justices understood that Roe addressed a profoundly important question, none of them imagined that it would later become a flashpoint of American politics or shape those politics for decades to come.
Holding that the right to privacy covered a woman’s choice to terminate her pregnancy, Roe and its companion case, Doe v. Bolton, struck down many of the abortion regulations on the books. The lead-up to and aftermath of Roe tell a story not only of a single Supreme Court decision but also of the historical shifts that the decision shaped and reflected: the emergence of a movement for women’s liberation, the rise of grassroots conservatism, political party realignment, controversy about the welfare state, changes to the family structure, and the politicization of science. It is a messy and complicated story that evolved parallel to different ideas about the decision itself. In later decades, Roe arguably became the best-known opinion issued by the Supreme Court, a symbol of an ever-changing set of beliefs about family, health care, and the role of the judiciary in American democracy.
Decided by the Supreme Court in 1973, Roe v. Wade legalized abortion across the United States. Roe struck down a Texas law banning abortions unless a woman’s life was in danger, while a companion case, Doe v. Bolton, invalidated a Georgia statute that heavily regulated access. Even from a purely legal standpoint, Roe was a major case. In a single opinion, the justices expanded the ideas of constitutional privacy and equality, struck down over thirty state laws, and concluded that the fetus was not a person as defined by the Fourteenth Amendment. But as it lives on in the public imagination, Roe v. Wade refers not only to what the Court held in 1973 but also to the many meanings Americans later projected onto the decision in the decades to come.
Within months of the Court’s decision, scholars debated the merits of the method the Roe Court used to reach a decision. Over time, attacks on the decision multiplied. Ruth Bader Ginsburg, a future justice of the Supreme Court, contended that the Court’s decision stopped the momentum of the abortion-rights cause by focusing “on a medically approved autonomy idea, to the exclusion of a constitutionally based sex equality perspective.”1 In 1992, Justice Antonin Scalia articulated the common view that Roe “destroyed the compromises of the past, rendered impossible the compromises of the future, [and] fanned into life an issue that has inflamed our national politics . . . ever since.”2 Critics took issue with more than the reasoning of the Court’s decision. Like Scalia, law professors and historians concluded that Roe had eliminated consensus solutions on abortion and polarized gender politics more broadly.
But the political backlash to Roe was more gradual and complex than the firestorm described by Ginsburg and Scalia. Before the Supreme Court intervened, the social movements contesting the abortion issue already championed diametrically opposed constitutional rights. In the early 1970s, Republican leaders tried to make abortion a wedge issue, escalating a conflict that was already unfolding in states considering abortion-law reform. After Roe, the antiabortion movement became better organized, but the bitter stalemate described by some scholars and judges did not take hold until the later 1970s. Even when the abortion debate became extremely polarized, Roe alone was not to blame. Political party realignment, the emergence of the religious right, and the popularization of neoliberalism and small-government politics all raised the stakes of the debate.
Disentangling the myth and reality of Roe v. Wade offers an important window into the evolution of abortion politics and the broader changes to the nation in the closing decades of the 20th century. Better understanding Roe also illustrates how a judicial decision can become a canvas for beliefs, values, and historical events far removed from anything ever considered by the Court.
While Americans always terminated pregnancies, the political controversy now associated with it began relatively recently. During the 18th and 19th centuries, states did not criminalize the termination of pregnancy before “quickening,” the time when fetal movement could be detected. By the mid-19th century, abortion had become a booming business, led by well-known practitioners like New York’s Madame Restell. The visibility of abortion, together with the murky distinctions among doctors, midwives, and other health providers, inspired a campaign to criminalize the procedure. Led by members of the American Medical Association, physician reformers worked to change ideas about when human life began and when abortion was moral. The physicians’ campaign came at a time when moral crusaders, Anthony Comstock among them, worked to introduce federal legislation to curb the spread of birth control and pornography.3
By 1880, every state had introduced criminal abortion laws, making narrow exceptions when the procedure was needed to save a woman’s life. Enforcement of the laws was uneven and difficult to predict. Physicians held varying ideas about when a medical condition justified abortion, and this uncertainty shaped enforcement of laws. Who faced punishment for criminal abortion was also complex. Although some state laws left open the possibility that women seeking abortion could face prosecution as an accomplice or conspirator, prosecutors generally targeted those who performed abortions, particularly when a woman died during a procedure. For some women forced to testify in court and cooperate with law enforcement, intense investigations, publicity, and exposure effectively replaced formal legal punishments.4
By the 1930s and 1940s, improvements in obstetric and gynecological care disrupted the status quo. As fewer physicians could justify abortion as a means of saving a woman’s life, questions about the meaning of therapeutic exceptions took on new urgency. Hospitals created committees to limit the practice of therapeutic abortion. Family-planning organizations like the Planned Parenthood Federation of American hosted conferences on abortion, pushing for a new model law on the subject. In 1959, the American Law Institute (ALI), a group of distinguished legal scholars and judges, released a draft proposal that would make abortion legal in cases of fetal abnormality, rape or incest, or a threat to the woman’s health.5
In 1962, when the ALI endorsed a final version of the recommendations as part of the Model Penal Code, Shirley Finkbine’s story made abortion front-page news. Finkbine learned that thalidomide, a drug she had taken while pregnant, could lead to severe birth defects. After failing to get an abortion in Arizona, she eventually traveled to Sweden to terminate her pregnancy. Her saga captured the public imagination, and in 1962, a Gallup poll found that a majority of respondents believed that Finkbine had done the right thing.6
In the early 1960s, an epidemic of German measles reinforced concerns about the threat of fetal abnormalities. Women exposed in the early months of pregnancy stood a high chance of bearing a child with fetal defects, and experts predicted that as many as 20,000 children would be born with serious disabilities as a result of the outbreak. Media coverage of “rubella babies” helped to change public understandings of abortion. For the first time, many believed that anyone could have a reason to seek out the procedure, including white, middle-class women.7
Anxieties about German measles came at a time when attitudes about birth control were changing. After World War II, a baby boom convinced some policymakers that the world was on the brink of a population explosion. The population-control movement drew a diverse group of supporters. Cold War hawks worried that out-of-control growth would tip the balance in the conflict with the Soviet Union. Advocates of eugenic legal reform saw a reduction in the quantity of the population as the most politically realistic way to improve its quality.8
Religious opposition to contraception had also begun to fade. Protestant denominations gradually revised their positions on contraception. Although the Catholic Church remained steadfast in its opposition, lay believers took a different view. Conventionally, believers saw opposition to birth control and abortion as interrelated. For this reason, growing public acceptance of contraception augured well for those seeking to legalize abortion.
While the climate for reform seemed promising, the formal push for it took shape slowly. In 1964, Dr. Alan Guttmacher of Planned Parenthood organized the Association for the Study of Abortion as an educational organization. With only twenty members, the group primarily lent prestige to the unfolding in the states. In 1967, Colorado became the first state to adopt a version of the ALI bill. By 1972, thirteen states had followed.
Nevertheless, the reform laws pleased almost no one. The exceptions carved out by the ALI were vague and unpredictable. Afraid of civil lawsuits and jail time, doctors in reform states took an extremely cautious approach. Some responded by demanding the complete repeal of abortion restrictions, including doctors and population controllers. Whereas some physicians saw legal abortion as a matter of public health, population controllers argued that legalizing the procedure was necessary to conserve scarce national resources.
The repeal movement also struck a chord with the growing women’s movement. The National Organization for Women (NOW), a major feminist organization, demanded the repeal of abortion restrictions in 1968. Feminists joined in calls for the right of a woman to control her own body and connected legalization to women’s ability to participate fully in the political, social, and economic life of the nation. Supporters of women’s rights also influenced the decision of other major organizations to endorse repeal, including Planned Parenthood in 1968 and NARAL (then the National Association for the Repeal of Abortion Laws) in 1969.
At the time repeal won support, conflict about abortion had already escalated. In the 1930s and 1940s, the Catholic Church wove concern about the termination of pregnancy into its campaign against birth control. By the 1950s, Catholic doctors and activists moved beyond religious arguments, insisting that legal abortion would violate the constitutional rights of the unborn child. As more states adopted a version of the ALI, abortion opponents changed course. Self-proclaimed right-to-lifers developed a single-issue approach and emphasized the right to life. Movement members saw these arguments as advantageous because some state courts had compensated parents for fetal injuries. Other pro-lifers took inspiration from Supreme Court decisions recognizing rights that were only implied in the text of the Constitution. A rights-based strategy had a broader appeal, helping the right-to-life movement win the support of some Protestants, Mormons, and Jews.9
The outcome of political struggles over abortion remained unpredictable throughout the early 1970s. In addition to the states that adopted the ALI model, four others eliminated virtually all restrictions on the procedure. Right-to-lifers mobilized to reintroduce restrictions in New York following repeal in 1970. The effort failed only because of a veto by Governor Nelson Rockefeller. In 1972, right-to-lifers succeeded in blocking a Michigan referendum that would have liberalized abortion access. National party politics also contributed to a deepening divide on the issue. California Republicans had experimented with using abortion as a wedge issue since 1970, and two years later, strategists working for Richard Nixon hoped to use the issue to convince Catholics to abandon the Democratic Party.10
Before the Court heard any argument, abortion politics had become sharply polarized. It was hard to determine who had the upper hand in the battles unfolding from state to state, but with the Roe decision, the course of the conflict would change.
The groundwork for the constitutional strategy that played out in Roe began with a challenge to Connecticut’s ban on contraceptive use by married couples. In 1961, a first attempt to undo the law failed. In Poe v. Ullman, the Court saw no need to address the constitutionality of the law when it was never enforced. A local Planned Parenthood affiliate staged a violation of the law, ensuring that it would return to the Supreme Court.11
In 1965, in a seven-to-two decision, the Supreme Court in Griswold v. Connecticut agreed that the Connecticut law violated a fundamental constitutional right to privacy. Griswold did not spell out precisely where in the Constitution the right to privacy could be found. Emphasizing the importance of marriage, William O. Douglas’s majority held that text of the Constitution implied the existence of other important liberties.12
Supporters of legal abortion hoped that the courts would apply the privacy right more broadly. In 1969, during his prosecution for performing an illegal abortion, Dr. Milan Vuitch argued that the Washington, DC, ordinance under which he was prosecuted was unconstitutionally vague. Vuitch claimed that the law was so poorly written that doctors would not know ahead of time if they had committed a crime. Although the justices in United States v. Vuitch rejected his argument, reformers were heartened by the Court’s 1972 in Eisenstadt v. Baird.13
That case involved a Massachusetts law limiting single people’s access to birth control. Rather than relying on the privacy strategy honed by repeal proponents, the Court found that Massachusetts had violated the Equal Protection Clause. Eisenstadt reasoned that there was no rational basis for denying single people access to birth control when married people did not face the same issue. William Brennan’s majority sent a hopeful signal to champions of abortion reform. “If the right to privacy means anything,” Brennan reasoned, “it is the right of the individual . . . to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child.”14
The Court already had Roe before it when Eisenstadt came down. Roe addressed a Texas law allowing abortion only when necessary to save a woman’s life, while Doe involved a Georgia version of the ALI reform bill. While the justices did not easily reach a consensus about the Georgia law, there seemed to be a majority convinced that the Texas law was unconstitutional. Harry Blackmun circulated a majority holding that the law was unconstitutionally vague, but he was unhappy with the lukewarm response from his colleagues and narrowly convinced his colleagues to hold the case for re-argument.15
When the case returned to the Court, the briefs submitted by the parties and amicus curiae put on display a wide a range of constitutional arguments about abortion. Americans United for Life, an antiabortion group, highlighted the harms that women supposedly experienced as a result of abortion, while the Planned Parenthood Federation of America laid out evidence of the safety of the procedure and the injuries attributable to back-alley abortions. Friend-of-the-court briefs emphasized that abortion undercut women’s interests in liberty, equality, and dignity. Antiabortion briefs pointed to the personhood of the fetus and identified a fundamental right to life in the Fourteenth Amendment.
The Court’s Decision
When the Court handed down Roe in January 1973, the seven-to-two majority little resembled the draft Blackmun had circulated. Blackmun’s majority began with a history of attitudes toward abortion. Here, Roe emphasized that bans on abortion were recent—dating only to the 19th century. Blackmun also emphasized that major professional organizations, including the American Medical Association and the American Bar Association, had joined calls for legalization.
Roe next held that “[t]he right to privacy is . . . broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The majority stressed the injuries a woman could experience as the result of an unplanned pregnancy, reiterating that the decision belonged to “the woman and her responsible physician.”16
The Court weighed several potential interests against this constitutional right. First, Roe considered whether the fetus should be considered a person under the Fourteenth Amendment. If the Court answered the question in the affirmative, then the unborn child would be entitled to legal rights, making legal abortion problematic. Canvassing other uses of the word “person” in the constitutional text, the Court concluded that the term applied only after birth.
Next, the Court asked whether the state had a compelling interest in protecting life from the moment of conception. Reasoning that medical, religious, and philosophical authorities had been unable to reach a consensus about when life began, Roe held that Texas could not override the woman’s constitutional rights by adopting one theory over another.
Insisting that the government still had important interests in regulating abortion, the Court set out a trimester framework that would apply to any regulation of abortion. In the first trimester, the state had to leave the decision to the woman and her physician. During the second trimester, laws could regulate abortion to protect women’s health. Only after viability, the point at which a child could survive outside the womb without medical intervention, could the state promote an interest in fetal life.
Doe and Roe struck down the Georgia and Texas laws, functionally invalidating every abortion law then on the books. Doe upheld only a requirement that a physician had to base a decision on “his best clinical judgment,” reasoning that the term required a physician to consider a woman’s age and physical, emotional, and psychological condition.17
Roe touched off intense discussion in the legal academy. It was no surprise that conservative law professors, many of whom had criticized earlier decisions by the Court under Earl Warren and Warren Burger, saw Roe as flawed. However, Roe also created a crisis for liberal academics. Some, like Laurence Tribe of Harvard Law School, became the first of many to offer a sounder constitutional foundation for the abortion right. Others saw Roe as a signal of the problems with a particular approach to judging, one that discounted the will of the people.18
Academic analysis of Roe ensured that the decision would become a prime example in scholarly discussions of the role of the judiciary in modern America. Should—and could—courts act as engines of social change? How could the courts act aggressively without interfering with the nation’s commitment to democracy? Roe soon became a key example of the problems with an “activist” judiciary.
Roe also helped to nationalize antiabortion activities. Led by the National Right to Life Committee, right-to-lifers prioritized a constitutional amendment that would restore the right to life, reverse Roe, and ban abortion across the country. For years, movement organizations endlessly debated what a perfect amendment would involve. While fighting about the details, activists agreed on the broad outlines of a constitutional vision. For the most part, right-to-lifers did not immediately take an interest in arguments about judicial activism. Instead of blaming the Court for inventing a constitutional approach whole cloth, movement members faulted the justices for ignoring the unborn child’s right to life and equal treatment.
The abortion-rights movement also changed in the aftermath of Roe. While concerns about women’s rights had always been central to some in the movement, leading organizations like NARAL and Planned Parenthood had sometimes avoided arguments about equality or autonomy for women, believing them to be unnecessarily controversial. After Roe, women took on positions of leadership in most major abortion-rights organizations and emphasized ideas about women’s rights that they tied to Roe itself. At the same time, scandals consuming the population-control movement made it less attractive to tout abortion as a means of curbing demographic growth. A wave of involuntary sterilizations made news not long after the leaders of developing countries charged population controllers with racism and coercion.
The medical practice of abortion also changed in the aftermath of legalization. Following the decision of Roe, a network of clinics opened to serve clients. In the late 1970s, the National Abortion Federation (NAF) organized to set medical standards, provide mutual support, and lend a political voice to abortion providers. After legalization, providers grew concerned that saline abortions, then-common procedures performed by injecting fluid into the uterus, were time consuming, painful, and emotionally difficult for patients. Doctors developed dilation and evacuation, a procedure involving the dilation of the cervix and removal of any uterine contents. Dilation and evacuation proved to be safer and less taxing for staff and patients.19
Even so, the threat of criminal prosecution was never far away. In the mid-1970s, Boston prosecutors brought manslaughter charges against Dr. Kenneth Edelin for performing an abortion by hysterotomy, a second-trimester procedure similar to a cesarean section. Edelin’s conviction was ultimately overturned on appeal, but the threat of legal intervention scared abortion providers. Many committed to avoiding Edelin’s fate by using only techniques that would eliminate the risk of a live birth during abortion.
Meanwhile, Congress refused to take action on an antiabortion constitutional amendment. Right-to-lifers had more success in the courts. Founded as an educational organization, Americans United for Life (AUL) created an antiabortion public-interest law firm. Rather than asking for the recognition of the right to life, AUL planned to argue that some abortion restrictions were constitutional under Roe.
With the passage of the Hyde Amendment in 1976, AUL and its allies believed that an incremental attack on Roe would pay off. Following a series of state and local laws, the Hyde Amendment, a rider to an appropriations bill, prohibited Medicaid reimbursement for most abortions. Although the precise scope of the amendment sparked a fight every year, it threatened to cut off abortion access for poor women who could not afford the procedure.
When the Court rejected a constitutional challenge to the Hyde Amendment, some movement members saw the potential for something much more. The movement embraced a form of incrementalism, sponsoring state legislation that might survive Supreme Court review and then litigating to defend it. In this way, the movement planned to hollow out the Court’s decision until it had no real meaning.
Right-to-lifers also influenced electoral politics. Antiabortion political action committees claimed to have influenced key congressional races in the late 1970s. As their opposition evolved, supporters of abortion rights committed to becoming more politically savvy. Arguments about a right to choose had circulated for years, but NARAL and other movement organizations saw the idea of choice as a way to convince ambivalent voters.
While compromise on the abortion issue seemed possible, some activists tried to find common ground on other gender issues, including pregnancy-discrimination legislation. By the early 1980s, however, an evolving political environment ensured that the abortion debate would only become only more bitter. Led by former insiders like Paul Weyrich, the New Right hoped to force the Republican Party to the Right. Weyrich and his allies believed that conservative evangelical Protestants and Catholics could swing elections their way. With Weyrich’s help, new groups organized conservative evangelicals, including the Moral Majority (1979).20
Aligning more closely with the newfound Religious Right guaranteed financial stability and political influence for the antiabortion movement. Right-to-lifers also gravitated toward conservatism because of the changing party politics of abortion. Although Republicans had tried to make abortion an election issue in the early 1970s, both parties avoided taking a clear position for most of the decade. The parties took contrasting stands on the issue during the 1976 election, but by 1980, the divide between Republicans and Democrats had become far more pronounced. Ronald Reagan, who had taken antiabortion positions since 1976, ran on a Republican platform that endorsed a fetal protective amendment to the Constitution. Carter took the position that Roe was the law of the land and deserved respect. At the end of the election season, the Republican Party had started a relationship with the antiabortion movement that would shape activists’ cause in coming decades.
After Reagan’s election, hopes for a fetal-protective constitutional amendment ran high, but right-to-lifers could not agree on how to proceed. Movement incrementalists favored an approach that would overrule Roe, while hardliners opposed anything that would stop short of ending abortion. By 1983, a last-ditch attempt to pass the Hatch-Eagleton Amendment failed, convincing abortion opponents that the way forward depended on the courts. Movement leaders worked to popularize claims about judicial activism that had already shaped academic discussion.
The Court’s most recent abortion decision, City of Akron v. Akron Center for Reproductive Health (1983), only intensified right-to-lifers’ focus. Reagan’s first nominee, Sandra Day O’Connor, dissented from a decision striking down an ordinance that abortion opponents had promoted as a model across the country. Her vote convinced some right-to-lifers that changing the Court’s composition could pay dividends for those dedicated to overturning Roe.21
In the next decade, the Supreme Court majority in favor of abortion rights shrunk. The Court upheld several parental-consultation laws, pleasing abortion opponents who believed that minors’ rights could be a weakness for the opposition. In Thornburgh v. American College of Obstetricians and Gynecologists (1986), the Court again struck down a multi-restriction law, but four justices dissented from the majority. Throughout the 1980s, because of decisions like Thornburgh, Supreme Court nominations became more of a focal point during presidential elections, and members of Congress routinely asked judicial nominees for their views about Roe. In 1987, the most intense such hearing resulted in the defeat of Robert Bork’s nomination to the nation’s highest court. After Bork, judicial nominations remained intensely political.22
In 1989, the Court seemed ready to overrule Roe altogether. A plurality opinion, Webster v. Reproductive Health Services, upheld most of a challenged Missouri law. Three justices suggested that “the key elements of the Roe framework . . . are not found in the text of the Constitution, or any place else anyone would expect to find a constitutional principle.” While Justice O’Connor reasoned that the statute was compatible with Roe, Justice Antonin Scalia called for overruling Roe. Webster convinced many that Roe would be overturned soon, if it had not been already.23
The post-Webster period saw both sides experiment with different strategies. Some right-to-lifers grew frustrated with the pace of change and tried to blockade clinics directly. Led by Randall Terry’s Operation Rescue, clinic blockaders took to the streets at a time when clinic violence was on the rise. Bombings, acid attacks, and vandalism led to a decrease in the number of doctors performing abortions. In the wake of the murder of doctors and clinic staff, Congress passed the Freedom of Access to Clinic Entrances Act (FACE), a law making it a crime to use force, threats, or physical obstruction to prevent people from entering reproductive-health clinics. The clinic-blockade movement declined because of internal divisions, crushing civil penalties, and criminal convictions.24
Even though clinic blockaders lost credibility, antiabortion violence tested the relationship between providers and those in the political wing of the abortion-rights movement. While political operatives could use the violence to energize supporters and raise money, providers felt vulnerable and unprotected. Supporters of abortion rights invested more in politics. The leaders of the pro-choice movement believed that a decision overruling Roe would energize supporters of legal abortion and put many more sympathetic politicians in office.
By 1990, Roe had taken on many meanings. Right-to-lifers sometimes presented Roe as a sign of the decay of the traditional family and a culture of selfishness. Others still identified Roe with the rejection of a right to life that defined a cultural tradition of protecting the vulnerable. As part of its “Who Decides?” campaign, NARAL made Roe a symbol of privacy from an overreaching state. Feminists often described Roe as a decision involving women’s autonomy and right to equal treatment. Roe had become as fluid as it was widely known.25
Casey and the Undue Burden Test
In 1992, in the decision of Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court defied most expectations. Casey involved a challenge to five provisions of Pennsylvania’s Abortion Control Act, but the case also asked the Court to explain more clearly what would become of Roe. The plurality began by confirming “the essential holding” of Roe that the Constitution protected a liberty interest that covered abortion. The plurality linked abortion to established case law on “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education.” Casey described a similar autonomy interest at stake in abortion—the “right to define one’s own concept of existence.”26
Casey suggested that the abortion right mattered because of women’s interest in equality as well as autonomy. Given the consequences of an unplanned pregnancy, the woman’s suffering was “too intimate and personal for the State to insist, without more, upon its vision of the woman’s role.”27
Casey next considered whether there were reasons to depart from stare decisis, the respect due to prior precedents. The plurality concluded that time had not proven Roe to be unworkable or eroded its doctrinal underpinnings. The Court also emphasized the extent to which women had come to rely on the existence of legal abortion in ordering their lives.
Nevertheless, the plurality concluded that medical advances had made Roe’s trimester framework obsolete. Casey first held that the government’s interest in fetal life continued throughout pregnancy rather than starting after viability. Describing the trimester divisions as rigid and unnecessary, the Court set them aside. Instead, courts would evaluate future abortion regulations under the undue-burden test. A restriction would be unconstitutional if it had “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus.”28
The Court went on to uphold all but one of the Pennsylvania regulations. Supporters of abortion rights took some hope from Casey’s holding on a spousal-consultation law. Recognizing that only a small number of women would refrain from telling their spouses because of fears of abuse, Casey nonetheless concluded that the restriction created an undue burden. The plurality also suggested that spousal-consultation laws rested on damaging stereotypes about gender roles.
Right-to-lifers saw the Court’s analysis of an informed-consent provision as especially significant. Casey reasoned that laws requiring providers to recite a script would be constitutional so long as the information included was “truthful and non-misleading.” Casey rejected the idea that such a regulation would compromise the rights of women or physicians’ interest in free speech. The Court also repeated an argument right-to-lifers had used since before Roe about the negative effect of abortion on women. “In attempting to ensure that a woman apprehend the full consequences of her decision,” the Court reasoned, “the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover late, with devastating consequences, that her decision was not fully informed.”29
Casey redefined Roe and changed the course of the conflict. Right-to-life groups used new informed-consent measures as a vehicle for claims about the negative effects of abortion on women. Abortion opponents also redoubled their efforts to introduce onerous facilities regulations, some of which required clinics to meet the same standards as hospitals. Groups like NARAL vowed to make abortion “legal, safe, and rare,” promoting access to contraception as well as abortion. Following the 1994 International Conference on Population and Development, other activists worked to spread the idea of reproductive justice, a framework that brought together access to abortion, contraception, and sex education with demands for the means and support women needed to raise children.
By the mid-1990s, those on opposing sides battled about a particular late-term abortion procedure, intact dilation and extraction. Information about the procedure became public after an abortion opponent leaked part of a presentation given by Dr. Martin Haskell at the annual convention of the National Abortion Federation. Douglas Johnson of the National Right to Life Committee described the procedure as “partial birth abortion,” and movement members launched a campaign to ban it. President Bill Clinton twice vetoed a federal ban on the procedure. In 2000, in Stenberg v. Carhart, the Supreme Court struck down a similar state law, emphasizing that it made no exception when the procedure was needed to protect a woman’s health. Three years later, President George W. Bush signed the Partial Birth Abortion Ban Act into law.30
In 2007, the Supreme Court decided a constitutional challenge to the federal law. In a five-to-four decision, Gonzales v. Carhart applied Casey’s undue-burden test and upheld the ban. Among the legitimate purposes identified, the Court was protecting women from post-abortion regret. Writing for the majority, Justice Kennedy saw it as “self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished . . . when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child.” Carhart also rejected a challenge to the law based on its lack of a health exception. Citing scientific uncertainty about when intact dilation and extraction would be necessary to help a woman, the Court reasoned that legislation could survive a facial challenge.31
Carhart exposed the extent to which abortion care had changed. While hospitals had performed most abortions in the immediate aftermath of Roe, almost all women sought out the procedure at independent clinics. Planned Parenthood had stayed mostly out of the abortion business when NAF was founded. By the mid-1980s, the national Planned Parenthood office took a more prominent role in political advocacy for abortion rights. Over time, the number of affiliates offering abortion services increased: whereas the 1979 NAF directory listed only one Planned Parenthood clinic, roughly half the affiliates did so by 2015. Although many affiliates provided a wide range of reproductive services, Planned Parenthood became the nation’s most visible abortion provider.
Almost a decade went by before the Supreme Court would hear another abortion case. In Whole Woman’s Health v. Hellerstedt, the Court heard a challenge to two provisions of Texas’s HB2, a law alleged to protect women from unsafe clinics and providers. One required doctors performing abortions to have admitting privileges within thirty miles. A second mandated that abortion clinics comply with the many regulations governing ambulatory surgical centers.
By a five-to-three vote, the Court struck down both regulations. The majority agreed with a trial court that HB2 would dramatically undermine access to abortion in the state. Nor was the majority convinced that the law protected women’s health. More importantly, the Court reinterpreted the undue-burden test. Whole Woman’s Health instructed courts to balance the burdens of a law against its benefits. Moreover, the Court clarified that courts should collect extensive evidence about the impact of a law rather than deferring to legislators’ analyses of it.
The abortion debate seemed likely to change again in the wake of Whole Woman’s Health. Some pro-lifers turned back to fetal-protective laws, emphasizing statutes that would ban abortion after twenty weeks, the time when activists claimed that the unborn child could experience pain. Others outlawed “dismemberment” abortions, measures that seemed likely to reach dilation and evacuation, the most common second-trimester procedure. Some movement members argued that it was too early to give up on strategies emphasizing the supposed negative effect of abortion on women.
Supporters of legal abortion also faced an uncertain future. Following the presidential 2016 election, Donald J. Trump vowed to nominate pro-life judges. With control of both houses of Congress, Republicans planned to defund Planned Parenthood and hoped to ban abortion after twenty weeks. With the membership of the Supreme Court likely to change, the fate of Roe seemed up in the air.
In the decades after its decision, Roe has continued to cast a long shadow over American law and culture. Roe receives credit (or blame) for eliminating possible compromises on a range of gender issues. Feminists identify it with what they see as a damaging brand of single-issue politics that leave out poor and non-white women. Nevertheless, Roe itself emerged from some of the major upheavals of the 20th century—medical advancements, changes to the family structure, battles about family planning, eugenics, and individualism.
The Court’s decision has assumed such an outsized role because many identify it with events that came before and after it. To be sure, Roe itself had far-reaching consequences, legalizing abortion coast to coast and further motivating the antiabortion movement. Over time, though, many politicians, lawyers, academics, and activists infused Roe with meanings that would have surprised the authors of the 1973 opinion. The history of Roe has been written not just in the courts but also in less expected places, including the legislatures, clinics, classrooms, and rallies where the abortion wars continue to be fought. For this reason, the story of Roe reaches far beyond the Supreme Court, and much of it remains to be told.
Discussion of the Literature
Roe v. Wade has generated a tremendous amount of scholarship, much of it on the moral, constitutional, and medical dimensions of the abortion debate. However, histories of its role in the abortion conflict even now remain incomplete. The earliest accounts often came as part of insiders’ accounts of the workings of the Burger Court, such as Bob Woodward and Scott Armstrong’s The Brethren: Inside the Supreme Court.32 Professional historians in the 1970s began positioning Roe in broader historical context, including Linda Gordon’s Women’s Body, Women’s Right: The History of Birth Control in America33 and James Mohr’s Abortion in America: The Origins and Evolution of National Policy, 1800–1900.34 While sometimes openly sympathetic to demands for legal abortion, these studies offered a nuanced view of the policies and cultural trends that had led to abortion bans and the fight to remove them. Sociologists also contributed to new understandings of the movements on either side of the abortion struggle. Kristin Luker’s Abortion and the Politics of Motherhood (1984)35 argued that competing views of gender roles defined the terms of the debate.
Professional historians began turning to the history of Roe in greater numbers in the 1990s. Some studies add to the scholarship on Roe’s place in the history of family planning, including Rickie Solinger’s Wake Up, Little Susie: Single Pregnancy and Race Before Roe v. Wade,36 Marvin Olasky’s Abortion Rites: A Social History of Abortion in America,37 Leslie Reagan’s When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973,38 and Donald Critchlow’s Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America.39 David Garrow’s Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade40 offered the first in-depth study of the strategies that helped to produce Roe and its progeny. In the 1990s, legal scholars also began bringing historical scholarship to bear in discussion about the constitutionality of abortion laws, chief among them Reva Siegel’s “Reasoning from the Body: A Historical Perspective on Abortion and Questions of Equal Protection.”41
After 2000, scholarship on Roe itself greatly expanded. Studies offered analysis of the forces that shaped discussion before the 1973 decision, particularly the reasons abortion politics became polarized well before 1973.42 Scholars have dug deeper into the evolution of the population-control movement and its position on abortion,43 while others have studied the impact of women of color, underground abortion providers, and feminist women’s health activists who made understudied contributions to the debate.44 Biographies of Supreme Court justices have shed light on what Roe meant within the Court.45 The right-to-life movement has received far more serious scholarly attention, with scholars exploring its origins, its post-Roe development, and its relationship to a larger history about American attitudes toward fetal life.46
Recent studies have also begun to move beyond a focus on the Court’s decision and the litigation tactics that produced it, discussing Roe’s legal reverberations in the context of the political, cultural, and economic upheavals that made as great a difference.47 Nor have studies homed in so exclusively on Roe’s place in political and legal history. Recent work has explored how case law before and after Roe shaped practices in American hospitals and clinics.48
The lead-up to Roe remains far better understood than its aftermath, particularly after 1980. We have only begun to understand the evolution of either a reproductive justice framework or the creation of politically sophisticated pro-choice organizations. The pro-life movement deserves more extensive consideration, as does the role of abortion in electoral politics in later decades. Study of Roe’s legacy outside of abortion is far from exhausted, and scholars have only begun to study attitudes and beliefs about the decision that depart from its formal language.
Traditionally, researchers interested in reproductive rights have looked to the Sophia Smith Collection at Smith College, which holds the Planned Parenthood Federation of America Collection, and to the Arthur and Elizabeth Schlesinger Library in the History of Women in America, at the Radcliffe Institute for Advanced Study at Harvard, which holds the papers of the National Abortion Rights Action League and the National Organization for Women. Princeton University’s holdings on the American Civil Liberties Union also offer helpful material. These archives also house material collected by influential state and local organizations, as well as prominent individuals. The Library of Congress holds the papers of several Supreme Court justices who took part in Roe and the decisions following it. Those interested in the pro-life movement can find useful material in the Dr. Edward Stanton Library at the Sisters of Life Convent, the Gerald Ford Presidential Library, and diocesan libraries in major cities including New York and Boston.
Connelly, Matthew. Fatal Misconception: The Struggle to Control World Population. Cambridge, MA: Harvard University Press, 2008.Find this resource:
Critchlow, Donald T.Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America. New York: Oxford University Press, 1999.Find this resource:
Dubow, Sara. Ourselves Unborn: A History of the Fetus in Modern America. New York: Oxford University Press, 2010.Find this resource:
Garrow, David J.Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. Berkeley: University of California Press, 1998.Find this resource:
Gordon, Linda. The Moral Property of Women: A History of Birth Control Politics in America. Champaign: University of Illinois Press, 2002.Find this resource:
Gorney, Cynthia. Articles of Faith: A Frontline History of the Abortion Wars. New York: Simon and Schuster, 2000.Find this resource:
Greenhouse, Linda. Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey. New York: Times Books, 2006.Find this resource:
Greenhouse, Linda, and Reva B. Siegel. “Before and After Roe v. Wade: New Questions about Backlash.” Yale Law Journal 120 (2011): 2034–2086.Find this resource:
Hull, N. E. H., and Peter James Hoffer. Roe v. Wade: The Abortion Controversy in American History. Lawrence: University of Kansas Press, 2001.Find this resource:
Mohr, James. Abortion in America: The Origins and Evolution of National Policy. New York: Oxford University Press, 1979.Find this resource:
Reagan, Leslie. When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973. Berkeley: University of California Press, 1997.Find this resource:
Reagan, Leslie. Dangerous Pregnancies: Mothers, Disabilities, and Abortion in Modern America. Berkeley: University of California Press, 2010.Find this resource:
Post, Robert and Reva B. Siegel. “Roe Rage: Democratic Constitutionalism and Backlash.” Harvard Civil Rights-Civil Liberties Review 42 (2007): 373–434.Find this resource:
Saletan, William. Bearing Right: How Conservatives Won the Abortion War. Berkeley: University of California Press, 2004.Find this resource:
Schoen, Johanna. Abortion After Roe: Abortion After Legalization. Chapel Hill: North Carolina Press, 2015.Find this resource:
Williams, Daniel K.Defenders of the Unborn: The Pro-Life Movement Before Roe v. Wade. New York: Oxford University Press, 2015.Find this resource:
Ziegler, Mary. After Roe: The Lost History of the Abortion Debate. Cambridge, MA: Harvard University Press, 2015.Find this resource:
(1.) Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” North Carolina Law Review 63 (1985): 384.
(2.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 550 U.S. 833, 997, 1001 (1992) (plurality decision) (Scalia, J., dissenting).
(3.) Nicola Kay Beisel, Imperiled Innocents: Family Reproduction in Victorian America (Princeton, NJ: Princeton University Press, 1997); James Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800–1900 (New York: Oxford University Press, 1979); and Leigh Ann Wheeler, Against Obscenity: Reform and the Politics of Womanhood in America, 1873–1935 (Baltimore: Johns Hopkins University Press, 2004).
(4.) Lawrence M. Friedman, Crime and Punishment in American History (New York: Basic Books, 1993); Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1985); and Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 (Berkeley: University of California Press, 1997).
(5.) Jennifer Nelson, Women of Color and the Reproductive Rights Movement (New York: New York University Press, 2003).
(6.) Sara Dubow, Ourselves Unborn: A History of the Fetus in Modern America (New York: Oxford University Press, 2010), 64–65.
(7.) Leslie J. Reagan, Dangerous Pregnancies: Mothers, Disabilities, and Abortion in Modern America (Berkeley: University of California Press, 2010).
(8.) Donald T. Critchlow, Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America (New York: Oxford University Press, 1999).
(9.) Daniel K. Williams, Defenders of the Unborn: The Pro-life Movement Before Roe v. Wade (New York: Oxford University Press, 2015).
(10.) Linda Greenhouse and Reva B. Siegel, “Before and After Roe v. Wade: New Questions about Backlash,” Yale Law Journal 120 (2011): 2034–2086.
(11.) Poe v. Ullman, 367 U.S. 497 (1961).
(12.) Griswold v. Connecticut, 381 U.S. 479 (1965).
(13.) United States v. Vuitch, 402 U.S. 62 (1971).
(14.) Eisenstadt v. Baird, 405 U.S. 438 (1972).
(15.) David Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (Berkeley: University of California Press, 1998).
(16.) Roe v. Wade, 410 U.S. 113 (1973).
(17.) Doe v. Bolton, 410 U.S. 179 (1973).
(18.) Laura Kalman, The Strange Career of Legal Liberalism (New Haven, CT: Yale University Press, 1998).
(19.) Johanna Schoen, Abortion After Roe: Abortion After Legalization (Chapel Hill: North Carolina Press, 2015).
(20.) Daniel K. Williams, God’s Own Party: The Making of the Christian Right (New York: Oxford University Press, 2010).
(21.) City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).
(22.) Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).
(23.) Webster v. Reproductive Health Services, 492 U.S. 490 (1989).
(24.) David Cohen and Krysten Connen, Living in the Crosshairs: The Untold Stories of Antiabortion Terrorism (New York: Oxford University Press, 2015).
(25.) William Saletan, Bearing Right: How Conservatives Won the Abortion War (Berkeley: University of California Press, 2004).
(26.) Casey, 505 U.S. at 852.
(27.) Casey, 505 U.S. at 852.
(28.) Casey, 505 U.S. at 877.
(29.) Casey, 505 U.S. at 882.
(30.) Stenberg v. Carhart, 530 U.S. 914 (2000).
(31.) Gonzales v. Carhart, 550 U.S. 124 (2007).
(32.) Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (New York: Simon and Schuster, 1979).
(33.) Linda Gordon, Women’s Body, Women’s Right: A History of Birth Control in America (New York: Grossman/Viking, 1976).
(34.) Mohr, Abortion in America.
(35.) Kristin Luker, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984).
(36.) Rickie Solinger, Wake Up, Little Susie: Single Pregnancy and Race Before Roe v. Wade (New York: Kirkus, 1992).
(37.) Marvin Olasky, Abortion Rites: A Social History of Abortion in America (Wheaton, IL: Crossway, 1992)
(38.) Reagan, When Abortion Was a Crime.
(39.) Critchlow, Intended Consequences.
(40.) Garrow, Liberty and Sexuality.
(41.) Reva B. Siegel, “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection,” Stanford Law Review 44 (1992): 261–381.
(42.) Linda Greenhouse and Reva B. Siegel, “Before (and After) Roe v. Wade: New Questions on Backlash,” Yale Law Journal 120 (2011): 2052–2071; Before Roe v. Wade: Voices That Shaped the Abortion Debate Before The Supreme Court’s Ruling, eds. Linda Greenhouse and Reva B. Siegel, 2d ed. (New Haven, CT: Yale Law Library, 2012).
(43.) Simone M. Caron, Who Chooses?: American Reproductive History Since 1850 (Gainesville: University Press of Florida, 2008), 150–151, 153–155, 160–163; and Matthew Connelly, Fatal Misconception: The Struggle to Control World Population (Cambridge, MA: Harvard University Press, 2008).
(44.) Sandra Morgen, Into Our Own Hands: The Women’s Health Movement in the United States, 1969–1990 (Rutgers: Rutgers University Press, 2002); Jennifer Nelson, More than Medicine: A History of the Women’s Health Movement (New York: New York University Press, 2015); and Jennifer Nelson, Women of Color and the Reproductive Rights Movement (New York: New York University Press, 2003).
(45.) Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (New York: Times Books, 2006).
(46.) Sara Dubow, Ourselves Unborn: A History of the Fetus in Modern America (New York: Oxford University Press, 2010); and Daniel K. Williams, Defenders of the Unborn: The Pro-life Movement Before Roe v. Wade (New York: Oxford University Press, 2015).
(47.) Deborah Dinner, “The Costs of Reproduction: History and the Legal Construction of Sex Equality,” Harvard Civil Rights-Civil Liberties Review 46 (2011): 417–495; Leigh Ann Wheeler, How Sex Became a Civil Liberty (New York: Oxford, 2014); and Mary Ziegler, After Roe: The Lost History of the Abortion Debate (Cambridge, MA: Harvard University Press, 2015).
(48.) Johanna Schoen, Abortion After Roe: Abortion After Legalization (Chapel Hill: University of North Carolina Press, 2015).