Planned Parenthood of Amarillo & the Texas Panhandle

Roe v. Wade:  Its History and Impact

Supreme Court Finds Right to Choose Abortion

On January 22, 1973, the U.S. Supreme Court announced its decision in Roe v. Wade, a challenge to a Texas statute that made it a crime to perform an abortion unless a woman’s life was at stake.  The case had been filed by “Jane Roe,” an unmarried woman who wanted to safely and legally end her pregnancy.  Siding with Roe, the court struck down the Texas law.  In its ruling, the court recognized for the first time that the constitutional right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (Roe v. Wade, 1973).

Roe has come to be known as the case that legalized abortion nationwide.  At the time the decision was handed down, nearly all states outlawed abortion except to save a woman’s life or for limited reasons such as preserving the woman’s health, instances of rape, incest, or fetal anomaly.  Roe rendered these laws unconstitutional, making abortion services safer and more accessible to women throughout the country. The decision also set a legal precedent that affected more than 20 subsequent Supreme Court cases involving restrictions on access to abortion.

Ruling Reflects American Traditions, Changing Times

To reach its decision in Roe, the Supreme Court drew on decades of case law that established that the government cannot interfere with certain personal decisions about procreation, marriage, and other aspects of family life.  In Griswold v. Connecticut (1965), an appeal of the criminal conviction of the executive director of the Planned Parenthood League of Connecticut for providing contraceptives to married couples, the Supreme Court found that a state statute making it a crime to use birth control violated married couples’ right to privacy.  Seven years later, the Justices found that this right also applied to single people (Eisenstadt v. Baird, 1972).  Together, these cases set the stage for Roe.

Roe was also a reflection of the changing times.  By the late 1960s, a nationwide effort was underway to reform the criminal abortion laws in effect in nearly every state.  Health care providers, women’s rights advocates, clergy members, and the legal community lobbied state legislatures and went to court to overturn statutes that had been in place since before the turn of the century.  Many of these laws dated back to the mid-1800s, when state legislatures moved to ban abortion despite this nation’s history since colonial times of allowing abortion prior to “quickening.”  Between 1967 and 1973, four states — Alaska, Hawaii, New York, and Washington — repealed their abortion bans, while 13 others enacted limited reforms (Gold, 1990).  Even before Roe was decided, lawsuits challenging criminal abortion laws had begun to work their way through the courts in more than a dozen states.

A Constitutional Right is Defined

In Roe, the Supreme Court found that a woman’s right to decide whether to become a parent deserves the highest level of constitutional protection.  The court also recognized that the right to privacy is not absolute and that a state has valid interests in safeguarding maternal health and protecting potential life.  According to the court, a state’s interest in potential maternal health is not compelling until the second trimester of pregnancy and its interest in potential life is not “compelling” until viability, the point in pregnancy at which there is a reasonable possibility for the sustained survival of the fetus outside the womb.  A state may — but is not required to — prohibit abortion after viability, except when it is necessary to protect a woman’s life or health.

The Lives and Health of Women and Families Improve

In 1965, abortion was so unsafe that 17 percent of all deaths due to pregnancy and childbirth were the result of illegal abortion (Gold, 1990).  Today, abortion is one of the most commonly performed clinical procedures, and the current death rate from abortion at all stages of gestation is 0.6 per 100,000 procedures. This is eleven times safer than carrying a pregnancy to term and nearly twice as safe as a penicillin injection (AGI, 2004; Rock & Jones, 2003; Paul et al., 1999; Gold, 1990).

The right to make childbearing decisions has also enabled women to pursue educational and employment opportunities that were often unthinkable a generation ago.  The Supreme Court noted in 1992 that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives” (Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992).  Justice Harry Blackmun, the author of Roe, called the decision “a step that had to be taken as we go down the road toward the full emancipation of women” (Greenhouse, 1994).  

Constant Attacks Undermine the Right to Choose Abortion

Immediately after Roe was decided, abortion opponents urged state and federal lawmakers to pass anti-abortion laws.  Over the next three decades, the Supreme Court was repeatedly called upon to decide whether a wide range of abortion statutes violated a woman’s right to privacy.  While many of these restrictions were found unconstitutional, the court opened the door to limits on the ability of low-income women and young women to choose abortion in a series of cases beginning in the mid-1970s.  State and federal bans on funding for abortion services were upheld as were requirements that young women obtain the consent of or notify their parents prior to an abortion.  Two examples of these restrictive decisions are Harris v. McRae, 1980, and Hodgson v. Minnesota, 1990.)

By 1992, changes in the make-up of the Supreme Court led many to believe that it might overturn Roe when it decided a challenge to several Pennsylvania abortion restrictions.  However, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the court reaffirmed the core holding of Roe  — that a woman has a constitutional right to choose abortion before viability and thereafter if her life or health is at stake. Nevertheless, the court made it more difficult for women to succeed in challenging laws that were less than absolute prohibitions on abortion. The court ruled that in order to succeed in a constitutional challenge, a law must be shown to have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.  Under this test many abortion restrictions have been upheld, including requirements that require women to make multiple trips to an abortion provider and to suffer an enforced delay prior to obtaining an abortion.

Today the right to abortion is again threatened.  The court’s latest decision, Stenberg v. Carhart (2000), struck down, by a five to four margin, a law that restricted certain abortion procedures without an exception to protect the health of the woman. If one of the five Justices in the majority (three of whom will be 70 or more in 2005) should step down, a key holding of Roe — that a woman's health is always paramount, and that no abortion restriction may endanger a woman's health — could be in danger.

If more than one Justice steps down, Roe itself could be overruled.  Much depends on the president who appoints and the Senate that will confirm their replacements. In January 2005, with an anti-choice president and an anti-choice majority in place in the Senate, Roe could be in the gravest danger.