Nearly five decades on, Roe v. Wade continues to dominate the American consciousness. The original ruling favoured the protection of a woman’s right to have an abortion without a high amount of restriction from the government. This ruling continues to face political pressure and opposition. An investigation into the original case and subsequent landmarks offers a glimpse of the rocky path that lies ahead for securing abortion rights in the US.
In 1970, Norma McCorvey, known by the legal pseudonym ‘Jane Roe’, sought an abortion after falling pregnant with her third child. At the time in Texas, where McCorvey resided, it was illegal to seek a medical abortion unless the life of the mother was in danger. Her attorneys, Sarah Weddington and Linda Coffee, filed a lawsuit on the grounds that Texas’s law on abortion was unconstitutional as it did not uphold the Fourteenth Amendment’s ‘right to privacy’ from the government. The lawsuit followed that, in denying a woman abortion rights, her right to privacy was compromised by the state who were exerting excessive restriction on the woman’s body.
Wedding and Coffee brought the case against the district attorney Henry Wade, on behalf of McCorvey as well as other women in Texas. The US District Court for the Northern District of Texas, made up of a three-judge panel, ruled in favour of McCorvey, and the ruling was appealed to the Supreme Court.
In January 1973, the Supreme Court ruled 7-2 in McCorvey’s favour that the Fourteenth Amendment allowed the right for a pregnant woman to have an abortion without state interference. This was found to be implicit in the language of the Due Process Clause: “Nor shall any state deprive any person of life, liberty, or property, without due process of law.” However, this was not without restriction.
In order to achieve a delicate balance between protecting the woman’s privacy as well as the prenatal life of the foetus, the Court used a trimester framework to establish the level of government control over the abortion. In the initial twelve weeks, or first trimester, the right to privacy overrode the right to protect the foetus, and was a matter between the child bearer and doctor. In the second trimester, the state could ‘regulate procedures’ along the lines of health regulations. By the third trimester, all abortion besides that in which the mother’s life was in danger was prohibited.
The future of Roe was thrown into doubt in 1992 when the landmark case Planned Parenthood v. Casey was considered by the Court. Contained in the suit was a challenge against five provisions of the Pennsylvania Abortion Control Act 1982, which included requirements for a waiting period before a procedure could be performed, notifying a patient’s spouse and consent of parents where a minor was concerned.
Split 5-4, the opinion of the Supreme Court was authored jointly by three Justices: Sandra Day O’Connor, Anthony Kennedy and David Souter. In that opinion, the “central principle” of the Roe decision was upheld, but significant adjustments were made and all but one of the provisions in the Pennsylvania law were ruled constitutional; only spousal notice was struck down.
Protected was Roe’s status under the Due Process Clause of the Fourteenth Amendment, which protected a woman’s right to choose because of the right to privacy guaranteed by it, but the framework for balancing this with the state’s interest was overturned. This was because, though the authors of the opinion may have doubted Roe’s justification, they concluded that stare decisis, the judicial doctrine of precedent’s supremacy, required the upholding of the argument that a foetus could not be constitutionally protected before viability, the time after which it could survive outside the womb. The trimester model was replaced by one of “undue burden”, where any unnecessary obstacle obstructing the exercise of the right would be unconstitutional.
Without doubt, Casey gave the states greater ability to regulate access to abortion. The minority were strongly in favour of overturning the Roe precedent entirely; Justice Scalia called the 1973 decision “plainly wrong”, then- Chief Justice Rehnquist talked of the “error of Roe”.
However, what is striking in the Casey decision, given the situation today, is the presence of moderate Republicans. Jeffrey Toobin points out that in Roe, five Republican-appointed Justices were in the 7-2 majority, while in Casey, every Justice in the majority was appointed by a Republican president. Thirty years on, the rules of the Court, along with those of American politics, have changed.
In May this year, a draft Supreme Court opinion was leaked to Politico in the case of Dobbs v. Jackson Women’s Health Organisation. At issue is a 2018 Mississippi law which bans most abortion procedures after the first 15 weeks of pregnancy, rejected by lower courts on the basis of the undue burden and viability measures from Casey.
In the leaked opinion, Justice Samuel Alito argues that stare decisis does not “compel unending adherence to Roe’s abuse of judicial authority”, proposing that the decision was “egregiously wrong from the start,” with “exceptionally weak” reasoning. If adopted by the majority, it would overrule both Roe and Casey, representing a landmark curtailing of individual rights in America.
After the publication of the draft, Chief Justice John Roberts issued a statement confirming the authenticity of the document, but criticising its release, saying that it was a “betrayal of the confidences of the Court.” An opinion leaking before its formal passing down is highly unusual in the history of the Court, and an investigation is underway within the institution to determine its source.
Whatever the motivations of the opinion’s release into the public domain, the Dobbs decision in its current form would be a moment in Supreme Court history as significant as any other. In the last century, landmark cases were invariably notable for their extension of rights: Brown v. Board of Education overturning the ‘separate but equal’ doctrine, Obergefell v. Hodges ruling same-sex marriage constitutional, Roe itself removing myriad restrictive state abortion laws. Dobbs would do the opposite, potentially marking the beginning of an era which could be as significant as that of the Warren Court. Earl Warren served as the Court’s Chief Justice between 1953 and 1969, leading a liberal golden age which included decisions in Brown, Miranda v. Arizona and Reynolds v. Sims. The Roberts Court has a 6-3 conservative majority, with Amy Coney Barrett’s 2020 confirmation clearly emboldening Justices to challenge long-held precedent.
Nine states still have statutes overruled by Roe which would come back into force were the Dobbs decision to remain as written, while 13 state legislatures have passed ‘trigger laws’ in anticipation of an abortion rights restriction. Texas, for example, has had an abortion ban in place since September 2021 which heavily limits care available for patients.
Uncertain times ahead
Of course, the Dobbs decision is not final; it represents a first draft from a Justice notorious for his uncompromising conservatism, though he is writing for a majority. Of whom that majority consists is unclear, but the conservatives can now easily overcome Roberts’s often cautious behaviour. The Chief Justice is more concerned than his colleagues with the public profile of the Court, and has been known to side with liberals to seek compromise on contentious issues.
The debate around abortion points to wider fractures in American society. If Roe v. Wade were to be overturned, the matter of abortion would fall into state hands. The result? Increasingly divided states of America.
Image: Lorie Shaull via Wikimedia Commons