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ROE V. WADE

ROE V. WADE. A Texas case stands at the center of years of national debate about the issue of abortion. That case, Roe v. Wade, was decided by the United States Supreme Court on January 22, 1973. The ruling basically held that women have a right, under the Fourteenth Amendment of the United States Constitution, to decide whether to continue or to terminate a pregnancy. It overturned a Texas law making all abortions (except those performed to save the life of the woman) illegal, and by implication overturned antiabortion statutes in most other states. The roots of the case lie in Austin, Texas, during the late 1960s. A group of local volunteers were telling women about birth control and how to avoid pregnancy. Their action followed a 1965 Supreme Court case, Griswold v. Connecticut, which overturned state laws making criminal the use of contraception. However, some women who approached them were already pregnant and wanted to know where and how to get an abortion. The volunteers originally wanted to know whether they could legally provide that information, including information about illegal abortion providers in Texas and Mexico, or whether doing so would subject them to possible prosecution as accomplices to the crime of abortion. In March 1970 a suit was filed in Dallas in a three-judge federal district court on behalf of a pregnant woman known as Jane Roe (later identified as Norma McCorvey) and all other women "who were or might become pregnant and want to consider all options." The suit was against Henry Wade, the district attorney at Dallas, an official responsible for enforcing criminal laws, including antiabortion statutes. The suit asked that the Texas law be declared unconstitutional and that an injunction be issued telling Wade to stop prosecuting doctors who performed abortions. The three-judge court declared that the "freedom to choose in the matter of abortions has been accorded the status of a `fundamental' right in every case the court had examined, and that the burden is on the defendant to demonstrate to the satisfaction of the court that the infringement [by the Texas abortion laws] is necessary to support a compelling state interest." Although this burden was not met and the court declared the Texas law unconstitutional, the court still refused to issue an injunction against Wade. The following day Wade announced that he would continue to prosecute physicians who provided abortion services. Both sides appealed, and eventually the Supreme Court agreed to hear the case.

The Supreme Court's 1973 decision held that there was a constitutional right of privacy. Seven justices joined the majority opinion written by Justice Harry Blackmun; two justices dissented. The opinion written by Justice Blackmun said in part:

The constitution does not explicitly mention any right of privacy. In a line of decisions, however...the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution....These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty"...are included in this guarantee of personal privacy.

They also make it clear that the right has some extension to activities relating to marriage...procreation... contraception...family relationships...and child rearing and education.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent.

Justices William Rehnquist and Byron White, the two dissenting justices, asserted that there was no right of personal privacy such as that recognized by the majority. The dissent said in part:

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Even today, as society's views on abortion are changing, the very existence of the debate is evidence that the right to an abortion is not so universally accepted as the appellant would have us believe.

Although the majority decision declared the Texas law to be unconstitutional, it indicated in dictum, or advisory language, that states could pass some restrictions based on a "trimester" approach to pregnancy. Referring to a trimester as about one-third of a pregnancy, the court wrote that in the first trimester the only adequate state interest was in ensuring that only licensed medical personnel perform abortions. In the second trimester, because of the increased danger to the woman posed by abortion, the court suggested that the state's interest would support regulation to protect her health. Regarding the third trimester, the court referred to the increased danger to the woman and the increased potential for life of the fetus, and said that a state could then prohibit abortion except for very limited reasons, such as to save the woman's life.

Instead of ending the legal and public debate about abortion, however, the Roe decision became the focal point for increased turmoil. Opponents of abortion and its legality increased in numbers and organized strength. It became an issue in many political campaigns. The balance of votes on the Supreme Court began to shift as first President Ronald Reagan and then President George Bush, each of whom was elected on an antiabortion platform, had an opportunity to appoint members of that court. In the decade of the 1980s, five cases that in essence asked the court to overturn the Roe decision were presented to the Supreme Court. The court consistently refused, but it became more friendly to state regulation of abortion. A 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, was the culmination of a series of cases involving state laws restricting or regulating access to abortion. In the Casey decision, the court upheld several provisions of the Pennsylvania Abortion Control Act of 1982, including requirements that informed consent by a woman seeking an abortion be given prior to the abortion procedure; that physicians observe a twenty-four-hour waiting period before performing an abortion; that specified information be given to the woman twenty-four hours before the procedure; and that minors obtain consent of one parent or permission from a judge (a judicial bypass) before having an abortion.

In the Roe decision, the court placed the burden of proof on the state to show that it had a compelling reason to regulate abortion. By the 1990s the court had shifted the burden of proof to plaintiffs who challenged state restrictions, requiring each to demonstrate that such restrictions were an "undue burden" on women. Given that burden of proof, far fewer plaintiffs now win suits against state abortion restrictions. By the 1992 presidential campaign, four of the nine Supreme Court justices indicated a willingness to overturn Roe, and five supported the Roe decision. Justice Blackmun, who wrote the 1973 majority opinion, had written, "I cannot last forever," a phrase read to signal his intent to retire. Many observers believed that if President George Bush had been reelected, he would have had an opportunity to add a fifth vote against Roe to the court, making it likely that the case would be overturned when a appropriate case reached the court. Candidate William J. Clinton said he was in favor of Roe. Observers assumed that he would appoint prochoice justices if he had an opportunity to do so. By 1995, after Clinton became president and made two Supreme Court appointments, the vote count on the court was thought to be three justices in favor of overturning Roe and also state restrictions, three justices unwilling to overturn it but willing to weaken it and approve state restrictions, and three favoring the original doctrine. The future of the case depends in part on retirements from and new appointments to the Supreme Court.

Texas, unlike a variety of other states that have passed laws regulating or restricting abortion since 1973, has passed few laws in that regard. Only physicians may legally perform abortions in Texas, and there is some Texas Department of Health oversight of clinics. Third-trimester abortions are illegal unless an abortion is necessary to save the life of the woman or because medical testing has revealed severe or irreversible abnormalities of the fetus. In-state battles between those who support and those who oppose the legality of abortion remain centered around the Texas legislature and continue to be fierce. In the 1995 legislative session, about twenty to twenty-five bills involving abortion surfaced, many related to tightening regulation of abortion clinics, giving legal status to fetuses, parental notification for minors seeking abortion, and other measures. The House of Representatives passed many such bills, but the Senate refused to do so. A Texas case has been at the epicenter of the abortion issue for twenty-three years, and it is clear that the debate will continue for years in public discussions, in politics, and in court cases.

Sarah Weddington

Citation

The following, adapted from the Chicago Manual of Style, 15th edition, is the preferred citation for this article.

Sarah Weddington, "ROE V. WADE," Handbook of Texas Online (http://www.tshaonline.org/handbook/online/articles/jrr02), accessed July 24, 2014. Uploaded on June 15, 2010. Modified on February 11, 2013. Published by the Texas State Historical Association.