On the 40th anniversary, 63% of Americans stated that they do not want to see Roe v. Wade overturned. With the overwhelming majority holding firmly in support of abortion rights for the second decade in a row, it appears that the landmark case enshrining abortion as a fundamental right is here to stay.
However, while the very basic existence of the right to an abortion may be more or less settled, the debate over the grey areas of abortion laws and regulations is sure to continue. Here is a quick primer going over the history of abortion law, from its introduction into the American legal system to the modern constitutional standard.
Abortion Before Roe
In its founding years, the United States imported most of its legal system and common law from the British Empire, with lawyers and judges educated in England being the first to establish the rule of law in the newly founded United States. Yet while America imported most of its legal tradition from its parent Empire, abortion laws were not among those which we inherited.
The first prohibition on abortions wasn’t passed until 1821, with Connecticut being the first to introduce an absolute ban on the practice. By the end of the century, every state in the country (which, in 1900, was 45 states) had laws banning abortion. Receiving or providing an abortion was considered a common law crime in many states, with explicit rules and restrictions outlined by statute in all others.
By the time Roe v. Wade made its way to the Supreme Court, abortion was illegal in all cases in 30 states, legal in certain circumstances (rape, incest, danger to health) in 16 states, and only totally legal in four (Alaska, Hawaii, New York, and Washington).
Laying the Foundation: A Right to Privacy
Eight years before Roe was decided, the Supreme Court heard arguments in another case that would lay the groundwork for the coming abortion rights decisions. In Griswold v. Connecticut, the Supreme Court ruled that a Connecticut law prohibiting the use of contraceptives violated the constitutionally protected “right to privacy,” laying the foundation for the constitutional right under which Roe would eventually find shelter. But the arguments over what constituted a “right to privacy” were far from settled.
The right to privacy that many of us hold as central to our civil liberties today is not one that is found in the Constitution, at least not explicitly. The word “privacy” never appears in the Constitution, nor is the right to the ambiguous concept of privacy ever articulated or enumerated. Instead, the right to privacy as we know it today is founded on legal reasoning extrapolated from the protections found within the Constitution’s language.
In Griswold, the Supreme Court concluded that while there was no explicit mention of privacy in the Constitution, the privacy rights implied in the Bill of Rights and subsequent amendments demonstrated that the Founders intended a general right to privacy to be recognized and respected by the state. For example, the Court reasoned that the First Amendment protected the privacy of personal faith, the Fourth Amendment protected the privacy of one’s person and belongings, and so on and so forth.
Using this inductive reasoning, the Court concluded that the right to privacy was found in the “penumbras” and “emanations” of the Constitution and that it protected a “right to marital privacy” that unquestionably made the decision to use or forego contraception as a private one.
Roe v. Wade and the “Trimester Framework”
In Roe v. Wade, the Court was asked to address the question of whether the right to an abortion was similarly covered by the still vaguely defined right to privacy, and if so, to what extent.
The trial court that heard the case initially had ruled in favor of Roe. It reasoned that the Ninth Amendment, which states that the enumeration of certain rights in the Constitution “shall not be construed to deny or disparage others retained by the people,” protected the right to have an abortion as a right retained by the people and beyond the reach of government. Although the trial court ruled in favor of Roe’s right to have an abortion, it declined to stop the Texas law being challenged from being enforced against others. The case was subsequently appealed to the United States Supreme Court.
The Supreme Court issued its decision in Roe v. Wade on January 22, 1973 in which the justices ruled 7-2 that abortion was a fundamental right protected by the United States Constitution. Justice Harry Blackmun, writing for the majority, declared that the right of privacy protected by the Fourteenth Amendment and previously outlined in Griswold “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
While the Court recognized that a woman’s right to choose was protected by the Constitution, it also recognized the competing state interests of protecting a woman’s health and the “potentiality of human life.” The solution the Court settled on was the establishment of a legal balancing test that weighed the privacy interests of the mother against the interests of the state.
The Court based its test on the trimester framework of pregnancy. During the first trimester of pregnancy, when an abortion was considered a safer procedure than childbirth, the Court reasoned that the decision on whether to abort must be left exclusively to the mother. Therefore, any state or federal regulation that interfered with the right to have an abortion would be presumptively unconstitutional. For the second trimester, the Court ruled that the state could regulate abortion only in order to protect the woman’s health. During the last trimester, and after the fetus was considered “viable” (could survive on its own outside the mother’s womb), state laws were permitted to restrict and prohibit abortion except when an abortion would be necessary to preserve the health of the mother.
This trimester framework stood as the national benchmark for abortion laws for two decades following Roe, until a 1992 case out of Pennsylvania presented to a conservative Supreme Court threatened to reverse Roe once and for all.
Justice Kennedy’s Switcheroo
Planned Parenthood v. Casey was a case that challenged a 1982 Pennsylvania law that instituted a number of hurdles to receiving an abortion. The law required that (1) doctors inform women about the detriments to health in abortion procedures, that (2) women inform their husbands before receiving an abortion, that (3) parents be notified if a minor is seeking an abortion, and that (4) all women seeking an abortion must wait 24hours after the initial appointment before having the procedure.
The trial court found all of the law’s provisions unconstitutional and entered a permanent injunction (ban) against their enforcement. On appeal, the federal appellate court reversed the trial court, declaring all of the restrictions constitutional under Roe save for the spousal notification clause, which it too rejected. The case was then appealed to the Supreme Court.
Casey dominated press headlines in the weeks leading up to its argument due primarily to the fact that two staunch liberals, Justices William Brennan and Thurgood Marshall (who both voted in favor of Roe), had been replaced by Bush-appointed Justices David Souter and Clarence Thomas. This resulted in a bench full of eight Republican appointees. Conservative groups and pro-life advocates were sure that the overturning of Roe v. Wade was little more than an inevitability.
After the case was argued, the justices gathered in conference to vote on the outcome of the case. Breaking with expectations, newly appointed Justice David Souter broke with his conservative peers and joined Justices O’Connor, Stevens, and Blackmun in voting to strike down the entirety of the Pennsylvania law. On the other side, Chief Justice Rehnquist was joined by Justices White, Scalia, Kennedy, and Thomas, who all voted to uphold the Pennsylvania law in its entirety, paving the way for a potential reversal of Roe v. Wade.
However, before the written opinions were finalized, Justice Kennedy famously changed his mind, switching to join the justices voting to strike down the law, turning the previous majority into a minority.
The final opinion in Planned Parenthood v. Casey struck down Pennsylvania’s law as unconstitutional by a 5-4 margin. The plurality opinion in Casey, authored jointly by Justices O’Connor, Kennedy, and Souter, stated that the Court was re-affirming “the essential holding” of Roe that “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Most importantly, the plurality opinion overturned the “trimester framework” established in Roe to outline a different test that accommodated for the advancement of medical technology that made the “viability” of the fetus far different than at the time Roe was decided.
Rather than set absolutes around trimester figures, the plurality articulated an “undue burden” standard, which mandated that courts determine whether the abortion regulations at issue placed an undue burden on the person seeking the abortion. If they did, they were presumed unconstitutional. If not, they were presumed constitutional. Where the line is drawn on what constitutes an “undue burden” remains the topic of much debate in legal and political circles today.
40 years hence, the legacy of Roe v. Wade will always be that abortion rights, at their most basic level, are protected as fundamental rights under the United State Constitution.
How far that protection extends and what is considered a permissible infringement on that right will likely remain the subject of debate and disagreement for another 40 years, at least. But whether you are pro-life or pro-choice, the effects of the decision in Roe transformed our understanding of abortion, law, and the Constitution and changed American history forever.