Roe v Wade, 410 U.S. 113 (1973) 

Introduction

The case of Roe v Wade is perhaps one of the most famous US Supreme Court decisions to date. Decided in the early 70s, the decision provides women with a constitutionally protected right to seek abortion. Despite having been settled over fifty years ago it remains controversial due to its position as the keystone of American abortion rights, and is often called upon in response to various states’ attempts to restrict abortion access.[1] The decision is therefore of importance not only in the context of abortion debates, but also in discussions regarding state rights and the politicisation of the judiciary.

Case Timeline

19^th Century – Texas, along with the vast majority of other states, formally illegalises abortion and a variety of associated acts.[2]

1969 – 21-year-old Norma McCorvey discovers she is pregnant and seeks to obtain an abortion. Texas law permits abortion only where the life of the pregnant woman is at risk, forcing McCorvey to seek illegal out an illegal procedure. She is unsuccessful and eventually brings a case against the state of Texas. She is given the pseudonym ‘Roe’ in order to protect her identity.[3]

1970 – The case is filed in District Court against defendant District Attorney Henry Wade. The case is decided in favour of the Roe. The defendant declares his intention to ignore the ruling and continue to prosecute those providing abortion services. In the meanwhile, Roe gives birth whilst awaiting the verdict of the case.[4] Both parties seek to appeal to the Supreme Court.

1971 – The Supreme Court hears the case after delaying in order to first hear similar case United States v Vuitch.[5] The District Court’s decision in favour of Roe is upheld.

1972 – The Court decides to hear a reargument of the case.

1973 – Following the reargument, the Court affirms the original decision in a 7-2 split.

2003-2004 – Roe, following a conversion to Catholicism, files a motion to have the case overturned. She is unsuccessful.[6]

Issue

The primary question facing the court was whether the Constitution protected the right of a woman to obtain an abortion, therefore overturning Texas’ abortion laws and any similar prohibitions.

Ruling

The court answered the above question positively, on the basis that an individual holds a right to privacy, as per the 14^th Amendment right to personal liberty and the 9^th Amendment right to the protection of unenumerated rights.[7] Several reasons were given by the court for regarding the right to privacy to confer a right to access abortion. It was held that the individual had a private right to avoid the physical and mental stresses of both caring for and bearing an unwanted child, as well as a right to avoid the restriction on personal choice associated with childcare.[8] Nonetheless, the court did note that the right to abortion was not absolute, and that the right was balanced against other considerations, such as state interest in protecting pre-natal life. This interest was held to increase, depending on which trimester the pregnancy was in. In particular, it was held that third-trimester abortions might be proscribed completely by state legislatures, whilst second-trimester abortion might only be restricted for reasons of maternal health.[9]

Footnotes

[1] Alice Miranda Ollstein, Rachel Roubein, ‘Here come the Roe v. Wade challenges’ (Politico, 11 August 2018) Available at: https://www.politico.com/story/2018/11/08/abortion-roe-v-wade-abortion-court-cases-supreme-court-944166 [Accessed 17 April 2019]

[2] Paul Benjamin Linton, ‘Overruling Roe v Wade: the Implications for Women and the Law’ (2017) 27 Life and Learning 161-183 171

[3] Merle H Weiner, ‘Roe v Wade Case (US)’ (Oxford Constitutions, 2015) Available at: http://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e564?print=pdf [Accessed 17 April 2019] Para. 11

[4] Ibid. at para. 14.

[5] United States v. Vuitch, 402 U.S. 62 (1971)

[6] Michael Carson, ‘Norma McCorvey obituary’ (The Guardian, 19 February 2017) Available at: https://www.theguardian.com/us-news/2017/feb/19/norma-mccorvey-obituary [Accessed 17 April 2019]

[7] Roe v Wade, 410 U.S. 113 (1973) at 153.

[8] Ibid.

[9] Ibid. at 155.