Guest Essayist: Tony Williams

Before the 1960s, all states had stringent laws banning abortions.  The women’s movement of the 1960s demanded access to abortion as one of the rights of women. Abortion rights activists began working at liberalizing state laws on abortion since it was a state issue in the federal system.  The advocacy successfully chipped away at several laws, though by the time of Roe v. Wade in 1973, roughly forty states still had strong laws against abortion.

In 1965, an important precedent was set in Griswold v. Connecticut that paved the way for the Supreme Court to rule on Roe. In Griswold, the Supreme Court created a “right to privacy” when it ended restrictions on birth control for married couples.  The Court decided that, “Various guarantees creates zones of privacy.  The right of association contained in the penumbra [arc] of the First Amendment is one, as we have seen.” The Court held that the right to privacy was found in the First, Third, Fourth, Fifth, and Ninth Amendments. The Court also used the device of “substantive due process” of the Fourteenth Amendment that read, “No state shall…deprive any person of life, liberty, or property, without due process of law.”  In other words, the Court utilized this clause not for due process on procedural grounds but rather on the idea that it could enunciate certain rights that were protected.

The issue of abortion was highly contentious in American society before Roe v. Wade, and the idea that the Court could settle the debate was perhaps as specious as when Justice Taney thought he resolved the slavery debate to avert Civil War in the Dred Scott case.

The case started when “Jane Roe” (later identified as Norma McCorvey) had an abortion after becoming pregnant in a failed relationship. She challenged a restrictive Texas abortion law and the case eventually made it to the Supreme Court.  Justice Harry Blackmun had once served as the counsel of the Mayo Clinic in Minnesota.  After the case was first argued, Justice Blackmun wrote an unpersuasive draft opinion that failed to move a majority of the justices.  Consequently, Blackmun spent a great deal of time that summer at the Mayo Clinic researching the state of medicine and social science related to abortion. After the case was reargued, Justice Blackmun wrote another opinion that persuaded a majority of the Court.

The decision in Roe v. Wade was issued in early 1973 with a 7-2 majority in favor of a constitutional right to abortion.  Blackmun wrote the majority opinion and asserted, “The Constitution does not explicitly mention any right of privacy. [But] 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 [in Griswold].”

Justice Blackmun created the modern trimester system in Roe v. Wade because the right to privacy was not absolute.  He admitted that there was a human being growing in utero that required at least some protection.  Therefore, the state governments (through the democratic process of making laws in legislatures) had a “compelling interest” at some point in the pregnancy.

The right to abortion was virtually unlimited in the first three months.  Blackmun held that, “With respect to the interest in the health of the mother, the ‘compelling’ point, in the list of present medical knowledge, is at approximately the end of the first trimester.”

The next three months of the pregnancy saw the development of the baby and therefore the state’s interest in protecting the human life increased.  Blackmun argued that during this stage, the fetuses were “viable” because they could live outside the womb.  However, it was balanced against interests of the mother.  “It follows that, from and after this point, a state may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.”  The Court would allow the states greater latitude in regulating abortions during this stage especially for the health of the mother.

Finally, during the last three months, as the pregnancy was nearly brought to term, the state had a very strong compelling interest in protecting the life of the child.  Blackmun reasoned,

“State regulation protective of fetal life after viability thus has both logical and biological justifications.  If the state is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother.”

Therefore, the states could severely restrict abortion after the sixth month except for a few rare cases where the life of the mother was endangered.

Justice Byron White dissented, and argued based upon the Constitution and the principle of federalism:

“I find nothing in the language or history of the Constitution to support the Court’s judgment.  The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.  The upshot is that the people and the legislatures of the fifty states are constitutionally disentitled to weigh [the issue.]”

He called the decision an “exercise of raw judicial power” over an issue that should be “left with the [people].”

Justice Rehnquist also dissented, attacking the use of substantive due process that a conservative court used in Lochner v. New York (1905) to protect liberty of contract. Moreover, Rehnquist argued, “Even today, when 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.”

The Supreme Court legalized abortion in the United States according to the trimester framework, but it did not quell the fierce contention in American society.  If anything, the issue became infinitely more divisive between the pro-life and pro-choice movements.

In 1992, the Supreme Court revisited state restrictions of abortion during the second and third trimesters.  In the Planned Parenthood of Southeastern PA v. Casey (1992), the Court made the incredible statement, “We reject the trimester framework, which we do not consider to be part of the essential holding of Roe.” But, it upheld the right to abortion because “[Overruling] Roe’s central holding would not only reach an unjustifiable result under principles of [precedent], but would seriously weaken the Court’s capacity to exercise judicial power and to function as the Supreme Court of a nation dedicated to the rule of law.”  In other words, the Court cannot break with precedent, even though it had done so before when Brown v. Board of Education (1954) had recently and famously overturned Plessy v. Ferguson (1896), and in several other cases, because it would weaken the legitimacy of the Court.

Roe v. Wade raised many troubling questions for the Supreme Court.  The Court only made the division over abortion more contentious, and it became a central issue and litmus test in the growing culture wars.  The Court also damaged the principle of federalism by overruling a vast majority of democratically-elected state legislatures.  Finally, the Court’s questionable jurisprudence enunciating new rights and using social science rather than the Constitution opened its decision up to fierce criticism.

Roe v. Wade (1973) Supreme Court decision:

Planned Parenthood of Southeastern PA v. Casey (1992) Supreme Court decision:

Tony Williams is a Constituting America Fellow and the author of five books including Washington & Hamilton: The Alliance that Forged America.

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you for another excellent essay that lays out he details of ruling.

    1. I cannot fathom how abortion is a privacy issue.

    2. “there was a human being growing in utero that required at least some protection.” RvW and subsequent rulings have erase any and all protection for an est’d 59 million human beings [circa 2016).

    3. “Wisdom is vindicated by her children.” One of RvW’s children, partial birth abortion, speaks volumes to the wisdom of this ruling.

    4. Another RvW child is the intellectual and judicial suicide SCOTUS committed then and every time another case, as described herein, comes before the court.

    5. Then there is the harvesting baby parts for profit child.

    6. Perhaps Josef Mengele was misunderstood and ahead of his time when he performed medical experiments on children, including amputation of limbs, intentionally infecting one twin with typhus or other diseases, and transfusing the blood of one twin into the other. After an experiment was over, the twins were sometimes killed and their bodies dissected. If one twin died of disease, Mengele killed the other so that comparative post-mortem reports could be prepared. But while they we alive he feed, clothed, and schooled the children better than other children in the camp. His interpretation of providing them “at least some protection.”

    7. If America wants to embrace a new “peculiar institution,” let it do so via a new Constitutional Amendment.

    8. If Lincoln was correct that “every drop of blood drawn with the lash shall be paid by another drawn with the sword,” one cannot wonder and faint at what shall be paid for Roe v. Wade.



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