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Roe v. Wade and Supreme Court Abortion Cases [1]

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Date: 2025-04

Roe v. Wade

The road to Roe

Abortion was illegal in most states in the 1960s, often with no exceptions for cases of rape or threat to life. A pair of high-profile crises, however, shined a spotlight on the impact of these restrictions.

Beginning in the late 1950s, thousands of babies were born with severe birth defects after their mothers took the morning sickness drug thalidomide while pregnant. The most well-known case was that of Sherri Finkbine, a host of the children’s television program Romper Room, who was forced to travel to Sweden to obtain an abortion. A Gallup poll showed, perhaps surprisingly given the legal backdrop, that a majority of Americans supported Finkbine’s decision.

Shortly after the thalidomide scandal, an epidemic of rubella, or German measles, swept across the country. Babies that survived rubella in utero were often born with a wide range of disabilities such as deafness, heart defects, and liver damage. (A rubella vaccine didn’t become available until 1971.)

It was in this environment of maternal risk that high-profile doctors like Alan Guttmacher began to argue publicly that abortion should be treated like other medical procedures — as a decision to be made between physician and patient.

Griswold v. Connecticut (1965)

While thalidomide and rubella impacted public perspectives on abortion, a series of cases built the foundation for the coming revolution in abortion law. The first involved the right to contraception, and the story begins in the 19th century.

In 1879, Connecticut senator P.T. Barnum (yes, that P.T. Barnum) introduced a bill barring not only contraceptives but also the distribution of information relating to them. The Barnum Act was still on the books in Connecticut in 1960, when the Food and Drug Administration approved the first oral contraceptive. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, was fined $100 for violating the law. Her appeal went all the way to the Supreme Court.

In Griswold v. Connecticut, a seven-justice majority struck down the Barnum Act. Justice William O. Douglas explained that the Bill of Rights implies a right to privacy because when viewed as a coherent whole, it focuses on limiting government intrusions. The Griswold majority held that the government cannot prevent married couples from accessing contraception. (At the time, the justices did not extend the right to unmarried people.) Griswold’s contention that the Constitution creates a zone of privacy into which the government cannot enter paved the way for Roe, among other landmark decisions.

Eisenstadt v. Baird (1972)

The road from Griswold to Roe was not perfectly straight. Two years after Griswold, reproductive rights activist William Baird offered contraceptives to an unmarried woman after a lecture on contraception to students at Boston University. He was sentenced to three months in prison.

Like Estelle Griswold, Baird appealed his conviction to the Supreme Court. In Eisenstadt v. Baird, the Justices extended Griswold. Justice William Brennan, writing for the six-justice majority, explained that the 14th Amendment guarantees equal protection under the law. There was no reason to treat married and unmarried people differently with regard to contraception.

United States v. Vuitch (1971)

Over the course of nine years, Washington, DC,–based physician Milan Vuitch was arrested 16 times for performing abortions, which had been illegal in the district since 1901 except “as necessary for the preservation of the mother’s life or health.”

Vuitch appealed his eventual conviction, arguing in part that the exception for “health” was unconstitutionally vague. The Supreme Court disagreed in United States v. Vuitch. Taking a broad view of the word “health,” the justices ruled that abortion was legal in the district whenever necessary to protect mental or physical health.

The significance of Vuitch, however, was to be short-lived. Roe v. Wade was already wending its way through the courts by the time of the decision. The day after they decided Vuitch, the justices voted to hear Roe.

The parties to Roe

Texan Norma McCorvey became pregnant for the third time in 1969. Struggling with drug and alcohol use, she previously relinquished responsibility for her first two children. She decided that she did not want to continue the pregnancy.

Texas law, however, allowed abortion only to save the patient’s life. With McCorvey six months pregnant, Texas lawyers Linda Coffee and Sarah Weddington filed a suit on her behalf in federal court under the pseudonym Jane Roe.

Henry Wade was a legendary and controversial district attorney with an impressive conviction rate, most famous for prosecuting Jack Ruby, who killed JFK’s assassin, Lee Harvey Oswald. Wade was, however, an odd foil for pro-choice activists. He did not aggressively prosecute illegal abortions and said little about them.

The lower court

A three-judge panel of the U.S. District Court for the Northern District of Texas struck down Texas’s abortion ban, finding it overbroad and locating the right to reproductive choice in the 9th and 14th Amendments. Citing Griswold, the court noted that the Constitution guarantees “the right of choice over events which, by their character and consequences, bear in a fundamental manner on the privacy of individuals.” While the federal court declared the Texas law unconstitutional, it declined to immediately block its enforcement, putting Roe v. Wade on a fast track to the Supreme Court.

Norma McCorvey gave birth to a girl, Shelley Lynn, on June 2, 1970, fifteen days before the federal district court issued its ruling. The baby was adopted when she was three days old. Her identity was not known to the public until 2021.

The Roe v. Wade oral argument

Sarah Weddington, who was just 26 years old when she stood before the justices of the Supreme Court on December 13, 1971, built her case for the constitutional right to abortion around the 9th and 14th Amendments, arguing that “meaningful” liberty must include the right to terminate an unwanted pregnancy.

Although the justices were largely receptive to Weddington’s points, Justice Byron White demanded to know whether the right to abortion extended right up to the moment of birth. After some hesitation, Weddington answered yes. Legal personhood began at birth, Weddington claimed. Until that moment, there should be an unfettered constitutional right to abortion.

After Weddington sat down, Texas Assistant Attorney General Jay Floyd stood to defend the state law. He began, inexplicably, with a sexist joke: “It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.” The bafflingly inappropriate comment was followed by three seconds of dead silence.

There was, however, one moment of wit in the argument. When Floyd argued that a woman who becomes pregnant has already made her choice, Justice Potter Stewart shot back, “Maybe she makes a choice when she decides to live in Texas!” The retort brought roars of laughter from the gallery.

Of particular note is how little the oral argument focused on the history of abortion laws during the founding or the post–Civil War era when the 14th Amendment was ratified. The justices focused instead on the biological realities of abortion and the text of the Constitution itself.

Also interesting: Justice Harry Blackmun, who would write the majority opinion in Roe v. Wade, spoke only twice during the oral argument. By contrast, Justice Thurgood Marshall spoke more than 10 times, Justices White and William Brennan more than 20 times, and Justice Stewart more than 30. (Perhaps this was because Blackmun was initially inclined to write a much more restrained opinion than he ultimately did.)

The Roe v. Wade opinion

The Supreme Court handed down its decision on January 22, 1973. Seven of the nine justices agreed that the Due Process Clause of the 14th Amendment — which says that no state shall “deprive any person of life, liberty, or property, without due process of law” — implies a right to privacy. The majority seized upon Weddington’s definition of liberty, citing a series of prior cases indicating that the term “liberty” must be interpreted broadly in a free society.

The justices did, however, recognize that the state could place some limits on abortion if necessary to further a compelling state interest. The state’s ability to regulate increased as a pregnancy progressed. And after a fetus reached viability, the state could prohibit abortion, except when necessary to protect health or life.

Justices William Rehnquist and White dissented. Rehnquist argued that privacy, in the constitutional sense of illegal search and seizure, has nothing to do with abortion. In his view, since abortion bans implicate no fundamental rights, they must only have some rational basis, such as protecting a fetus. Foreshadowing the Dobbs decision in 2022, Rehnquist also declared that the only recognizable rights not explicitly listed in the Constitution are those with deep roots in the American legal tradition.

Doe v. Bolton (1973)

On the same day the Supreme Court decided Roe, it decided Doe v. Bolton, which challenged Georgia’s abortion ban. The Georgia law limited abortion to cases of documented rape, a severely disabled fetus, or a threat to life. Before the procedure, it was necessary to obtain the approval of a doctor, two additional consulting physicians, and a hospital committee. The law also permitted relatives to challenge the abortion decision. It was, in short, a burdensome process.

In another 7–2 vote, with Blackmun again writing for the majority, the Court ruled that although the rights identified in Roe are not absolute, Georgia’s restrictions violated the constitutional right to abortion. He noted that the law established hurdles that were far higher than those that had to be overcome for other surgical procedures.

White and Rehnquist again dissented.

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[1] Url: https://www.brennancenter.org/our-work/research-reports/roe-v-wade-and-supreme-court-abortion-cases

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