Malcolm Rivera
Roe v. Wade is a 1973 lawsuit that led to the Supreme Court making a ruling on abortion rights. The case began in 1970 when Jane Roe—a pseudonym to protect the identity of the plaintiff, Norma McCorvey—instituted federal action against Henry Wade, the district attorney of Dallas County, Texas, where Roe resided. The Supreme Court ruled that unduly restrictive state regulation of abortion is unconstitutional, decriminalizing abortion nationwide. However, the government retained the power to regulate or restrict abortion access depending on the stage of pregnancy. In 2022, the Supreme Court reversed its decision, taking back a constitutional protection that stood for decades. This raises the question: Is Roe v. Wade rooted in the Constitution?
| Characteristics | Values |
|---|---|
| Decision | The Supreme Court decided that the right to privacy implied in the 14th Amendment protected abortion as a fundamental right |
| Right to privacy | The right to privacy is not specifically guaranteed anywhere in the Constitution |
| Right to liberty | The Supreme Court recognized that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy |
| Right to abortion | The Supreme Court did not agree that the Constitution guarantees an absolute right to an abortion |
| Right to contraception | The Roe v. Wade decision may also result in the overturning of Griswold's right to contraception |
| Right to same-sex intimacy | The Roe v. Wade decision may also result in the overturning of Lawrence v. Texas (2003), which invalidated laws criminalizing same-sex intimate sexual conduct |
| Right to same-sex marriage | The Roe v. Wade decision may also result in the overturning of Obergefell v. Hodges (2015), which recognized the right to marriage for same-sex couples |
| Right to equality for historically marginalized communities | Alito's insistence on rights being "deeply rooted" in U.S. history revealed a broad discounting of historically marginalized communities, including women, people of color, and gay Americans |
| Right to equality for women | Roe v. Wade supporters believe that the power balance between men and women is unequal, and that issues like access to birth control and political representation affect women's equality |
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What You'll Learn
Roe v. Wade and the right to privacy
Roe v. Wade is a 1973 lawsuit that led to the US Supreme Court making a landmark ruling on abortion rights. The case began in 1970 when "Jane Roe"—a pseudonym to protect the identity of the plaintiff, Norma McCorvey—instituted federal action against Henry Wade, the district attorney of Dallas County, Texas, where Roe resided. A Texas doctor joined Roe's lawsuit, arguing that the state's abortion laws were too vague for doctors to follow.
In Roe v. Wade, the Supreme Court ruled that the right to privacy implied in the 14th Amendment protected abortion as a fundamental right. The Court decided that the right to privacy extends to control over pregnancy. The justices acknowledged that being forced to continue a pregnancy puts a lot at risk. However, the Court did not agree that the Constitution guarantees an absolute right to abortion. Instead, it created a framework to balance the state's interests with privacy rights. This framework allowed for more regulation of abortion as pregnancy advanced but only when that regulation was evidence-based and consistent with how other similar medical procedures were treated.
The Roe v. Wade decision placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and freedom of religion, by conferring on it the highest degree of constitutional protection, known as "strict scrutiny." This legal standard required that infringements on the right be narrowly tailored to serve a compelling government interest. The Supreme Court required the state to justify any interference with the right to access abortion by showing that it had a "compelling interest," and held that no interest was compelling enough to ban abortion before viability. After the point of viability, the state could ban abortion or take other steps to promote its interest in protecting the fetus. However, even after viability, abortion had to be permitted to protect a patient's life and health.
The Roe v. Wade decision was based on the interpretation that the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. The Due Process Clause does not explicitly state that Americans have a right to privacy. However, the Supreme Court has recognized such a right going back to 1891. In the years before Roe v. Wade, there were over one million illegal abortions performed in the US annually. After Roe, that number remained the same, but the procedures were now legal, and the rate of deaths resulting from abortions dropped dramatically.
In 2022, the Supreme Court reversed its decision in Roe v. Wade, taking back a constitutional protection that stood for nearly five decades. The ruling in Dobbs v. Jackson Women's Health Organization marked the first time in history that the Supreme Court had taken away a fundamental right. The Court's decision in Dobbs was based on the argument that the only legitimate unenumerated rights—those not explicitly stated in the Constitution—are those "deeply rooted in the Nation's history and tradition." Abortion, the majority held, is not such a right. Since the Court's decision in Dobbs, more than a dozen states have banned abortion outright, forcing people to travel long distances to access abortion care or to carry pregnancies against their will.
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The Supreme Court's ruling
Roe v. Wade is a 1973 lawsuit that led to the Supreme Court making a ruling on abortion rights. The case began in 1970 when "Jane Roe"—a pseudonym to protect the identity of the plaintiff, Norma McCorvey—instituted federal action against Henry Wade, the district attorney of Dallas County, Texas, where Roe resided. A Texas doctor joined Roe's lawsuit, arguing that the state's abortion laws were too vague for doctors to follow.
In Roe v. Wade, the Supreme Court decided that the right to privacy implied in the 14th Amendment protected abortion as a fundamental right. The Court recognized that the right to decide whether to continue a pregnancy comes within the constitutional protection that the liberty clause in the 14th Amendment affords to privacy. The Court rejected arguments that favored "personhood" for fetuses.
The Roe v. Wade decision also includes a discussion of the different views on when life begins. The Court found that it is not up to the states to decide when life begins, and that the privacy right does not prevent states from putting some regulations on abortion. The Court created a framework to balance the state's interests with privacy rights.
The ruling in Roe v. Wade placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and freedom of religion, by conferring the highest degree of constitutional protection, known as "strict scrutiny." This legal standard required that infringements on the right be narrowly tailored to serve a compelling government interest. Applying a trimester framework, Roe permitted more regulation of abortion as pregnancy advanced but only when that regulation was evidence-based and consistent with how other similar medical procedures were treated.
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The impact of Roe v. Wade
Roe v. Wade is a 1973 lawsuit that led to the Supreme Court making a ruling on abortion rights. The case began in 1970 when "Jane Roe"—a pseudonym to protect the identity of the plaintiff, Norma McCorvey—instituted federal action against Henry Wade, the district attorney of Dallas County, Texas, where Roe resided. A Texas doctor joined Roe's lawsuit, arguing that the state's abortion laws were too vague for doctors to follow.
In Roe v. Wade, the Supreme Court decided that the right to privacy implied in the 14th Amendment protected abortion as a fundamental right. The Court recognized that the right to decide whether to continue a pregnancy comes within the constitutional protection that the liberty clause in the 14th Amendment affords to privacy. This placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and freedom of religion, by conferring it the highest degree of constitutional protection, known as "strict scrutiny".
The Roe decision made state abortion bans unconstitutional and abortion care legal, more accessible, and safer throughout the country. Soon after, abortion opponents pressed state and federal lawmakers to enact a wide range of restrictive abortion laws attempting to reverse the decision. For almost five decades, the Supreme Court honoured Roe's core principle: that the Constitution protects a person's right to make their own private medical decisions, including the decision to have an abortion prior to fetal viability.
On June 24, 2022, the Supreme Court ruled in Dobbs v. Jackson Women's Health Organization, a case involving a challenge to a Mississippi ban on abortion at 15 weeks of pregnancy. The ruling overturned Roe, ending the federal constitutional right to abortion in the United States. As a result, one in three women now live in states where abortion is not accessible, and abortion opponents have been emboldened to push for further restrictions.
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The dissenting opinions
Another argument against the Roe decision, as articulated by former president Ronald Reagan, is that, in the absence of consensus about when meaningful life begins, it is not up to the Supreme Court to decide. Instead, opponents argue, the proper solutions to the question would best be found via state legislatures and the legislative process.
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The aftermath of Roe v. Wade being overturned
The overturning of Roe v. Wade has had a profound impact on abortion access and reproductive rights in the United States, with far-reaching consequences for people across the country. The decision, made by the US Supreme Court on June 24, 2022, dismantled nearly 50 years of legal protection for abortion rights and paved the way for individual states to curtail or ban abortion.
In the aftermath of the ruling, a significant number of states have moved quickly to restrict or outlaw abortion. Nine states implemented abortion bans immediately, and another dozen are in the process. This has resulted in legal chaos, with injunctions against individual state laws being lifted and pre-Roe bans being reinterpreted. The only alternative to abortion is childbirth, which carries a 14 times higher risk of death. This has forced people to assume significant medical risks against their will and is expected to disproportionately impact Black women, who already experience high rates of maternal mortality.
The decision has also escalated attacks on other aspects of sexual and reproductive health care, including gender-affirming care, contraception, and emergency abortion care. State legislators have targeted medication abortion, which has become a critical method for abortion care, with 63% of US abortions in 2023 being medication abortions. The Biden administration has reiterated that EMTALA protections include abortion access, even in states with bans, but similar threats to these protections could emerge in the future.
The ruling in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, has been criticized for abandoning long-standing precedent and discounting the rights of historically marginalized communities. The insistence that rights be "deeply rooted" in US history has been seen as favouring the interests of white, heterosexual men who dominated government at the time of the country's founding. The decision has also raised concerns about the potential overturning of other landmark rulings, including established rights to contraception access, same-sex relationships, and same-sex marriage.
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Frequently asked questions
Roe v. Wade is a 1973 lawsuit that led to the Supreme Court making a ruling on abortion rights.
Roe v. Wade ruled that unduly restrictive state regulation of abortion is unconstitutional. The ruling recognized that the right to decide whether to continue a pregnancy comes within the constitutional protection that the liberty clause in the 14th Amendment affords to privacy.
Roe v. Wade decriminalized abortion nationwide and protected the right to access abortion legally across the country. It placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and freedom of religion.
