ROE ET AL. V. WADE, DISTRICT ATTORNEY OF DALLAS COUNTY
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
NO. 70-18. ARGUED DECEMBER 13, 1971-- REARGUED OCTOBER 11,1972-- DECIDED JANUARY 22, 1973
A pregnant single woman (roe) brought a class action challenging the Constitutionality of the texas criminal abortion laws, which prescribe Procuring or attempting an abortion except on medical advice for the Purpose of saving the mother's life. A licensed physician (hallford), Who had two state abortion prosecutions pending against him, was Permitted to intervene. A childless married couple (the does), the Wife not being pregnant, separately attacked the laws, basing alleged Injury on the future possibilities of contraceptive failure, pregnancy, Unpreparedness for parenthood, and impairment of the wife's health. A Three-judge district court, which consolidated the actions, held that Roe and hallford, and members of their classes, had standing to sue and Presented justiciable controversies. Ruling that declaratory, though Not injunctive, relief was warranted, the court declared the abortion Statutes void as vague and overbroadly infringing those plaintiffs' Ninth and fourteenth amendment rights. The court ruled the does' Complaint not justiciable. Appellants directly appealed to this court On the injunctive rulings, and appellee cross-appealed from the District court's grant of declaratory relief to roe and hallford. Held:
1. While 28 U.S.C. § 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory reliefalone, review is not foreclosed when the case is properly before the Court on appeal from specific denial of injunctive relief and the arguments as to both injunctive and declaratory relief are necessarily identical.
2. Roe has standing to sue; the Does and Hallford do not. .
(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her suit. Litigation involving pregnancy, which is "capable of repetition, yet evading review," is an exception to the usual federal rule that an actual controversymust exist at review stages, and not simply when the action is initiated.
(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no federally protected right not assertable as a defense against the good faith state prosecutions pending against him. Samuels v. Mackell, 401 U.S. 66.
(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to present an actual case or controversy.
3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term.. (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related tomaternal health.
(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother 4. The State may define the term "physician" to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. P. 165 .
5. It is unnecessary to decide the injunctive relief issue, since the Texas authorities will doubtless fully recognize the Court's ruling that the Texas criminal abortion statutes are unconstitutional.
314 F.Supp. 1217, affirmed in part and reversed in part. MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179 , present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast, and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of thevigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place someemphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York, 198 U.S. 45 , 76 (1905):
[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certainopinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code. [n1] These make it a crime to "procure an abortion," as therein [p*118] defined, or to attempt one, except with respect to "an abortion procured or attempted by medical advice for the purpose of saving the life of the mother." Similar statutes are in existence in a majority of the States. Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.Stat., c. 8, Arts. 536-541 (1879); Texas Rev.Crim.Stat., Arts. 1071-1076 (1911). The final article in each of these compilations provided the same exception, as does the present Article 1196, for an abortion by "medical advice for the purpose of saving the life of the mother."
Jane Roe, [n4] a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint, Roe purported to sue "on behalf of herself and all other women" similarly situated.
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint, he alleged that he had been arrested previously for violations of the Texas abortion statutes, andthat two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague anduncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. John and Mary Doe, a married couple, filed a companion complaint to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a "neural-chemical" disorder; that her physician had "advised her to avoid pregnancy until such time as her condition has materially improved" (although a pregnancy at the present time would not present "a serious risk" to her life); that, pursuant to medical advice, she had discontinued use of birth control pills; and that, if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue "on behalf of themselves and all couples similarly situated." Dr. Hallford's complaint in intervention, therefore, is to be dismissed. [n7] He is remitted to his defenses in the state criminal proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief and failed to dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Does' standing in their case has little significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes. Nevertheless, we briefly note the Does' posture.
Their pleadings present them as a childless married couple, the woman not being pregnant, who have no desire to have children at this time because of their having received medical advice that Mrs. Doe should avoid pregnancy, and for "other highly personal reasons." But they "fear . they may face the prospect of becoming [p*128] parents." And if pregnancy ensues, they "would want to terminate" it by an abortion. They assert an inability to obtain an abortion legally in Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside Texas to some place where the procedure could be obtained legally and competently.
We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged "detrimental effect upon [their] marital happiness" because they are forced to "the choice of refraining from normal sexual relations or of endangering Mary Doe's health through a possible pregnancy." Their claim is that, sometime in the future, Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and, at that time in the future, she might want an abortion that might then be illegal under the Texas statutes.
This very phrasing of the Does' position reveals its speculative character. Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place, and all may not combine. In the Does' estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case orcontroversy. Younger v. Harris, 401 U.S. at 41-42; Golden v. Zwickler, 394 U.S. at 109-110; Abele v. Markle, 452 F.2d at 1124-1125; Crossen v. Breckenridge, 446 F.2d at 839. The Does' claim falls far short of those resolved otherwise in the cases that the Does urge upon us, namely, Investment Co. Institute v. Camp, 401 U.S. 617 (1971);Data Processing Service v. Camp, 397 U.S. 150 (1970); and Epperson v. Arkansas, 393 U.S. 97 (1968). See also Truax v. Raich, 239 U.S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District Court, and we affirm that dismissal.
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id. at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. at 486 (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.
1. Ancient attitudes. These are not capable of precise determination. We are told that, at the time of the Persian Empire, abortifacients were known, and that criminal abortions were severely punished. We are also told,however, that abortion was practiced in Greek times as well as in the Roman Era, and that "it was resorted to without scruple." The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of thelife of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable. Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion.
2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medicalprofession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described as theFather of Medicine, the "wisest and the greatest practitioner of his art," and the "most important and most complete medical personality of antiquity," who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past? The Oath varies somewhat according to the particular translation, but in anytranslation the content is clear:
I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner, I will not give toa woman a pessary to produce abortion, orI will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I willnot give to a woman an abortive remedy.
Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, post, , it represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr.Edelstein provides us with a theory:The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them, the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, "echoes Pythagorean doctrines," and "[i]n no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity."
Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion,and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A.D. 130-200) "give evidence of the violation of almost every one of its injunctions." [n18] But with the end of antiquity, a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath "became the nucleus of all medical ethics," and "was applauded as the embodiment of truth." Thus, suggests Dr.Edelstein, it is "a Pythagorean manifesto, and not the expression of an absolute standard of medical conduct."
This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics.
3. The common law. It is undisputed that, at common law, abortion performed before "quickening" -- the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy -- was not an indictable offense. The absence of a common law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became "formed" or recognizably human, or in terms of when a "person" came into being, that is, infused with a "soul" or "animated." A loose consensus evolved in early English law that these events occurred at some point between conception and live birth. This was "mediate animation." Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that, prior to this point, the fetus was to be regarded as part of the mother, and its destruction,therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common law scholars, and found its way into the received common law in this country.
Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton,writing early in the 13th century, thought it homicide. But the later and predominant view, following the great common law scholars, has been that it was, at most, a lesser offense. In a frequently cited passage, Coke took the position that abortion of a woman "quick with childe" is "a great misprision, and no murder." Blackstone followed, saying that, while abortion after quickening had once been considered manslaughter (though not murder), "modern law" took a less severe view.A recent review of the common law precedents argues, however, that those precedents contradict Coke, and that even post-quickening abortion was never established as a common law crime. This is of some importance, because, while most American courts ruled, in holding ordictum, that abortion of an unquickened fetus was not criminal under their received common law, others followed Coke in stating that abortion of a quick fetus was a "misprision," a term they translated to mean "misdemeanor."That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common law prosecutions for post-quickening abortion),makes it now appear doubtful that abortion was ever firmly established as a common law crime even with respect to the destruction of a quick fetus. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58,came in 1803. It made abortion of a quick fetus, § 1, a capital crime, but, in § 2, it provided lesser penalties for the felony of abortion before quickening, and thus preserved the "quickening" distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85. § 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of "the life of a child capable of being born alive." It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be found guilty of the offense unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.
A seemingly notable development in the English law was the case of Rex v. Bourne,  1 K.B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge Macnaghten referred to the 1929 Act, and observed that that Act related to "the case where a child is killed by a willful act at the time when it is being delivered in the ordinary course of nature." Id. at 691. He concluded that the 1861 Act's use of the word "unlawfully," imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother's life in the 1861 Act. He then construed the phrase "preserving the life of the mother" broadly, that is, "in a reasonable sense," to include a serious and permanent threat to the mother's health, and instructed the jury to acquit Dr. Bourne if it found he had acted in a good faith belief that the abortion was necessary for this purpose. Id. at 693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated,or (b)that there is a substantial risk that, if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
The Act also provides that, in making this determination, "account may be taken of the pregnant woman's actual or reasonably foreseeable environment." It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good faith opinion that the abortion "is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman."
5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the preexisting English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that related to a woman "quick with child." The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860. [n30] In 1828, New York enacted legislation that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.
By 1840, when Texas had received the common law, only eight American States had statutes dealing with abortion.It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening, but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother's life, that provision soon disappeared, and the typical law required that the procedure actually be necessary for that purpose. Gradually, in the middle and late 19th century, the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother. The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health.Three States permitted abortions that were not "unlawfully" performed or that were not "without lawful justification," leaving interpretation of those standards to the courts. [n36] In [p*140] the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws,most of them patterned after the ALI Model Penal Code, § 230.3, set forth as Appendix B to the opinion in Doe v. 205.
It is thus apparent that, at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunityto make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.
An AMA Committee on Criminal Abortion was appointed in May, 1857. It presented its report, 12 Trans. of the Am.Med.Assn. 778 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to investigate criminal abortion "with a view to its general suppression." It deplored abortion and its frequency and it listed three causes of "this general demoralization":
The first of these causes is a widespread popular ignorance of the true character of the crime -- a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.
The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life. .
The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors,which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, [p*142] and to its life as yet denies all protection.
Id. at 776. The Committee then offered, and the Association adopted, resolutions protesting "against such unwarrantable destruction of human life," calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies "in pressing the subject." Id. at 28, 78.
In 1871, a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation,
We had to deal with human life. In a matter of less importance, we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less.
'A Stunning Approval for Abortion': Roe v. Wade Reactions
What happened to Jane Roe was, at the time, nothing special.
She wanted an abortion and couldn’t get one. So, like many others, she had a child and gave him up for adoption. But then she did something that was unusual: she sued. The case that bears her name, Roe v. Wade, was decided on this day, Jan. 22, in 1973. As TIME reported in the Feb. 5 issue of that year, under the headline “A Stunning Approval for Abortion”:
Soon after her illegitimate son was born two years ago, “Jane Roe,” a divorced Dallas bar waitress, put him up for adoption. At almost the same time, “Mary Doe,” an Atlanta housewife, bore a child who was also promptly adopted. Both women had asked for abortions and, like thousands of others, they had been turned down. Unlike most of the others, though, Roe and Doe went to court to attack the state statutes that frustrated them. The resulting legal fights took too long for either woman to get any practical benefit. But last week they had the satisfaction of hearing the Supreme Court read their pseudonyms into the annals of constitutional law. By a surprising majority of 7 to 2, the court ruled that Roe and Doe had won one of the nation’s most fiercely fought legal battles. Thanks to the Texas waitress and the poverty-stricken Georgia housewife, every woman in the U.S. now has the same right to an abortion during the first six months of pregnancy as she has to any other minor surgery.
The ruling, the story continued, was “bold and uncompromising.” Even states that already had few restrictions on abortion would have to make their laws more lax (by, for example, eliminating residency requirements). From that point, abortion during the first trimester would be off-limits to government intervention after that, the state could make certain regulations but, until the fetus became viable, could not prevent the procedure from happening.
The reasoning, as described in an opinion by Justice Harry Blackmun, was traced to the right of privacy, which he held had become part of the liberty protected by the 14th Amendment. A fetus, Blackmun continued, was not a person and thus has no rights that can run counter to the right to privacy. Further, he took into consideration that many of the U.S. statutes restricting abortion had been written when the procedure was much more dangerous to undertake. The opinion was careful to say that states and doctors were under no obligation to perform abortions, but rather that they not make it illegal for those who would otherwise perform the procedures to do so.
But, even from the first, it was clear that Blackmun’s surety was not echoed nationwide.
Not only did two of his fellow justices disagree, but anti-abortion advocates nationwide also spoke up with their unhappiness about the decision. Protests and angry statements were quick to come, and one group even urged excommunication of Justice Brennan, the court’s resident Catholic. Others lobbied for a constitutional amendment that would force the decision into obsolescence. “No one can predict how successful such an effort would be, but obviously the abortion decision, like those on school prayer, desegregation and criminal rights, has once again brought the court under heated criticism,” TIME commented, noting that a poll taken right before the decision revealed that eliminating first-trimester restrictions was favored among Americans by only a single percentage point more than the opposition. “Such a close division of sentiment can only ensure that while the matter has been settled legally,” the piece continued, “it remains a lightning rod for intense national debate.”
Read the full 1973 story here in the TIME Vault:A Stunning Approval for Abortion
Roe v. Wade
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Roe v. Wade, legal case in which the U.S. Supreme Court on January 22, 1973, ruled (7–2) that unduly restrictive state regulation of abortion is unconstitutional. In a majority opinion written by Justice Harry A. Blackmun, the Court held that a set of Texas statutes criminalizing abortion in most instances violated a woman’s constitutional right of privacy, which it found to be implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment (“…nor shall any state deprive any person of life, liberty, or property, without due process of law”).
The case began in 1970 when “Jane Roe”—a fictional name used 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 disagreed with Roe’s assertion of an absolute right to terminate pregnancy in any way and at any time and attempted to balance a woman’s right of privacy with a state’s interest in regulating abortion. In his opinion, Blackmun noted that only a “compelling state interest” justifies regulations limiting “fundamental rights” such as privacy and that legislators must therefore draw statutes narrowly “to express only the legitimate state interests at stake.” The Court then attempted to balance the state’s distinct compelling interests in the health of pregnant women and in the potential life of fetuses. It placed the point after which a state’s compelling interest in the pregnant woman’s health would allow it to regulate abortion “at approximately the end of the first trimester” of pregnancy. With regard to the fetus, the Court located that point at “capability of meaningful life outside the mother’s womb,” or viability.
Repeated challenges since 1973 narrowed the scope of Roe v. Wade but did not overturn it. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Supreme Court established that restrictions on abortion are unconstitutional if they place an “undue burden” on a woman seeking an abortion before the fetus is viable. In Gonzales v. Carhart (2007), the Court upheld the federal Partial-Birth Abortion Ban Act (2003), which prohibited a rarely used abortion procedure known as intact dilation and evacuation. In Whole Woman’s Health v. Hellerstedt (2016), the Court invoked its decision in Casey to strike down two provisions of a Texas law requiring abortion clinics to meet the standards of ambulatory surgical centres and abortion doctors to have admitting privileges at a nearby hospital. Four years later, in June Medical Services L.L.C. v. Russo (2020), the Court invoked Whole Woman’s Health to declare unconstitutional a Louisiana statute that was, as the majority noted, nearly identical to Texas’s admitting-privileges law.
In 1998, having undergone two religious conversions, McCorvey publicly declared her opposition to abortion. In the documentary AKA Jane Roe (2020), however, a dying McCorvey claimed that she had been paid by antiabortion groups to support their cause.
The Story Behind Roe v. Wade
The case we now know as Roe v. Wade first began in 1970: A woman named Norma McCorvey, referred to as "Jane Roe" in court documents to protect her privacy, filed a lawsuit against Henry Wade, the district attorney of Dallas County, Texas at the time. What made McCorvey file that lawsuit? A new Texas law made abortion outright illegal unless the woman’s life was at risk. Having grown up poor, McCorvey had already given up two children for adoption. She ended up doing the same with a third child, namely because she didn't have the money to either bribe a doctor for an abortion or travel to a place where they were legal.
That said, the criminalization of abortion would disproportionately impact folks living in poverty, like McCorvey, as well as people of color. In June of 1970, the case reached the Texas District Court and, while the court did rule that the state’s abortion ban was unconstitutional, it refused to file an injunction. Neither Roe nor Wade were satisfied with this outcome, so both parties appealed the case to the Supreme Court, which agreed to hear it in 1971.
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What led to the Roe decision in 1973?
By the mid-1960s, a movement had begun to loosen American abortion laws. During the 1930s and 1940s, improvements in obstetric and gynaecological care had made it hard for physicians to justify abortion as a means of saving a woman’s life. Convinced of the wrongful nature of abortion laws that made the procedure illegal even when women would suffer adverse health consequences by continuing with the pregnancy, some doctors demanded reform. In 1959, the American Law Institute (ALI), a group of legal experts, released a draft proposal that would make abortion legal in cases of foetal abnormality, rape or incest, or when there was a threat to the woman’s health.
States from California to Georgia began passing the ALI model law in the mid-1960s. But some doctors, worried that they would fall outside of the narrow ALI exceptions, still refused requests for abortion. Soon, new forces joined the movement for reform: feminists demanded the outright repeal of all abortion restrictions, as did members of the population-control movement (a cause dedicated to curbing demographic growth).
Meanwhile, opponents of abortion – many of whom were tied to the Catholic Church – mounted a state-by-state campaign. To attract a more religiously diverse group of supporters, these activists began defining themselves as defenders of a right to life based on the US Constitution and the Declaration of Independence. Those who supported repeal responded that the Constitution protected a right to choose abortion.
Constitutional developments encouraged those demanding repeal. In Griswold v Connecticut (1965), the Supreme Court struck down a Connecticut law prohibiting married couples from using birth control. The Court based its decision on a right to privacy that the majority believed was implied in the text of the Constitution: Griswold relied on the idea that the text of the American Constitution had “penumbras” – rights implied by the protections spelled out in the document. In 1972, in Eisenstadt v Baird, the Court invalidated a Massachusetts law allowing married, but not unmarried, people to purchase contraceptives.
The stage was set for the Roe decision.
What did Roe v Wade actually say?
Roe began when Norma McCorvey, a 21-year-old woman from Texas, learned that she was pregnant with her third child. McCorvey wanted to end the pregnancy, and her friends advised her to claim she was raped (so that she could have an abortion). But Texas law did not allow for abortions in cases of rape or incest, and the illegal clinic that McCorvey hoped to use had closed. She eventually found her way to Sarah Weddington, a 25-year-old attorney who herself had had an abortion several years earlier. Weddington and another attorney, Linda Coffee, sought a declaration that Texas’s law – which allowed for abortion only if a woman’s life was at risk – was unconstitutional. A three-judge panel of a Texas district court held that the law was unconstitutional, and the Supreme Court agreed to hear the case. The Court also took a second case, Doe v Bolton, which involved a version of the ALI model law.
Issued in January 1973, the Roe v Wade judgment affirmed that access to safe and legal abortion was a constitutional right. It became a landmark case that effectively legalised abortion across the United States. The judgment held that the right to privacy described in Griswold also protected a woman’s right to choose abortion. However, the Court spoke much more about the rights and beliefs of physicians than many might have expected. Indeed, the Court held that in the first trimester, states had to leave abortion to the “medical judgment of the pregnant woman’s attending physician”. The Court developed the trimester framework: regulations were impermissible in the first trimester while in the second trimester the government could regulate only to advance an interest in women’s health, and only after the viability of the foetus had been established could the government advance an interest in foetal life. Roe rejected the claim that the foetus was a rights-holding person, reasoning that the term “person” applied in the Constitution only after birth.
Roe invalidated the majority of abortion laws on the books at the time of the decision, and the ruling intensified an abortion battle that had already reached a fever pitch.
Is Roe the law in the United States of America today?
Yes and no. To answer the question, we need to go back to the years immediately after Roe. At the time, pro-lifers pursued an amendment to the Constitution banning abortion and recognising a right to life. But to keep the number of abortions low, anti-abortion groups also lobbied for gentler laws said to comply with Roe, such as statutes requiring women to wait 24 or 48 hours after visiting a clinic, or consult with their husbands, before having an abortion.
Since the final decades of the 20th century, abortion has become a major political issue. While politicians from both parties could at one time be found in the pro-life and pro-choice camps, the parties’ positions had diverged by 1980. Both Republicans (who generally oppose abortion) and Democrats (who generally favour a right to choose abortion) helped to polarise American debate even further.
After Ronald Reagan won the 1980 presidential election, a majority of lawmakers in both houses of Congress opposed abortion, but pro-lifers were too divided to agree on a constitutional amendment. Anti-abortion groups, however, soon identified a new mission: control of Supreme Court nominations, which would mean the difference for legal abortion. Through presidential elections, the movement would help to determine who made nominations for the Supreme Court. If abortion foes could forge a new majority in the Court, they could ensure that Roe v Wade was overturned.
Over the course of the decade following Reagan’s election, Republican presidents nominated a number of Supreme Court justices, and by 1992, many expected the Court to overturn Roe. But in 1992, in the case of Planned Parenthood v Casey, the Supreme Court preserved a right to abortion and suggested that it had as much to do with equality for women as it did with autonomy. But Casey did not leave Roe unscathed. The Court got rid of the trimester framework, instead holding that states could permissibly regulate abortion as long as they did not unduly burden a woman’s right to choose.
Casey did not defuse the conflict. In the 1990s, thousands of protestors tried to blockade clinics in major American cities, and there were a number of shocking cases in which abortion opponents killed doctors who performed the procedure, including Dr David Gunn in 1993 and Dr John Bayard Britton in 1994, both of whom were shot dead.
Pro-lifers continued to chip away at Roe, passing laws that criminalised specific abortion techniques or required women to hear dubious statements about the dangers of abortion before deciding whether or not to proceed. Pro-choice groups, meanwhile, often pushed beyond protection for freedom, instead campaigning for reproductive justice – shorthand for a platform that would not only give women the power to decide when to have children, but also provide women with financial support, jobs, health care, and other resources to raise the children they wished to have.
Why are we seeing so many abortion restrictions now, and will Roe be overturned?
In 2010, a backlash to Barack Obama’s healthcare reform delivered many state legislatures to Republicans, who went on to pass a record number of abortion restrictions. And by 2018, Donald Trump had replaced the Court’s swing vote, Anthony Kennedy, with a judge many predicted would overturn Roe. Anti-abortion lawmakers took hope from the fact that the Federalist Society (a group of conservative jurists, professors, and lawyers) had screened nominees to ensure that they opposed Roe. Several states proceeded to pass laws that were blatantly unconstitutional under Casey, such as laws banning abortion at six weeks or earlier. The point, after all, was to force the Court to reconsider Roe.
So, will the Court undo the right to choose? The smart bet would be that the justices will at the very least dismantle abortion rights, although probably not as quickly as some believe. After all, Chief Justice John Roberts cares deeply about the Court’s reputation for being above partisanship, and Justice Brett Kavanaugh has repeatedly expressed his respect for precedent. Undoing Roe will probably take time – and more than one decision by the Supreme Court. And, as history tells us, we can never be sure what the Court will actually do when it comes to Roe: everyone expected the Court to reverse the ruling in 1992. We could be wrong again.
Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law, specialising in the legal history of reproduction, the family, sexuality, and the Constitution. Her books include After Roe: The Lost History of the Abortion Debate (Harvard University Press, 2015), Beyond Abortion: Roe v. Wade and the Fight for Privacy (Harvard University Press, 2018), andAbortion in America: A Legal History from Roe to the Present(Cambridge University Press, forthcoming).
Movie Review: ‘Roe v. Wade’
Whether Hollywood mogul Samuel Goldwyn ever echoed that sentiment, the advice continues to hold true for screenwriters today. Stories designed to win an argument rarely make for effective entertainment.
A case in point: the historical dramatization “Roe v. Wade” (Quiver). Good intentions can only partially sustain this re-creation of events surrounding the landmark 1973 Supreme Court case that legalized abortion across the United States. So even those movie fans most committed to the cause of life will be unable to overlook its aesthetic shortcomings.
Primary among these are the film’s overly rhetorical tone and the fact that its script, penned by co-directors Cathy Allyn and Nick Loeb in collaboration with Ken Kushner, comes stuffed full of citations whose appearance in the dialogue registers as anything but natural. In fact, it sometimes feels as though the cast had been turned into walking editions of Bartlett’s Familiar Quotations.
While the picture reveals a few interesting historical sidelights, moreover, Allyn and Loeb fail to bring together the varied ingredients of their story. As a result, viewers may discern the unfulfilled potential of at least three films hovering under the surface here.
The first would be a straightforward recounting of the titular legal proceeding, a still-controversial chapter of history nominally pitting Norma McCorvey (Summer Joy Campbell), a fragile young woman in her early 20s shielded under the legal pseudonym Jane Roe, against Henry Wade (James DuMont), the district attorney of Dallas County, Texas. Numerous questions about the case linger.
Was McCorvey — who later went on to become a prominent figure in pro-life circles — manipulated by her lawyers, Sarah Weddington (Greer Grammar) and Linda Coffee (Justine Wachsberger)?
Were Supreme Court justices unduly swayed by familial pressure such as that which here is depicted as being brought against Chief Justice Warren E. Burger (Jon Voight)? Did the involvement of other justices’ family members in the work of Planned Parenthood play a role behind the scenes?
A second movie could be devoted to the conversion story of Dr. Bernard Nathanson (Loeb), from whose perspective the narrative of “Roe v. Wade” is told. Together with activist Larry Lader (Jamie Kennedy), Nathanson became a leader in the political movement to make abortion legal. He also was an indefatigable and prolific abortionist.
The experience of witnessing his own work via the newly developed technology of ultrasound, however, led to a radical transition in Nathanson’s thinking. He became a high-profile opponent of abortion and narrated the 1984 movie “The Silent Scream.”
Still a third picture could focus on the biography of Dr. Mildred Jefferson (Stacey Dash), a long-standing champion of the unborn. Among other achievements, Jefferson was the first Black woman to graduate from Harvard Medical School. A co-founder of the National Right to Life Committee, she served as its president in the 1970s.
As it is, none of these elements jells with the others. Consequently, Allyn and Loeb’s treatment of one of the most controverted political topics in recent history emerges as more ambitious and earnest than successful.
The film contains mature themes, disturbing images, medical gore and a couple of mild oaths. The Catholic News Service classification is A-III — adults. The Motion Picture Association rating is PG-13 — parents strongly cautioned. Some material may be inappropriate for children under 13.
On this day, the Roe v. Wade decision
On January 22, 1973, the Supreme Court handed down a decision that continues to divide the nation to this day. In Roe v. Wade, the Court ruled that a state law that banned abortions except to save the life of the mother was unconstitutional under the Fourteenth Amendment. The decision has proven to be one of the most controversial cases in the Court&rsquos history.
Norma L. McCorvey discovered that she was pregnant in June 1969. It was to be her third child, but McCorvey wished to have an abortion. At the time, Texas law only allowed for abortion in cases of rape, incest, or to save the life of the mother. McCorvey was advised by her friends to falsely assert that she had been raped, but there was no police report to back up this claim. Instead, McCorvey attempted to have an illegal abortion, but she soon discovered that the authorities had shut down the facility.
McCorvey visited a local attorney seeking advice on what to do next. The attorney assisted McCorvey with beginning the process of putting her child up for adoption, and also referred her to Linda Coffee and Sarah Weddington, two recent graduates of the University of Texas Law School.
Coffee and Weddington brought a lawsuit on McCorvey&rsquos behalf (who went by the alias &ldquoJane Roe&rdquo throughout the case to protect her identity) claiming that the state&rsquos law violated Roe&rsquos constitutional rights. The suit claimed that, while her life was not in danger, Roe had a right to obtain an abortion in a safe, medical environment within her home state. The United States District Court for the Northern District of Texas agreed, and ruled that the Texas law violated Roe&rsquos right to privacy found in the Ninth Amendment, and was therefore unconstitutional.
Texas appealed the decision to the Supreme Court, and the case reached the Court in 1970. However, the Court decided to wait to hear Roe until they had decided Younger v. Harris and United States v. Vuitch. After the Court announced the decision in Vuitch, which upheld the constitutionality of a Washington, D.C. statute that similarly outlawed abortion, the Court voted to hear Roe and the closely related case of Doe v. Bolton.
Arguments in the case began on December 13, 1971. Shortly before that date, Justices Hugo Black and John Marshall Harlan II retired from the bench. Chief Justice Warren Burger decided that Roe and Doe, as well as the other cases that were scheduled on the docket, should go on as planned.
Jay Floyd, who was representing Texas in the case, opened his argument with what commentators have described as the &ldquoworst joke in legal history.&rdquo In reference to Coffee and Weddington, the female attorneys representing McCorvey, Floyd began by saying, &ldquoMr. Chief Justice, and may it please the Court. It&rsquos an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.&rdquo
The rest of the case was argued that day. However, as Justice Harry Blackmun was attempting to draft a preliminary opinion based upon the law&rsquos vagueness in May 1971, he proposed to his colleagues that the case be reargued. After some debate on the issue, the case was reargued on October 11, 1972. Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for the case&rsquos reargument in front of the Court.
Justice Blackmun remained as the justice selected to the Court&rsquos opinion following the second argument, and on January 22, 1973, the Court issued its 7-2 decision. In it, the Court determined that Texas had violated Roe&rsquos constitutional right to privacy.
Drawing on the First, Fourth, Ninth, and Fourteenth Amendments, the Court said that the Constitution protects an individual&rsquos &ldquozones of privacy.&rdquo Citing earlier cases that ruled that contraception, marriage, and child rearing were activities included in these &ldquozones of privacy,&rdquo the Court found that the zone was &ldquobroad enough to encompass a woman&rsquos decision whether or not to terminate her pregnancy.&rdquo
Because the Court determined that abortions were within a woman&rsquos &ldquozone of privacy,&rdquo it was therefore ruling that a woman had a fundamental right to the procedure. Although this right was fundamental, that did not mean that it could not be limited.
The Court said that as a fundamental right, any limitations on abortion must meet the standards of strict scrutiny. This meant that there must have been &ldquocompelling state interest&rdquo in regulating abortions, and the legislation must have been narrowly tailored to meet this &ldquocompelling&rdquo state interest.
The Court then assessed the state&rsquos interests. Justice Blackmun found two legitimate government interests: protecting the mother&rsquos health and &ldquoprotecting the potentiality of human life.&rdquo In order to balance the fundamental privacy right to abortion with these two state interests, the Court created the trimester framework. This solution determined when the right to abortion would be without limitations, and when the state&rsquos interests would be compelling enough to outweigh the woman&rsquos right to choose.
The Court said that, during the first trimester, the abortion decision was left to the woman and her doctor. Following the first trimester, until fetal viability, the state&rsquos interest in the mother&rsquos health reaches the compelling level, and the state can regulate the procedure, only if it &ldquoreasonably relates to the preservation and protection of maternal health.&rdquo When the point of fetal viability is reached, then the state could protect its interest in &ldquopotential life&rdquo and regulate abortion to that end. This includes banning that practice of abortion at that stage in the pregnancy.
In 1992, the Court adjusted the trimester framework in Planned Parenthood of Southeastern Pennsylvania v. Casey. In that case, the plurality asserted, under the Fourteenth Amendment, that the mother had a constitutional right to abortion and that this right could not be unduly interfered with by the state prior to viability&mdashwhat&rsquos known now as the &ldquoundue burden&rdquo test.
Ever since the Roe v. Wade decision was issued in 1973, the case has remained one of the most contentious in the public sphere. It has inspired political campaigns and movement, and sparked debates throughout the nation around ethics, religion, biology, and constitutional law.
McCorvey was born on Sept. 22, 1947, as Norma Nelson to Mary and Olin Nelson. McCorvey ran away from home at one point and, after returning, was sent to reform school. After the family moved to Houston, her parents divorced when she was 13. McCorvey suffered abuse, met and married Elwood McCorvey at age 16, and left Texas for California.
When she returned, pregnant and frightened, her mother took her baby to raise. McCorvey's second child was raised by the father of the baby with no contact from her. McCorvey initially said that her third pregnancy, the one in question at the time of Roe v. Wade, was the result of rape, but years later she said she had invented the rape story in an attempt to make a stronger case for an abortion. The rape story was of little consequence to her lawyers because they wanted to establish a right to abortion for all women, not just those who had been raped.
Roe v. Wade Was Decided By A Republican-Nominated Supreme Court
One of the major issues in this presidential election concerns the nomination and subsequent appointment of at least one Supreme Court justice and possibly two or more justices.
It seems that among evangelical Christians, two issues in particular are driving support for Donald Trump: the nomination/appointment of Supreme Court justices, and the fact that he is Republican.
Moreover, at the center of the Supreme Court discussion is the 1973 Court decision on Roe vs. Wade.
During the final debate between Clinton and Trump, held at the University of Nevada, Las Vegas, on October 19, 2016, and moderated by Chris Wallace of Fox News, Wallace opened the debate with discussion of the Supreme Court. Below are the excerpted responses from Clinton and Trump on the issue of nominating Supreme Court justices, especially as such concerns Roe vs. Wade. (The full transcript can be read here.)
So, we have the Republican presidential candidate opposed to Roe vs. Wade and wanting to appoint justices to overturn it, and we have the Democratic presidential candidate supporting Roe vs. Wade and wanting to nominate justices that will support it.
In the remainder of this post, I address two assumptions/generalizations that evangelical Christians I have interacted with appear to possess: 1) The president has free rein in appointing Supreme Court justices 2) filling the Supreme Court with Republican-nominated/appointed justices will lead to reversal of Roe vs. Wade.
To begin, if the president had free reign in appointing Supreme Court justices, then there would be no current vacancy. President Obama’s March 16, 2016, nomination of Merrick Garland to replace Antonin Scalia, who died on February 13, 2016, is unprecedented in that the Senate simply refused to consider the nomination.
However, the reality is that the president must work with the Senate when nominating a justice because the president’s nomination must first go before the Senate Judiciary Committee then to the full Senate, where a majority vote of Senators present is required to confirm the nomination. (To read about the nomination and confirmation processes, see here and here.)
Thus, no matter the intentions of Trump or Clinton to nominate potential justices with a particular view on Roe vs. Wade (to overturn or not), any nomination must gain approval of the majority of Senators present on the day of a vote to confirm. Currently,Republicans hold a majority in the Senate however, there is no guarantee that such will be the case after November 08th, and what the Senate majority will be when future seats become open on the Court is unknown.
Indeed, some Republican US senators are formulating plans to prevent confirming any Supreme Court nomination from Clinton should she become president.
But let us consider the assumption that justices nominated by Republican presidents will lead to overturning Roe vs. Wade.
If a Supreme Court dominated by nominations by Republican presidents were a guarantee of overturning Roe vs. Wade, then the outcome of Roe vs. Wade would have been different from the outset.
The reality is that in 1973, Roe vs. Wade was decided by a Court that was comprised of a majority of justices who were nominated by Republican presidents.
The vote on Roe vs. Wade was 7-2. Those justices supporting the case’s pro-choice outcome were as follows, including the president nominating each and the president’s party affiliation:
- Harry Blackmun (Nixon, R)
- Warren Burger (Nixon, R)
- William Douglas (FDR, D)
- William Brennan (Eisenhower, R)
- Potter Stewart (Eisenhower, R)
- Thurgood Marshall (LBJ, D)
- Lewis Powell (Nixon, R)
Those dissenting on Roe vs. Wade — only two – and both were not Republican-president-nominated to the Court:
Nixon nominated four justices. Three concurred on Roe vs. Wade— arguably a decisive factor in the outcome of the case.
The bottom line is that Democratic presidents did not nominate the Supreme Court that produced the Roe vs. Wade outcome that many evangelical Christians believe a Trump/Republican presidency will reverse.
Reality: A Supreme Court dominated by Republican-nominated justices produced Roe vs. Wade.