Wondering what happens now? Our Supreme Court blog has coverage of the practical effects of the court's latest decision on abortion and what the future might hold for legal fights over reproductive rights.
Use these links to jump to different sections:
- Roe v. Wade Legal Arguments
- How the Supreme Court Decided Roe v. Wade
- Significance of Roe v. Wade
- Public Reactions
- Related Cases
Roe v. Wade is a 1973 lawsuit that famously led to the Supreme Court making a ruling on abortion rights. Jane Roe, an unmarried pregnant woman, filed suit on behalf of herself and others to challenge Texas abortion laws. A Texas doctor joined Roe's lawsuit, arguing that the state's abortion laws were too vague for doctors to follow. He had previously been arrested for violating the statute.
At the time, abortion was illegal in Texas unless it was done to save the mother's life. It was a crime to get an abortion or to attempt one.
In Roe v. Wade, the Supreme Court decided two important things:
- The United States Constitution provides a fundamental "right to privacy" that protects a person's right to choose whether to have an abortion.
- But the abortion right is not absolute. It must be balanced against the government's interests in protecting health and prenatal life.
Each side of Roe v. Wade used several arguments before the Supreme Court. Below, we outline the main arguments.
Texas Defends Abortion Restriction
The state put forth three main arguments in its case to defend the abortion statute:
- States have an interest in safeguarding health, maintaining medical standards, and protecting prenatal life
- A fetus is a "person" protected by the 14th Amendment
- Protecting prenatal life from the time of conception is a compelling state interest
Roe Claims Absolute Privacy Rights
Jane Roe and the others involved based their case on the following arguments:
- The Texas law invaded an individual's right to "liberty" under the 14th Amendment
- The Texas law infringed on rights to marital, familial, and sexual privacy guaranteed by the Bill of Rights
- The right to an abortion is absolute - a person is entitled to end a pregnancy at any time, for any reason, in any way they choose
How The Supreme Court Decided Roe v. Wade
The Court split the difference between the two arguments presented. First, the Court recognized that abortion does fall under privacy rights.
The constitutional right to privacy comes from the Due Process Clause of the Fourteenth Amendment. 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 all the way back to 1891. Just one year before Roe, the Supreme Court held that "in a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed." In Roe v. Wade, the Court decided that this right to privacy extends to control over pregnancy.
The justices acknowledged that being forced to continue a pregnancy puts a lot at risk, such as:
- Physical health
- Mental health
- Financial burdens
- Social stigma
The Court was skeptical of the state's argument that Constitutional protections begin at conception. The Constitution doesn't provide a definition of a "person." But, it does say that its protections cover those who are "born or naturalized" in the United States. After examining other cases relating to unborn children, the Court concluded that "the unborn have never been recognized in the law as persons in the whole sense."
The Roe v. Wade decision also includes a discussion of the different views on when life begins. Many in the Jewish faith, for example, believe that life begins at birth. But, the prevailing view in the Catholic faith is that life begins at conception. Doctor's views vary, but they tend to lean toward the belief that life begins sometime before birth. But, the Court found that it is not up to the states to decide when life begins:
"[W]e do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake."
However, as we mentioned above, the Court did not agree that the Constitution guarantees an absolute right to an abortion. In other words, 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. Acknowledging that the rights of pregnant people may conflict with the rights of the state to protect potential human life, the Court defined the rights of each party by dividing pregnancy into three 12-week trimesters:
- During a pregnant person's first trimester, the Court held, a state cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
- During the second trimester, the Court held that a state may regulate abortion if the regulations are reasonably related to the health of the pregnant person.
- During the third trimester of pregnancy, the state's interest in protecting the potential human life outweighs the right to privacy. As a result, the state may prohibit abortions unless an abortion is necessary to save the life or health of the pregnant person.
Significance of Roe v Wade
Many think of Roe v. Wade as the case that "legalized abortion." However, that isn't exactly true. What it did was change the way states can regulate abortion, and characterized abortion as something that was covered under constitutional rights of privacy.
It may come as a surprise that Roe did not have much of an impact on the number of abortions performed each year in the United States. According to the Guttmacher Institute, in the years before Roe was decided there were over one million illegal abortions performed in the U.S. annually. After Roe, that number remains around one million, performed legally. Plus, the rate of deaths occurring as the result of abortions dropped dramatically in the years following Roe.
Since the Court's decision in Roe v. Wade, judicial interpretation of the constitution is that abortion is legal. However, after Roe, many abortion opponents have advocated for stricter abortion laws. The opponents haven't been able to ban abortions outright, but have placed limitations on abortions. A number of states have placed restrictions on abortions in certain circumstances, including parental notification requirements, mandatory disclosure of abortion risk information, and restrictions on late-term abortions.
The issue is still a hotbed topic in presidential debates and across the nation. States continue to pass abortion regulations that are often challenged in federal courts. But, few make it to the Supreme Court. This has led many to wonder: Could Roe v. Wade be overturned?
There wasn't much public reaction to Roe when the Supreme Court first released its decision. However, in the decades that followed it became a significant issue in American politics. Some view the Court's decision in Roe v. Wade as "judicial activism," – meaning the judges based their decision on personal views rather than existing law. But, supporters of Roe say it is vital in preserving women's rights.
Many opponents of the decision argue that because the text of the Constitution doesn't explicitly talk about abortion, it should be left up to the states to regulate. Others say that a person should be protected by the Constitution at conception. Under that logic, abortion violates the Constitutional rights of the unborn child. The Supreme Court even recognized the polarizing nature of the abortion issue in its opinion:
"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."
As Justice Harry Blackmun (who wrote the decision in Roe) points out, abortion will never be a simple issue. It remains a hotly debated topic because someone's opinion on it depends on their view of the world, and when they believe life begins.
Roe would not be the last time the Supreme Court addressed abortion rights. In later cases, the court modified some of the frameworks created in Roe but left the privacy right intact. That is, until 2022.
The Supreme Court notably revisited Roe v. Wade in 1992 when reviewing Planned Parenthood v. Casey. In that case, the Court once again upheld a pregnant person's right to choose abortion. But, it changed the framework created in Roe. Instead of requiring states to regulate abortion based on trimester, the Court created a standard based on "fetal viability" - the fetus's ability to survive outside the womb. Viability is usually placed at around seven months (28 weeks), but it can be as early as 24 weeks.
In 2016, the Supreme Court evaluated abortion regulations once again. Texas passed a law in 2013 that placed a series of restrictions on abortion clinics in the state. Among the other requirements, abortion providers had to have "admitting privileges" at a hospital no more than 30 miles away.
Admitting privileges give a doctor the ability to:
- Have their patients admitted to a hospital as if the doctor were an employee there
- Treat their patients how the doctor wishes without the need for approval from another doctor at the hospital
When this requirement took effect, Texas went from having 42 abortion clinics - to just 19.
The case reached the Supreme Court around the time of Justice Antonin Scalia's death. So, there were only 8 justices to hear the case. In a 5-3 decision, the Supreme Court found that states cannot place restrictions on abortion clinics that create an "undue burden" for women seeking an abortion.
June Medical Services v. Gee
In 2020, SCOTUS overturned another admitting privileges requirement in June Medical Services v. Gee. Chief Justice John Roberts joined the liberal justices in a 5-4 decision that struck down a Louisiana abortion statute requiring doctors to have admitting privileges. The decision relied heavily on Hellerstedt, and in both decisions, the court observed that abortion is one of the safest medical procedures available today.
Dobbs v. Jackson Women's Health
Dobbs v. Jackson Women's Health focused on Mississippi's Gestational Age Act, which banned abortions after 15 weeks. Unlike previous challenges to abortion rights, in Dobbs, the state of Mississippi explicitly asked the Supreme Court to overturn Roe v. Wade. A draft version of the court's opinion leaked to the press around a month before the justices handed down their official decision. The opinion released on June 24, 2022, was largely the same as the draft; the justices voted 6-3 to overturn Roe v. Wade. Since then, several states have tightened abortion restrictions to the point that residents cannot access abortion services. Others seem poised to outlaw abortion altogether.