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A Case of Privacy
How the U.S. Supreme Court reached the decision that sparked a quarter-century of controversy
From Jerry Goldman
Professor of political science, Northwestern University
Special to CNN Interactive
America's concerns over abortion -- whether and under what circumstances it should be allowed -- was catapulted into controversy on January 22, 1973. On that day, the U.S. Supreme Court declared unconstitutional, by a vote of 7-2, a Texas law prohibiting an abortion except for the purpose of saving a woman's life.
The decision -- reached after two presentations before the court -- invalidated abortion laws in 46 states. Few rulings have generated as much sustained criticism or fervent support as Roe vs. Wade.
The court declared:
- In the first three months of pregnancy, the abortion decision must be left to the woman and her physician.
- In the interest of protecting a woman's health, states may restrict but not prohibit abortions in the second three months, or trimester, of pregnancy.
- In the last three months of pregnancy, states may regulate -- or even prohibit -- abortions to protect the life of the fetus, except when medical judgment determines that an abortion is necessary to save the life of the mother.
A shaky start
A L S O : Streaming audio of oral arguments in Roe vs. Wade
"Jane Roe," later identified as Norma N. McCorvey, had sought an abortion in Texas, but since her life was not at risk, she was unable to obtain a legal one in that state. She eventually opted to have the child, and gave it up for adoption.
Newly minted lawyers Sarah Weddington and Linda Coffee decided to challenge the constitutionality of the Texas law, aiming to establish a new constitutional right allowing women to control their own bodies. Roe became the lead plaintiff in their class-action lawsuit, and they represented her.
The U.S. District Court for the Northern District of Texas declared Texas's abortion law unconstitutional but declined to grant injunctive relief to the plaintiffs. Roe et al appealed the court's injunctive ruling, while Wade cross-appealed, challenging the lower court's ruling that the law was unconstitutional.
Weddington argued Roe's case before the Supreme Court. She faced seven, rather than nine, justices because two of them had recently retired. In fashioning her argument to justify striking down the Texas law, Weddington advanced many reasons, but none revealed the precise constitutional issues at stake.
When Justice Potter Stewart asked her to formulate her constitutional argument, Weddington reached into a grab bag of provisions. Although poised in delivery, Weddington seemed at a loss as to where in the U.S. Constitution she could peg her argument.
Weddington's opponent, Jay Floyd, started off on the wrong foot, and appeared to go downhill from there. He began, "It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.". None of the justices seemed amused.
The justices initially voted to strike down the Texas law, and Justice Harry A. Blackmun was chosen as the spokesman for the majority. His opinion, however, failed to persuade his colleagues on the court.
Moreover, some of the justices were miffed by the choice of Blackmun as spokesman.
Given the uncertainty among the justices, the testiness of their egos and the appointment of two new members -- William H. Rehnquist and Lewis F. Powell Jr. -- the court decided to hear a second argument on Roe vs. Wade, and scheduled it for October 11, 1972.
Attorneys argue case a second time
By then, Weddington had sharpened her argument. But so did her new opponent, Robert C. Flowers.
Weddington faced tough questions from the justices on the constitutional status of the unborn fetus. Flowers came under strong questioning from justices Stewart and Thurgood Marshall as to when life begins.
Once again, the majority-opinion assignment went to Blackmun.
His carefully crafted opinion failed to identify a specific U.S. constitutional guarantee to justify the court's ruling. Instead, he based the decision on the right to privacy protected by the due process clause of the Constitution's 14th Amendment. In effect, the court was enforcing a right that the Constitution did not specifically articulate.
A wave of criticism
Critics voiced their objections immediately. The dissenters -- justices Rehnquist and Byron R. White -- asserted what other people have frequently repeated since the decision: The court's judgment was directed by its own dislikes, not by any constitutional compass.
In the absence of any guiding principles, the critics declared, the justices in the majority simply substituted their views for the views of the state legislatures, whose abortion regulations they invalidated.
Academic critics also pounded the opinion, noting that the court had struck down legislation in the absence of any expressed constitutional provision or history.
A key question
A L S O : Full text of Supreme Court opinion in Roe v. Wade (1973)
Abortion-rights proponents had pegged their claims on a prominent Supreme Court decision, Griswold v. Connecticut (1965).
In Griswold, a seven-member court majority fashioned a right to marital privacy from several constitutional provisions, then used this privacy right to strike down a seldom-enforced state law that made the use of birth control devices a crime.
The abortion issue surfaced in the oral argument in the Griswold case.
Near the end of the second day of debate, Justice Hugo L. Black asked Professor Thomas Emerson, who sought to invalidate the Connecticut law, a question that foreshadowed the abortion maelstrom eight years later.
"With reference to all these things we've been talking about -- privacy and so forth -- would we invalidate all laws punishing people for bringing about abortions?"
Emerson responded that one issue (contraception) had nothing to do with the other (abortion).
A quarter-century later
In the 25 years since the Roe vs. Wade decision, a bare majority of the court continues to reaffirm the initial decision.
It did so most recently in 1992 in Planned Parenthood vs. Casey. At the same time, the justices have tolerated additional government restrictions on abortion procedures. It appears that divisions on the court still run deep.
Blackmun retired from the court in 1994. In a rare television interview with ABC News, Blackmun insisted that "Roe versus Wade was decided ... on constitutional grounds."
It was as if Blackmun were trying, by sheer force of will, to turn back 25 years' worth of stinging objections to the opinion he crafted.
Jerry Goldman is a political scientist at Northwestern University in Evanston Illinois. He is the creator of the OYEZ Project, an online multimedia resource on the Supreme Court and its constitutional decisions. Goldman is co-author of "The Challenge of Democracy," Houghton Mifflin Co., a textbook on American government.
Listen to Roe vs. Wade Oral Arguments / Read Full Text of the Decision
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