The decision in Roe v. Wade
On January 22, 1973, the United States Supreme Court struck down a Texas law criminalizing abortion and held that a woman has a constitutional right to choose whether to terminate her pregnancy.1 Roe v. Wade placed women’s reproductive choice alongside other fundamental constitutional rights, such as freedom of speech and freedom of religion, by conferring upon it the highest degree of constitutional protection, known as "strict scrutiny."
Finding a need to balance a woman’s right to privacy with the state’s interest in protecting potential life, the Supreme Court in Roe established a framework for evaluating restrictions on abortion. The Court required the state to justify any interference with the abortion decision by showing that it had a "compelling interest" in doing so and that restrictions on abortions performed before fetal viability were limited to those that narrowly and precisely promoted real maternal health concerns. 2 After the point of viability, the state was free to ban abortion or take other steps to promote its interest in protecting fetal life. Even after that point, however, the state’s interest in the viable fetus had to yield to the woman’s right to have an abortion to protect her life and health.
Although a landmark ruling, the Roe decision was consistent with earlier Supreme Court cases recognizing a right of privacy that protects intimate and personal decisions from governmental interference, including those affecting child-rearing, marriage, procreation, and the use of contraception. The decision was far from radical, it was the logical extension of the Court’s decisions on the right to privacy dating back to the turn of the century. In finding that the constitutional right to privacy encompasses a woman’s right to choose whether or not to continue a pregnancy, the Supreme Court continued a long line of decisions that rejected government interference in life’s most personal decisions
The 7-2 decision in Roe had an immediate and profound effect on the lives of American women. Before Roe, it is estimated that "between 200,000 and 1.2 million illegally induced abortions occur[red] annually in the United States." 3 After Roe, abortions were no longer relegated to back alleys, and women instead had strong legal protection for obtaining abortions.
The erosion of Roe’s protections began immediately. Well-funded abortion opponents pressed state and federal lawmakers to enact a wide range of restrictive abortion laws attempting to directly or indirectly reverse Roe’s protection of women’s reproductive choices. Many states adopted requirements that married women involve their husbands in their abortion choice, requirements that young women consult their parents in their abortion decisions, restrictions on abortion coverage in state Medicaid programs and state employee health plans, bans on the performance of abortions in public hospitals, requirements that women wait for a certain period of time, usually 24 hours, after receiving certain state-scripted and biased information before obtaining an abortion ("mandatory delay/biased counseling" laws), and bans on abortion procedures.
Supreme Court decisions post-Roe: chipping away at the right to choose
Lawsuits challenging the constitutionality of these restrictions provided the Supreme Court with numerous opportunities to dilute the fundamental right to choose abortion. It wasn’t long before the Court abandoned full protection for the right. Just three years after Roe, the seven-justice Roe majority was reduced to six in a decision striking down parental consent, spousal consent, and a ban on saline abortions in Planned Parenthood v. Danforth. 4 Four years later, the balance shifted when five Justices held in Harris v. McRae5 that the denial of Medicaid funding for abortion did not "interfere" with women’s rights to make reproductive decisions, and that the state could promote fetal life throughout pregnancy by discriminatory funding. This effectively deprived poor women of their right to choose.
In addition to weakening Roe’s protection for low-income women, the Court acted to compromise young women’s reproductive rights. In Bellotti v. Baird, 6 a plurality of the Court outlined a general scheme that would meet constitutional muster for states imposing parental consent requirements. As a consequence, over 30 states today require either parental notice or consent for a minor seeking an abortion.
While the Court endorsed lesser constitutional protections for the right to abortion for low-income women and minors, a tenuous majority of the Court continued to invalidate restrictions on the rights of adult, non-indigent women, such as the 24-hour waiting period, biased informed consent, and second-trimester hospitalization requirements in City of Akron v. Akron Center for Reproductive Health. 7 The majority Court also continued to adhere to the trimester framework of Roe, under which a woman’s life and health must predominate even after fetal viability, in Colautti v. Franklin8 and Thornburgh v. American College of Obstetricians and Gynecologists. 9
In 1988, President Reagan appointed a new Justice to the Court, leaving many to believe that Roe would be overturned by a new Court majority. Yet, when Webster v. Reproductive Health Services10 was decided in 1989, although Chief Justice Rehnquist’s plurality opinion expressed the view that Roe was wrongly decided, a majority of Justices declined to overrule Roe explicitly, finding that the issue of the validity of Roe itself was not properly before them. The Webster plurality did, however, invite states to pass laws banning abortion to test Roe so that the Court would be able to directly address the issue. Soon thereafter, the territory of Guam and two states, Louisiana and Utah, enacted statutes criminalizing virtually all abortions. These statutes were blocked, albeit with great reluctance, by some federal judges.
After Webster, in Ohio v. Akron Center for Reproductive Health, 11 a six-Justice majority upheld a one-parent notification statute that also contained a provision for a burdensome and potentially lengthy judicial procedure by which a minor could obtain a judge’s permission to bypass the parental notification requirement ("judicial bypass"). In Hodgson v. Minnesota, 12 the Court invalidated as "unreasonable" a statute that required minors to notify both parents, with no judicial bypass option.
In the early 90s, with the retirement of two Justices, the overturning of Roe was a serious threat again. Additionally, anti-choice state legislatures were continuing to pass restrictions on abortion that had already been declared unconstitutional. For example, Mississippi, North Dakota, and Pennsylvania re-enacted mandatory delay and biased consent requirements previously invalidated by the Court in Akron and Thornburgh, and Pennsylvania went beyond these other states by imposing a spousal notice requirement (without a judicial bypass) for married women.
In 1992, when the Supreme Court granted review of a challenge to the Pennsylvania statutes, Planned Parenthood v. Casey, the parties once again asked the Court either to overrule Roe or re-affirm it. Despite the urging of the plaintiffs to retain "strict scrutiny" as the test for abortion regulations, the Court issued an opinion re-affirming Roe’s "core holding"—that states may not ban abortions or interfere with a woman’s ultimate decision to terminate a pregnancy—but eliminating Roe’s trimester framework. In its place, the Court established an "undue burden" standard, which allowed states to regulate abortion prior to viability based on the state’s interest in maternal health and potential life so long as those regulations did not impose an "undue burden." 13 The Court explained,"[a] finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." 14 Under this new standard, the Court upheld Pennsylvania’s mandatory delay/informed consent law, but struck down the spousal notice requirement because it imposed a substantial obstacle for a "large fraction" of married women who would not otherwise notify their husband.
In 2000, in the most important decision since Casey, the Court struck down a Nebraska ban on so-called "partial-birth abortion" in a 5-4 vote. The decision in Stenberg v. Carhart15 held that the Nebraska ban violated the Supreme Court precedents Roe and Casey in two ways. First, the Court held that the Nebraska ban was unconstitutional because it failed to include an exception—required by Roe and Casey—to preserve the health of the woman. Second, the Court held that the ban was written so broadly that it banned the safest and most common procedures used starting as early as 12 weeks of pregnancy and thus imposed an undue burden on a woman’s ability to choose an abortion. Although the decision was heralded as a reaffirmation of the core principle of Roe, the narrow vote, and in particular, Justice Kennedy’s dissent on the issue of the health exception, was cause for alarm.
It is clear that in the years since Roe was decided, there have been cutbacks in the scope of its protection for women’s right to choose abortion. Most significantly, the Court’s 1992 decision in Casey made two profound changes: it reduced the level of judicial scrutiny given to laws that restrict abortion and eliminated Roe’s trimester system, which outlined the changing balance between a woman’s right to choose abortion and the state’s interest in regulating the procedure as a pregnancy progresses. Yet, the Casey decision reaffirmed the central holding of Roe that women have a constitutionally protected right to abortion, which is the basis for abortion rights today. However, as demonstrated by the close vote in Carhart, the right to abortion is in jeopardy, especially if one or more new anti-choice Justices are appointed to the Court. Such an event could shift the current, precarious Court balance, making it more likely that Roe would be overturned.
1 Roe v. Wade, 410 U.S. 113 (1973).
2 "Viability" is the point in pregnancy at which the fetus is able to survive indefinitely outside the woman’s body.
3 Willard Cates, Jr. and Robert W. Rochat, "Illegal Abortions in the United States: 1972-74," 8 FAM. PLAN. PERSP. 86, 92 (1976) (footnote omitted).
428 U.S. 52 (1976).
4 448 U.S. 297 (1980).
5 443 U.S. 622 (1979).
6 462 U.S. 416 (1983).
7 439 U.S. 379 (1979).
8 476 U.S. 747 (1986).
9 492 U.S. 490 (1989).
10 497 U.S. 502 (1990).
11 497 U.S. 417 (1990).
12 505 U.S. 833 (1992).
13 More specifically, the Court stated, "The fact that a law which serves a valid purpose . . . has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause. Casey, 505 U.S. at 874.
14 Casey, 505 U.S. at 877.
15 530 U.S. 914 (2000).