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ROE v. WADE (1973)

Throughout most of the history of the United States, the Supreme Court has been that "one great anchor," a force reminding Americans of fundamental principles and generally slowing change. But sometimes the Court gets ahead of public opinion—or at least a major portion of it. A case in point is the Courts intervention into a matter that was under state jurisdiction since the1820s. Having extended the privacy rights developed in Griswold in 1965, the Court would only a few years later articulate another of those uncnumerated rights protected by the Ninth Amendment, a woman's right to choose to abort a pregnancy. The Court's bold stand in Roe v. Wade remains a point ot deep emotional contention more than two generations after its opinion was heard.

Norma McCorvey was a down-on-her-luck, twenty-five-year-old Texan in 1969 when a passing romantic attachment left her pregnant, single, and poor. Rebuffed at every turn by doctors and clinics in her efforts to obtain an abortion, she finally turned to the law. One of the doctors McCorvey had consulted referred her to two recent graduates of the Texas Law School, Linda Coffee and Sarah Weddington, themselves pioneers, having been two among only five female students in the law school. Their pioneering determination lead finally in 1973 to the U.S. Supreme Court in Roe et. al. v. Wade, District Attorney of Dallas County.

State restrictions on abortion had developed steadily over the previous century, but by 1900, all states had them in place. By the 1960s, regulations varied, from New York, where there were no restrictions at all for the first twenty weeks of pregnancy, to the very strict rules in Texas, where it was a crime to perform an abortion unless the purpose was saving the life of the mother. By the time of Roe, about one in four or five married women had experienced at least one abortion, and as many as 90 percent of premarital pregnancies ended in abortions—mostly illegal.

State regulation was a problem for physicians because most guidelines were too vague to help doctors in making judgment calls; judging wrongly could result in criminal prosecution. Much of the legislative lobbying to relax the restrictions was done by state medical associations and individual physicians.

Certainly, doctors were not, however, the people most concerned with this issue. It was women in general and those of child-rearing age in particular who had the most to gain or lose in the matter. Norma McCorvey was distinctly one such woman. Given the social currents of the 1960s, the focus of what came to be known as the pro-choice movement shifted emphatically from doctors to women. Though Coffee and Weddington drew on a wide range of constitutional strategics to undergird their case, the brunt of their argument rested on the Fourteenth Amendment as interpreted in Griswold v. Connecticut. That case established a right to privacy—especially marital privacy and the right to decide whether to conceive and bear children. By extension, that right would include a woman's choice to carry a fetus to full term, or not. Roe v. Wade, however, turned not so much on the question of whether a woman has an individual and personal right to an abortion, but, rather, if under the U.S. Constitution the state has the authority to allow her to do so.

By the late 1960s, medical science had established that abortions during the first trimester were statistically safer than childbirth itself. The state of Texas claimed, however, that it had a compelling interest in protecting the rights of the unborn and that such rights began at the moment of conception.

The Court claimed that an unborn fetus did not come within the definition of a person as understood in the Constitution. The question of when—if ever—a fetus becomes a person remained undecided since, said Justice Harry A. Blackman for the Court, "the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." But what the Court did decide, with Blackman speaking for a 7—2 majority, was that the "right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

Nevertheless, Blackman continued, medical vicissitudes being what they arc, at a certain point the state docs have a compelling interest in both the safety of the mother and the welfare of the yet unborn. The first interest permits the imposition of some medical restrictions after the first trimester; and the second after the fetus becomes "viable," that is, capable of life outside the womb.

The Court's ruling was as controversial as Dred Scott in the 1850s and Brown v. Board of Education in the 1950s. Even today, it is still a bitter pill the vocal opponents of abortion cannot digest. On repeated occasions, the Court has not backed away from Blackman's formulation, though it has not liberalized it either. As for Norma McCovey, she gave birth to a baby girl, and by prior arrangement gave it up immediately for adoption.

 


 


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