The Right to Privacy: Roe v. Wade

by Jen Nedeau

Published October 04, 2008 @ 04:20PM PT

Before the landmark decision of Roe v. Wade in 1973, which legalized the ability for a woman to choose to have a safe, legal abortion, women had very few choices when it came to handling unplanned pregnancies. In rare cases, women could get a therapeutic abortion when the pregnancy jeopardized their life, but they would have to fly to places such as Puerto Rico, Cuba or London to receive it. Since this option wasn't available to most women, those wishing to terminate unplanned pregnancies resorted to back-alley procedures and do-it-yourself abortions. Additionally, the Jane collective, formed in 1969, was in essence an abortion referral service. Members of the collective hung posters around Chicago stating: "Pregnant, don't want to be? Call Jane at 643-3844." Women seeking an abortion called the number and left messages that were then answered by a "Call-Back-Jane" who would help the pregnant woman find a pre-screened abortion provider group. With these and other methods, however, many women died as a result botched procedures.

Leading up the 1973 decision, there were various moments which helped pave the road for further acceptance of reproductive rights for women. In 1965 with Griswold v. Connecticut, the Supreme Court had to nullify a Connecticut statute prohibiting the use of birth control by married persons, which argued that the right to marital privacy protects the access of married couples to contraceptives. In 1972, with Eisenstadt v. Baird, the Court struck down a law prohibiting the distribution of birth control to unmarried adults. Still, at the time of the Roe v. Wade decision, there was still limited access to contraception and virtually no access to a safe, legal abortion. Thus, when the seven-to-two decision struck down Texas abortion laws and by extension most abortion laws in the United States, saying that they violated a constitutional right to privacy under the Due Process Clause of the Fourteenth Amendment - a revolutionary decision had been made.

Conservative Justice Harry Blackmun delivered the opinion of the Court and was joined by Chief Justice Burger and Justices Douglas, Brennan, Stewart, Marshall and Powell. The decision, written by Blackmun, stated that "a woman's right of personal privacy includes the abortion decision" and held that a woman, with the help of a doctor, could choose abortion within the first trimester of pregnancy without restriction, but that the state can impose restrictions in second and third trimesters when it comes to protecting maternal health or when the fetus is a viable human being.

Attorneys Linda Coffee and Sarah Weddington filed the case in a U.S. District Court in Texas on behalf of Norma L. McCorvey, known in the case as Jane Roe. The defendant in the case was the district attorney of Dallas County, Texas, Henry B. Wade. Roe sought a declaratory judgment saying that the Texas criminal abortion statutes were unconstitutional, as well as an injunction restraining the defendant from enforcing the statutes. She stated that she was unmarried and pregnant, she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions," but 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. Roe claimed that the Texas statutes were unconstitutional because they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. A modification to Roe's complaint allowed the case to be filed "on behalf of herself and all other women" in similar situations.

In the final ruling, Blackmun, writing on behalf of the Court declared, "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."

A major critique of the ruling is that it didn't declare whether or not a fetus is considered a person. The case did assert, however, that if the fetus is defined as a person for purposes of the Fourteenth Amendment then the fetus would have a specific right to life. In the end, the Court determined that the original intent of the Constitution (up to the enactment of the Fourteenth Amendment in 1868) does not include the unborn.

Furthermore, the Court's determination of whether a fetus can enjoy constitutional protection was separate from the idea of when life begins: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

In a case titled Doe v. Bolton, decided on the same day as Roe v. Wade, the Supreme Court also found that abortion must be available when needed to protect a woman's health. The Court continued to uphold the Roe v. Wade precedent and support reproductive rights with the 1976 case, Planned Parenthood of Central Missouri v. Danforth. There the Court ruled against a Missouri statute that would force a married woman to obtain her husband's approval before getting an abortion and ruled against a written parental consent requirement for minors.

While choosing to have or not have abortion is still considered a fundamental right to privacy by many women, in recent years, the legal precedent of Roe v. Wade has been threatened by various actions in the courts and legislatures. Notable anti-choice cases include: Maher v. Roe, Harris v. McRae, Webster v. Reproductive Health Services, Planned Parenthood v. Casey, Stenberg v. Carhart, NOW v. Scheidler and Gonzales v. Carhart. These have all affected the legal standard and presented opportunities for the Court to consider overturning Roe v. Wade.

The Bush Administration also led serious efforts seeking to undermine reproductive rights. In 2003, Congress passed and Bush signed the "Partial Birth Abortion Ban," which is the first federal ban on an abortion procedure since Roe v. Wade was decided. In 2004, the House of Representatives passed the Unborn Victims of Violence Act of 2003, which for first time established in federal law a fetus as a legal "person," with individual rights separate from those of the pregnant woman. These actions, in addition to a rise in violence committed against abortion clinics, have created a perilous state for the future security of women who earned a right to choose with Roe v. Wade.