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Roe v. Wade is a landmark Supreme Court decision that guaranteed a person's right to an abortion under the protection of the right to privacy. It was a controversial case and ruling because it articulated the right to abortion as a fundamental right, putting it in the same category as the right to marry, procreate, or decide how to parent one’s children.
Before 1973, there was no mention or discussion of abortion rights in federal documents, and the states had the authority to make decisions on this subject so it might be confusing to figure out the exact bases on which the case was argued and tried. Norma McCorvey’s case was a conjecture of events waiting to happen, and although now we know some facts were inaccurate, it had all the elements needed for a Supreme Court case. Under the pseudonym of Jane Roe, McCorvey claimed that she suffered a sexual assault that resulted in an unwanted pregnancy, and was denied access to an abortion under Texas law that stated: “If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years” (2A. TEXAS PENAL CODE. Art. 1191, at 429 (1961)).
Following that, in March of 1970, Jane Roe files a suit against the Dallas County District Attorney, stating that Texas’ abortion laws are unconstitutional and a violation of her rights guaranteed under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The case is presented to a three-judge panel in the Federal District Court in Dallas that finds that Texas abortion laws are unconstitutional as they infringe on rights protected by the Ninth and Fourteenth Amendments.
While the Ninth Amendment, simply put, states that people have other fundamental rights other than the ones listed in the first eight Amendments, the Fourteenth Amendment is a little more complex. The act was adopted in 1868 following the Civil War and had the purpose of protecting the rights of formerly enslaved people in the South. The Equal Protection Clause in the first section has been invoked in significant Supreme Court rulings including Brown v. Board of Education in 1954, Reed v. Reed in 1971, University of California v. Bakke in 1978, and many others through the years. However, which rights fall under this protection is a big grey area, and another clause of the Amendment is used to establish an array of constitutional rights like the ‘right to privacy’. The Due Process Clause states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (Amendment XIV, Section 1).
If it is assumed that states cannot enforce laws that restrict a citizen’s rights and there are rights other than the ones expressed in the Amendments, it stands to reason that the illegality of abortion can be seen as unconstitutional as it infringes on a person’s ‘right to privacy’. While this right is also not stated anywhere in the Constitution, a legal precedent had been set by Griswold v. Connecticut in 1965. The ruling, in this case, guaranteed access to contraception methods for married couples, something made illegal in Connecticut in 1879. The ‘right to privacy’ is found in the penumbras of rights that are enumerated in the First, Third, and Fourth Amendments. Following Griswold v. Connecticut, the substantive due process jurisprudence was expanded to include a range of liberties like the right to interracial marriage (Loving v. Virginia, 1967), the right of unmarried people to access contraceptives (Eisenstadt v. Baird, 1972), and even the right of same-sex couples to marry (Obergefell v. Hodges, 2015). (Chapman)
In April of 1971, the Supreme Court agrees to hear Roe v. Wade and Doe v. Bolton, a similar case in Georgia. The better-known Roe v. Wade was argued twice, once in December 1971, and again in October 1972, after William Rehnquist and Lewis Powell, Jr. are sworn in as associate justices of the Supreme Court. The initially attempted argument was that Roe had a constitutional right to abortion, but that would not stand as there is no mention of such rights in the Constitution or other documents that contribute to the protection of fundamental rights. The real issue in this case, and others that attempted to reach the Supreme Court claiming the right to abortion, wasn’t whether or not one can make decisions regarding abortion or have agency over their body, but whether that right can be restricted when there is the life of an unborn child at stake. Over the two years, this evolved into the larger issue of abortion as a constitutional right, since Roe already delivered the child, and there was no time-sensitive case depending on this ruling, but everyone involved felt the issue has to be addressed. Substantive due process is invoked as the underlying principle of the ‘right to privacy’. Since the element of privacy is present in some form in locational privacy, freedom of thought, and decisional privacy, the right to act on one’s private decisions, concerning reproductive health, is being unconstitutionally oppressed by laws like the ones in Texas. The decision in Eisenstadt v. Baird that people have a right to “privacy about matters so fundamental as the right to decide whether to bear or beget a child” was also instrumental to Roe’s arguments and the Court’s decision.
On the basis of abortion being a purely private matter, the Supreme Court includes the further organization of this right by trimester with abortions being completely legal during the first 13 weeks of pregnancy and rules that the state cannot interfere in one’s access to these services.
Such were the historical circumstances of Roe v. Wade. Although this case still causes a lot of controversy and debate about the legality of the Supreme Court's decision, it is a significant historical event that contributed to the expansion of women's rights.
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