In 1970 Jane Roe (a pseudonym for the unmarried, pregnant woman in the case) filed a class action suit “on behalf of herself and all other women similarly situated” in a U.S. District Court in Dallas, Texas, against Henry Wade, the District Attorney of Dallas County. She wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions." She was unable, however, to obtain a legal abortion in Texas because Texas law, typical of laws in effect at that time in many states, made it a felony criminal offense to obtain an abortion unless the mother’s life was threatened by the pregnancy. She stated that she could not afford to travel to another state where she could obtain a legal abortion under safe conditions. She sought a declaratory judgment that the Texas law was unconstitutional and an injunction restraining the District Attorney from enforcing the law. A three-judge District Court held that “the fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment through the Fourteenth Amendment" and that “the Texas abortion law was void on its face because it was unconstitutionally vague and constituted an overbroad infringement of plaintiff's Ninth Amendment rights.” However, that court declined to issue the requested injunction. Roe, et.al. then appealed the District Court’s judgment denying the injunction directly to the U.S. Supreme Court. At the same time, the District Attorney cross appealed to the U.S. Supreme Court the District Court’s judgment declaring Texas’ abortion law unconstitutional.
The Court considered the following question:
Does a state law that outlaws abortion unless the life of the mother is endangered by the pregnancy violate the woman’s constitutional rights under the Ninth and Fourteenth Amendments?
By a 7-2 vote, the U.S. Supreme Court upheld the District Court’s judgment declaring the Texas abortion law unconstitutional. The Court also ruled that it was unnecessary for it to decide if the District Court was wrong in not issuing an injunction preventing the state from enforcing its abortion law because the Court reasoned that the state would give full recognition to the fact that the Supreme Court had declared its abortion law unconstitutional. Justice Harry Blackmun wrote the opinion of the Court. Among other things, he discusses the right of privacy relied on by the lower court in making its decision: “[Although] the Constitution does not explicitly mention any right of privacy … the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. … This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. … 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.” He also addresses the issue of whether a fetus is a “person” within the meaning of that word in the Fourteenth Amendment. Blackmun writes: “The Constitution does not define ‘person’ in so many words. … [T]he use of the word is such that it has application only post-natally. … [This] persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn. … In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. … In short, the unborn have never been recognized in the law as persons in the whole sense.”
Blackmun summarizes what has become known as “the Trimester Test”: “A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment. a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Justice Byron White dissented and wrote: “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”
Justice William Rehnquist also dissented and wrote: “I have difficulty in concluding, as the Court does, that the right of ‘privacy’ is involved in this case. … The fact that a majority of the States, reflecting after all the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication … that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Rehnquist concludes his dissenting opinion in this way: “The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the state may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.”
- The Oyez Project: Oral Argument and Oral Reargument, Roe v. Wade (1971 and 1972)
- TexasBar.com: Texas Legal Legends, An Interview with Sarah Weddington
- University of Georgia School of Law: Roe v. Wade: 25 Years Later, presented by Sarah Weddington
- University of Georgia School of Law: “Some Leaders are Born Women,” presented by Sarah Weddington