Five-minute digest
Roe v. Wade
Summary
Roe v. Wade came to the Court from Texas, where statutes dating in substance from 1857 made it a crime to procure an abortion except on medical advice to save the mother's life. In 1970 a pregnant woman suing as Jane Roe brought a class action in federal court in Dallas against Henry Wade, the county's district attorney, claiming the statutes were vague and invaded a right of personal privacy. A three-judge district court declared the statutes void but declined to enjoin their enforcement, and both sides appealed. The case was argued in December 1971, reargued in October 1972, and decided on 22 January 1973 together with Doe v. Bolton, a challenge to Georgia's newer statute. The question was whether the Constitution protects a woman's decision to end a pregnancy against a State's criminal prohibition, and if so, how far a State may regulate. Counsel for Roe argued that the liberty and privacy recognized in earlier decisions about marriage, family and contraception reached this decision too. Texas answered that the State has a compelling interest in protecting life from conception, that the unborn are persons within the Fourteenth Amendment, and that the people's elected legislature is the proper body to weigh the competing claims. By a vote of 7–2 the Court affirmed the judgment for Roe. Justice Blackmun's opinion first settled questions of standing and mootness, then surveyed attitudes from antiquity through the Hippocratic Oath, the common law, English and American statutes, and professional associations. It held that the right of privacy, founded in the Fourteenth Amendment's concept of liberty, is broad enough to include the decision, but that the right is qualified and must be weighed against the State's interests in maternal health and in potential life. The Court declined to decide when life begins, held that the word person in the Amendment does not include the unborn, and set out a framework tied to the stages of pregnancy, with viability as the point after which a State could prohibit abortion subject to exceptions. Justice White, joined by Justice Rehnquist, found nothing in the Constitution's language or history to support the judgment and described it as raw judicial power that withdrew from the people and their legislatures a question on which reasonable people differ. Justice Rehnquist added that the record showed no plaintiff suited to the broad rule announced, that a rational-basis test should govern, and that the many state laws in force when the Fourteenth Amendment was adopted show the asserted right is not rooted in the nation's traditions. The library text gives Blackmun's opinion and both dissents, but not the concurrences of Chief Justice Burger and Justices Douglas and Stewart; the opinions' notes are dropped except for Rehnquist's lists of state abortion statutes, which close the file. In 1992 Planned Parenthood v. Casey retained Roe's central holding while discarding its trimester framework, and in 2022 Dobbs v. Jackson Women's Health Organization overruled both decisions; half a century after Blackmun wrote, the decision remains debated.
Top Lessons
Constitutional measurement amid strong convictions
Blackmun opens by acknowledging that philosophy, religion, experience and family values shape every person's view of the subject, and then states that the Court's task is to decide by constitutional measurement rather than by emotion. Whether any court can fully separate the two is a question both the majority and the dissents keep in view.
Finding an unwritten right
The majority admits that the Constitution does not mention privacy, but it draws on a line of decisions that located such a right in several amendments and in the liberty of the Fourteenth Amendment. The dissents reply that this reasoning lacks support in the text and history of the Constitution. The disagreement is over how judges should identify rights the document does not name.
Who weighs the competing interests?
Both opinions agree that weighty interests are at stake on more than one side. The majority holds that the Constitution itself sets limits on how a State may strike the balance; White holds that the weighing belongs to the people and their legislatures, and that a court which takes it over exercises power without warrant.
Tradition and the reach of a ruling
Rehnquist makes two kinds of argument. One is historical: dozens of state laws restricting abortion stood when the Fourteenth Amendment was ratified. The other is about judicial craft: a court should not formulate a rule broader than the facts of the case before it require.
Verified Quotes
Frequently cited
“Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.”
Frequently cited
“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 need not resolve the difficult question of when life begins.”
“I find nothing in the language or history of the Constitution to support the Court's judgment.”
Frequently cited
“As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”
“To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.”
Medical Lens
Part VI of Blackmun's opinion is a history of how the Hippocratic Oath, the common law and nineteenth- and twentieth-century medical and public-health associations treated the question, read here only as a chapter in the history of medical ethics and professional bodies influencing legislation; the record carries no clinical content.