Robbins: A brief history of the Roe v. Wade decision
Recently, conservatives won skirmishes in the deep red states of Alabama and Missouri. Whether they will win the war still remains to be seen.
The war, of course, is on a woman’s right to choose a legal, safe abortion. And that right, as it now exists, relies on the seminal Texas case of Roe v. Wade.
In one fell legislative swoop, what the Alabama legislature did, voting along strict party lines, was to outlaw nearly all abortions. Under the law, doctors who perform abortions may be subject to prison terms of up to 99 years. The law provides for few exemptions; not even pregnancies suffered on account of rape or incest are exempted. The new Alabama law is presumed by many — and acknowledged by at least some of those involved — to be intended to fly straight to the United States Supreme Court to challenge Roe v. Wade.
A blink after the new Alabama law was passed, Missouri joined in, passing its own deeply restrictive abortion law that bans all abortions after the eighth week of gestation. The problem is, opponents argued, many — if not most — women don’t realize they are pregnant for eight weeks or more. Like the new Alabama prohibition, the Missouri law is intended as a direct affront to Roe v. Wade.
Two more bits of table-setting before we get on to the grit and gristle of the Texas case. First, it is worth noting that the states of Missouri and Alabama are just the latest to dive into the shallow wading pool of the abortion debate.
They join at least another nine states that have passed restrictions on abortions this year. Most of these states are, not surprisingly in our politically divided nation, bright red, the vast majority of which have Southern or Rust Belt accents. The other thing to note is in survey after survey, the most that can be said is that Americans are divided on the subject of unfettered access to abortions and the vast majority support a woman’s right to terminate a pregnancy as a result of rape.
How we got here
As noted above, much of the blustering, posturing and spittle-throwing in the statehouses of Alabama and Missouri is meant to take on Roe v. Wade. All right then. How did we get here and what did Roe decide?
First of all, there is no actual “Roe.” There was a, in fact, a “Roe” but that was not her true name. The use of the name “Roe” is part of a legal fiction employed at times where it is intended to protect a party’s true identity and, at other times in what is referred to as “Doe pleadings,” where a “John Doe” or “Jane Roe” is used as sort of a placeholder in litigation until the true identity of a party can be discerned.
The true Jane Roe was Norma Leah Nelson McCorvey, known to history by her legal pseudonym. McCorvey died in 2017.
“Wade” was Henry Menasaco Wade, the district attorney of Dallas County from 1951 to 1987, who enforced a Texas law that prohibited abortion, except to save a woman’s life. Wade died in 2001. Of at least passing interest — besides his place in legal history in the abortion debate, before the Roe case came along, Wade participated in the prosecution of Jack Ruby for the killing of Lee Harvey Oswald, John Kennedy’s assassin.
In 1969, McCorvey, then in her early 20s, sought to terminate an unwanted pregnancy. She had previously given birth twice and, owing to her difficult, impoverished circumstances, had given up both children for adoption. After trying unsuccessfully to obtain an illegal abortion, McCorvey took on Texas.
Linda Coffee and Sarah Weddington were a pair of Texas attorneys who were interested in challenging anti-abortion laws. In 1970, the attorneys filed a lawsuit on behalf of McCorvey and all the other women “who were or might become pregnant and want to consider all options,” against Wade, the district attorney in the county where McCorvey lived.
The legal journey
To the surprise of at least some, in June 1970, a Texas district court ruled that the state’s abortion ban was illegal because it violated a constitutional right to privacy. The court’s decision notwithstanding, Wade declared that he’d continue to prosecute doctors who performed abortions. The case was appealed to the U.S. Supreme Court. Meanwhile, McCorvey gave birth and put the child up for adoption.
Up to the Supremes, it went. The case was argued before the court in mid-December, 1971, and re-argued in mid-October of the next year.
On Jan 22, 1973, the Supreme Court, in a 7-2 decision, struck down the Texas law, effectively legalizing a woman’s right to choose nationwide. In the majority opinion written by Justice Harry Blackmun (a Republican appointed by Richard Nixon; in fact 6 of the 7 justices in the majority were Republican appointees), the court declared that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment.
The court divided pregnancy into three trimesters. In the first trimester, the court declared, the choice to end a pregnancy was solely up to the woman. In the second, the government could regulate abortion (but not ban it) in order to protect the mother’s health. In the third trimester, the state could prohibit abortion to protect a fetus that could survive on its own outside the womb, except when a woman’s health was in danger.
The laws of 46 states were immediately impacted by the court’s ruling.
Since 1973, Roe has been the law of the land. Whether it will be turned on its head by any of the recent state enactments remains a spectacle to be seen.
McCorvey never reunited with her “Roe” daughter. In fact, it is unclear whether the now nearly 50-year-old woman knows her origins or her unusual place in American legal history.
Fasten your seat belts. In these Too Divided States of America, this one is bound to be a bumpy, contentious ride.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.