Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States generally protects a pregnant woman's liberty to choose to have an abortion. The decision, which struck down many U.S. federal and state abortion laws, fueled an ongoing debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. It also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication.
The case was brought by Norma McCorvey—known by the legal pseudonym "Jane Roe"—who in 1969 became pregnant with her third child. McCorvey wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother's life. Her attorneys, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. A three-judge panel of the U.S. District Court for the Northern District of Texas ruled in her favor and declared the relevant Texas abortion statutes unconstitutional. The parties appealed this ruling to the Supreme Court of the United States.
On January 22, 1973, the Supreme Court issued a 7–2 decision holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion. But the Court also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life. The Court resolved these competing interests by announcing a trimester timetable to govern all abortion regulations in the United States. During the first trimester, governments could not regulate abortion at all, except to require that abortions be performed by a licensed physician. During the second trimester, governments could regulate the abortion procedure, but only for the purpose of protecting maternal health and not for protecting fetal life. After viability (which includes the third trimester of pregnancy and the last few weeks of the second trimester), abortions could be regulated and even prohibited, but only if the laws provided exceptions for abortions necessary to save the "life" or "health" of the mother. The Court also classified the right to abortion as "fundamental", which required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the most stringent level of judicial review in the United States.
The Supreme Court's decision in Roe was among the most controversial in U.S. history. Anti-abortion politicians and activists sought for decades to overrule the decision. Despite criticism of Roe, the Supreme Court reaffirmed its “central holding” in its 1992 decision Planned Parenthood v. Casey, although Casey overruled Roe's trimester framework and abandoned Roe's "strict scrutiny" standard in favor of a more malleable “undue burden” test.
On June 24, 2022, the Supreme Court overturned Roe in Dobbs v. Jackson Women's Health Organization.
Background
History of abortion laws in the United States
In 1821, Connecticut passed the first state statute banning abortion in the United States. In 1868, abortion was not legal before quickening in 27 out of all thirty-seven states. Altogether, 30 of the thirty-seven states and six of the ten U.S. territories had codified laws which restricted abortion along with the Kingdom of Hawai'i where abortion had once been common. Every state had abortion legislation by 1900.
In the United States, abortion was sometimes considered a common law offense before specific statutes were made against it. In all states throughout the 19th and early 20th century, pre-quickening abortions were always considered to be actions without a lawful purpose. This meant that if the mother died, the individual performing the abortion was guilty of murder. This aspect of common law regarded pre-quickening abortions as a type of inchoate felony. Negative liberty rights from common law do not apply in situations caused by consensual or voluntary behavior, which allowed for abortions of fetuses conceived in a consensual manner to be common law offences. The majority opinion for Roe v. Wade authored in Justice Harry Blackmun's name would later claim that the criminalization of abortion did not have "roots in the English common-law tradition".
One purpose for banning abortion was to preserve the life of the fetus, another was to protect the life of the mother, another was to create deterrence against future abortions, and another was avoid injuring the mother's ability to have children. Judges did not always distinguish between which purpose was more important. Rather than arresting the women having the abortions, legal officials were more likely to interrogate them to obtain evidence against the individual doing the abortions. This law enforcement strategy was a response to juries which refused to convict women prosecuted for abortion in the 19th century. In 1973, Justice Harry Blackmun's opinion stated that "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage".
By 1971, elective abortion on demand was effectively available in Alaska, California, Washington, D.C., Washington state, Hawaii, and New York. Some women traveled to jurisdictions where it was legal, although not all could afford to. In 1971, Shirley Wheeler was charged with manslaughter after Florida hospital staff reported her illegal abortion to the police. Wheeler was one of few women who were prosecuted by their states for abortion. She received a sentence of two years probation and as an option under her probation, chose to move back into her parents' house in North Carolina. The Playboy Foundation donated $3,500 to her defense fund and Playboy magazine denounced her prosecution. The Boston Women's Abortion Coalition raised money and held a rally where attendees listened to speakers from the Women's National Abortion Action Coalition (WONAAC). Her conviction was overturned by the Supreme Court of Florida.
History of the case
Sarah Weddington recruited Linda Coffee to help her with abortion litigation. Their first plaintiffs were a married couple; they joined after the woman heard Coffee give a speech. The intended suit would state abortions were medically necessary for the woman. The woman had a neurochemical disorder and it was considered medically necessary that she not give birth or raise children, yet they did not want to abstain from sex, and contraception might fail. The attorneys were concerned about standing since the woman was not pregnant. Weddington later wrote that they "needed to find a pregnant Texas woman who wanted an abortion and would be willing to be a plaintiff." They also wanted to increase the likelihood that the panel selection would help them win in court. They wanted to present their case to three-judge panel which included a judge they thought would be sympathetic, which was only a possibility by filing a case in Dallas. If either of the two cases they filed in Dallas were assigned favorably, they intended to ask for the other one to be consolidated with it.
Ordinarily, lawyers are not allowed to directly solicit clients without any prior relationship, but McCorvey's situation qualified for an exception in the no solicitation rule which allows lawyers to solicit new clients for public interest cases. McCorvey, according to a sworn statement made in 2003, asked if she had what was needed to be part of the Weddington and Coffee's lawsuit. She recounted being told, "Yes. You're white. You're young, pregnant, and you want an abortion." Both McCorvey's whiteness and her lower social class were crucial factors in the attorneys' choice to have her as their plaintiff.
McCorvey also recounted that the lawyers asked if she thought abortion should be legal. McCorvey said she did not know. Weddington told her, "It's just a piece of tissue. You just missed your period." This convinced McCorvey that abortion should be legal. She agreed to let them represent her under the impression that she would be able to eventually get a legal abortion. She smoked an illegal drug and drank wine so she would not have to think about her pregnancy. McCorvey gave birth to a daughter at Dallas Osteopathic Hospital on June 2, 1970; the baby was adopted by a couple in Texas.
In 1970, Coffee and Weddington filed Roe v. Wade as a lawsuit in the U.S. District Court for the Northern District of Texas on behalf of McCorvey under the legal pseudonym "Jane Roe", and they also filed Does v. Wade on behalf of the married couple. The defendant for both cases was Dallas County District Attorney Henry Wade, who represented the State of Texas. Weddington later stated that she "saw Roe as part of a much larger effort by many attorneys" whose collective interests she represented. James H. Hallford was a physician who was in the process of being prosecuted for performing two abortions. The Court allowed him to join the suit as a physician-intervenor on behalf of Jane Roe.
One of the cases was assigned to a panel of judges which included Judge Sarah T. Hughes, who they thought would be sympathetic, and the cases were consolidated. In accordance with the Court's rules, two of the judges hearing the consolidated case were assigned on the basis of their judicial district, and the third judge on the panel was a circuit court judge chosen by the appellate court's Chief Justice.
The consolidated lawsuit was heard by a three-judge panel consisting of district court judges Sarah T. Hughes and William McLaughlin Taylor Jr. and appellate judge Irving Loeb Goldberg of the U.S. Court of Appeals for the Fifth Circuit. Hughes knew Coffee, who clerked for her from 1968–1969. Additionally, the backgrounds of two other judges also gave Weddington and Coffee hope they would be successful. On June 17, 1970, the three judges unanimously ruled in McCorvey's favor and declared the Texas law unconstitutional, finding that it violated the right to privacy found in the Ninth Amendment. The court relied on Justice Arthur Goldberg's 1965 concurrence in Griswold v. Connecticut. Yet the Court also declined to grant an injunction against enforcing the law, and ruled against the married couple on the basis that they lacked standing. Since Wade said he would continue to prosecute people for performing abortions, the lack of an injunction meant that McCorvey could not get an abortion.
Hearing the case
Postponement
Roe v. Wade reached the Supreme Court when both sides appealed in 1970. The case continued under the name Roe v. Wade instead of being switched to Wade v. Roe. The justices delayed taking action on Roe and a closely related case, Doe v. Bolton, until they had first decided certain other cases. One case they decided first was Younger v. Harris. The justices felt the appeals raised difficult questions on judicial jurisdiction.
Another case was United States v. Vuitch, in which they considered the constitutionality of a District of Columbia statute which banned abortion except when the mother's life or health was endangered. The Court upheld the statute on the grounds that the word "health" was not unconstitutionally vague and placed the burden of proof concerning dangers to the life or health of the mother on the prosecutor instead of on the person who had performed the abortion.
Justice William O. Douglas wrote a lengthy dissenting opinion to this case. He argued that the right to marital privacy and the limitation of family size from Griswold v. Connecticut also applied here, although he acknowledged that "on the other side is the belief of many that the fetus, once formed, is a member of the human family and that mere personal inconvenience cannot justify the fetus' destruction." He also challenged the majority opinion with a series of hypothetical questions asking whether "health" might also include the stigma of having an illegitimate child, anxiety from the pregnancy being unwanted, the physical work of raising a child, the financial drain from the added expense of another child, and far off health risks that may never actually materialize in a similar fashion to how risks were warded off with prophylactic appendectomy. Douglas's dissent made a similar legal argument to the one used two years later in Roe v. Wade. The following day after their decision was announced, the court voted to hear both Roe and Doe.
According to Blackmun, Stewart felt the cases were a straightforward application of Younger v. Harris, and enough justices agreed to hear the cases in order to review whether they would be suitable for federal as opposed to only state courts. This sort of review was not about the constitutionality of abortion and would not have required evidence, witnesses, or a record of facts. The oral argument was scheduled by the full Court for December 13, 1971. Before the Court could hear the oral argument, Justices Hugo Black and John Marshall Harlan II retired. Chief Justice Warren Burger asked Justice Potter Stewart and Justice Blackmun to determine whether Roe and Doe, among others, should be heard as scheduled. They recommended that the Court continue on as scheduled.
Oral argument
As she began speaking for the oral argument, Sarah Weddington was unaware that the Court had decided to hear the case in order to decide which courts had jurisdiction to hear it rather than as an attempt to overturn abortion laws in a broad ruling. She began by bringing up constitutional reasons why the Court should overturn Texas's abortion law, but Justice Stewart asked questions directed towards the jurisdiction question instead. Weddington replied that she saw no problem with jurisdiction and continued to talk about a constitutional right to abortion. Overall, she spent between 20 and 30 minutes discussing jurisdiction and procedure instead of constitutional issues.
In his opening argument in defense of the abortion restrictions, attorney Jay Floyd made what was later described as the "worst joke in legal history". Appearing against two female lawyers, Floyd began, "Mr. Chief Justice and may it please the Court. It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word." His remark was met with cold silence; one observer thought that Chief Justice Burger "was going to come right off the bench at him. He glared him down."
McCorvey did not attend either of the oral arguments along with her two lawyers. After talking McCorvey out of getting an illegal abortion and getting her name signed on an affidavit for the lawsuit, Weddington did not speak again with McCorvey until four months after Roe was decided.
Initial discussions
The judicial replacements
After the first argument session, Burger assigned the task of writing the Court's opinions for both Roe and Doe to Blackmun. Douglas suggested to Blackmun that Burger assigned the opinions to him out of malicious intention, but Blackmun disagreed. He knew that Burger could not write it himself because the abortion was too controversial, and his opinions might get rejected by the majority. He also understood why the other justices could not be assigned to write the opinions: Douglas was too liberal for the public to accept his word. Likewise, he might split the Court's vote by writing something radical. In addition, the quality of his opinions had suffered recently. Brennan was the only Catholic on the Court, and he would have to face Catholic political groups which were against abortion. If Marshall wrote the opinions, the ruling would be perceived as being directed towards African Americans, and he would have to face the displeasure of African American political groups. Stewart would have trouble going far enough in legalizing abortion.
At this point, Black and Harlan had been replaced by William Rehnquist and Lewis F. Powell Jr., but the first argument had already occurred before they became Supreme Court justices. Justice Blackmun worked on a preliminary opinion for Roe which argued that Texas's law was unconstitutionally vague. This approach accommodated the claims of some doctors who were concerned that prosecutors might disagree with them over what constituted "life". Blackmun thought this approach would be a good way to avoid controversy which would come with saying there was a fundamental right to abortion. Brennan and Douglas disagreed with Blackmun and wrote to him that instead he needed to focus on privacy. After communicating with the other justices, Blackmun felt that his opinion did not adequately reflect his liberal colleagues' views. In March 1972, the court issued a ruling in Eisenstadt v. Baird, a landmark case which applied the earlier marital privacy right now also to unmarried individuals.
Douglas wrote to Blackmun in May 1972 that he thought there were four judges who were definitely willing to rule in the majority—himself, Brennan, Stewart, and Marshall. Blackmun at one point thought all seven justices wanted to vote in the majority.
In May 1972, Blackmun proposed that the case be reargued. Justice Douglas threatened to write a dissent from the reargument order because he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold the Texas abortion statutes. He was coaxed out of the action by his colleagues, and instead his dissent was merely mentioned in the reargument order without further statement or opinion. The case was reargued on October 11, 1972. Weddington continued to represent the pseudonymous Jane Roe, and Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for Texas.
A June 1972 memo written by Douglas to his colleagues discussing the case was leaked to and published in The Washington Post before the decision was published.
Drafting the opinion
Blackmun continued to work on his opinions in both cases over the summer recess, even though there was no guarantee that he would be assigned to write them again. Over the recess, he spent a week researching the history of abortion at the Mayo Clinic in Minnesota, where he had worked in the 1950s. He talked daily on the phone with George Frampton, his 28-year old law clerk who stayed behind in Washington, D.C. Frampton researched the history of abortion using a book authored by Lawrence Lader, the founding chairman of what is now called NARAL Pro-Choice America. Blackmun's papers made available since his death contain at least seven citations for Lader's 1966 book, Abortion. Chapter 16 of his book, "A Blueprint for Changing U.S. Abortion Laws" predicted that if abortion were to be legalized, "the possibility of community opposition is slight". Lader also predicted that "If such a theoretical case was carried to a high court, perhaps even the U.S. Supreme Court, and the judges confirmed a broad interpretation of the meaning of a threat to life, undoubtedly a landmark in abortion decisions would be reached."
The historical survey for Roe also relied on several articles by Cyril Means, who served as counsel to NARAL. In the articles, Means misrepresented the common law tradition in ways that were helpful to the Roe side. Roy Lucas, the principal attorney assisting Weddington and Coffee, had previously received a memo from his colleague David M. Tundermann about Means's scholarship. The memo stated that the conclusions in Means's articles "sometimes strain credibility." It also stated:
Where the important thing is to win the case no matter how, however, I suppose I agree with Means's technique: begin with a scholarly attempt at historical research; if it doesn't work, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.
After the Court held the second argument session, Powell said he would agree with Blackmun's conclusion but pushed for Roe to be the lead of the two abortion cases being considered. Powell also suggested that the Court strike down the Texas law on privacy grounds. Byron White was unwilling to sign on to Blackmun's opinion, and Justice Rehnquist had already decided to dissent.
During the drafting process, the justices discussed the trimester framework at great length. Powell had suggested that the point where the state could intervene be placed at viability, which Thurgood Marshall supported as well. In an internal memo to the other justices before the majority decision was published, Justice Blackmun wrote: "You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." In the same memo he suggested that the end of the first trimester seemed more likely to get support from other justices and allowed states the ability to adjust their statutes. He was of the impression that doctors were concerned that recovering abortion patients would take up too many hospital beds, and that abortion patients later than the first trimester were more likely to require hospital beds than those whose fetuses were aborted earlier. Contrary to the justices who preferred viability, Douglas preferred the first-trimester line. Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to state legislatures, though he joined Blackmun's decision. William Brennan proposed abandoning frameworks based on the age of the fetus and instead allowing states to regulate the procedure based on its safety for the mother.
Supreme Court decision
On January 22, 1973, the Supreme Court issued a 7–2 decision in favor of "Jane Roe" (Norma McCorvey) holding that women in the United States had a fundamental right to choose whether to have abortions without excessive government restriction and striking down Texas's abortion ban as unconstitutional. The decision was issued together with a companion case, Doe v. Bolton, which involved a similar challenge to Georgia's abortion laws.
Larry Hammond, a law clerk for Powell, gave a Time reporter a copy of the decision "on background", expecting that it would be issued by the court before the next issue of Time was published. However, due to a delay in the decision's release, the text of the decision appeared on newsstands a few hours before it was published by the court. Burger demanded a meeting with Time's editors and punishment for the leaker. Powell refused Hammond's resignation, however, on the grounds "that Hammond had been double-crossed" by the reporter.
Opinion of the Court
After reciting the facts of the case, the Court's opinion first addressed procedure and justiciability. This included mootness, a legal doctrine that prevents American federal courts from hearing cases that have ceased to be "live" controversies because of intervening events. Under a normal application of the doctrine, McCorvey's appeal would have been considered moot because she had already given birth to her child and therefore no longer had a pregnancy to abort.
The Court concluded that an established exception to the mootness doctrine allows consideration of cases that are "capable of repetition, yet evading review". Blackmun noted that McCorvey might get pregnant again, and pregnancy would normally conclude more quickly than an appellate process: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied."
Abortion and right to privacy
After dealing with mootness and standing, the Court proceeded to the main issue of the case: the constitutionality of Texas's abortion law. The Court first surveyed abortion's status throughout the legal history of Roman law and the Anglo-American common law. It also reviewed the developments of medical procedures and technology used in abortions.
After its historical surveys, the Court introduced the concept of a constitutional "right to privacy" that it said had been intimated in its earlier decisions Meyer v. Nebraska and Pierce v. Society of Sisters, which involved parental control over childrearing, and Griswold v. Connecticut, which involved the use of contraception. Then, "with virtually no further explanation of the privacy value", the Court ruled that regardless of exactly which provisions were involved, the U.S. Constitution's guarantees of liberty covered a right to privacy that protected a pregnant woman's decision whether to abort a pregnancy.
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 ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether to terminate her pregnancy.
— Roe, 410 U.S. at 153.
The Court reasoned that outlawing abortions would infringe a pregnant woman's right to privacy for several reasons: having unwanted children "may force upon the woman a distressful life and future"; it may bring imminent psychological harm; caring for the child may tax the mother's physical and mental health; and because there may be "distress, for all concerned, associated with the unwanted child".
But the Court rejected the notion that this right to privacy was absolute. It held instead that women's abortion right must be balanced against other government interests, such as protecting the mother's health and protecting the life of the fetus. The Court held that the interests were sufficiently compelling to permit states to impose some limitations on pregnant women's right to choose to have an abortion.
A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. ... 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.
— Roe, 410 U.S. at 154.
Texas's lawyers had argued that limiting abortion to situations where the mother's life was in danger was justified because life began at the moment of conception, and therefore the state's governmental interest in protecting prenatal life applied to all pregnancies regardless of their stage. But the Court said that there was no indication that the Constitution's uses of the word "person" were meant to include fetuses, and it rejected Texas's argument that a fetus should be considered a "person" with a legal and constitutional right to life. The Court observed that there was still great disagreement over when an unborn fetus becomes a living being.
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, in this point in the development of man's knowledge, is not in a position to speculate as to the answer.
— Roe, 410 U.S. at 159.
To balance women's rights to privacy and state governments' interests in protecting mothers' health and prenatal life, the Court created the trimester framework. During the first trimester, when it was believed that the procedure was safer than childbirth, the Court ruled that a state government could place no restrictions on women's ability to choose to abort pregnancies other than imposing minimal medical safeguards, such as requiring abortions to be performed by licensed physicians. From the second trimester on, the Court ruled that evidence of increasing risks to the mother's health gave states a compelling interest that allowed them to enact medical regulations on abortion procedures so long as they were reasonable and "narrowly tailored" to protecting mothers' health. From the beginning of the third trimester on—the point at which a fetus became viable under the medical technology available in the early 1970s—the Court ruled that a state's interest in protecting prenatal life became so compelling that it could legally prohibit all abortions except where necessary to protect the mother's life or health.
Having completed its analysis, the Court concluded that Texas's abortion statutes were unconstitutional and struck them down.
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.
— Roe, 410 U.S. at 164.
Concurrences
Three justices from the majority filed concurring opinions in the case. Justice Potter Stewart wrote a concurring opinion in which he said that even though the Constitution makes no mention of the right to choose to have an abortion without interference, he thought the Court's decision was a permissible interpretation of the doctrine of substantive due process, which says that the Due Process Clause's protection of liberty extends beyond simple procedures and protects certain fundamental rights. Justice William O. Douglas's concurring opinion described his view that although the Court was correct to find that the right to choose to have an abortion was a fundamental right, he thought it would have been better to derive it from the Ninth Amendment—which states that the fact that a right is not specifically enumerated in the Constitution shall not be construed to mean that American people do not possess it—rather than through the Fourteenth Amendment's Due Process Clause.
Chief Justice Warren Burger wrote a concurrence in which he wrote that he thought it would be permissible to allow a state to require two physicians to certify an abortion before it could be performed. His concurrence also states:
I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.
This has been interpreted as Chief Justice Burger thinking that medical standards and judgment would restrict the number of abortions. Instead of the law restricting abortions to limited circumstances as pre-Roe, now doctors would get to do the restricting.
This understanding of Roe appears to be related to several statements in the majority opinion. Justice Blackmun's majority opinion states, "the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient's pregnancy should be terminated." It also states, "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." Six days prior to January 22, Justice Blackmun prepared "a transcript of what I shall say, and there should be at least some reason for the press not going all the way off the deep end." The unissued news release stated:
... the Court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician.
These statements appear to indicate that the justices voting in the majority thought that patients had personal physicians. Earlier in American history it was once common for people to have individual doctors, but the nature of doctor-patient relationship had already changed prior to Roe.
Dissents
Justices Byron White and William Rehnquist dissented from the Court's decision. White's dissent, which was issued with Roe's companion case, Doe v. Bolton, argued that the Court had no basis for deciding between the competing values of pregnant women and unborn children.
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 women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. 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.
— Doe, 410 U.S. at 221–22 (White, J., dissenting).
White argued that abortion, "for the most part, should be left with the people and the political processes the people have devised to govern their affairs."
Rehnquist's dissent compared the majority's use of substantive due process to the Court's repudiated use of the doctrine in the 1905 case Lochner v. New York. He elaborated on several of White's points and asserted that the Court's historical analysis was flawed:
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. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.
— Roe, 410 U.S. at 174–76 (Rehnquist, J., dissenting).
From the actual historical record, Rehnquist concluded, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." Because of this, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."
Reception
There was a strong response to the decision shortly after it was issued. The most prominent organized groups which responded to Roe are NARAL Pro-Choice America and the National Right to Life Committee.
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