Support for Roe
In the 1960s, there was an alliance between the population control and abortion rights movements. Abortion rights were especially supported by younger women within the population control movement. Mostly the cooperation was due to feminists who wanted some of the popularity already enjoyed by the population control movement. In addition, population control advocates thought that legalizing abortion would help solve the coming population crisis which demographers had projected.
In 1973, Hugh Moore's Population Crisis Committee and John Rockefeller III's Population Council both publicly supported abortion rights following Roe. Previously public support for abortion rights within the population control movement instead came from less established organizations such as Zero Population Growth. An exception was Planned Parenthood-World Population, which supported repealing all laws against abortion in 1969.
Together, population control and abortion rights advocates voiced the benefits of legalized abortion such as smaller welfare costs, fewer illegitimate births, and slower population growth. At the same time, the use of these arguments put them at odds with civil rights leaders and black-power activists who were concerned that abortion would be used to eliminate non-whites. H. Rap Brown denounced abortion as "black genocide" and Dick Gregory said that his "answer to genocide, quite simply, is eight Black kids and another one on the way."
Soon after Roe, the population control movement suffered setbacks which caused the movement to lose political support and instead appear divisive. On June 27, 1973, a lawsuit was filed concerning 14-year old Minnie Lee Relf and her 12-year old sister Alice Lee. A worker at a federally funded family planning clinic lied to their illiterate mother, saying they would get birth control shots. Instead, the Relf sisters were sterilized without their knowledge or consent. During the next fifteen months, 80 additional women came forward about their forced sterilizations, all belonging to minority races. Concerns rose that abortions would also become compulsory. During the 1974 World Population Conference in Bucharest, Romania, most developing nations argued that the developed nations' focus on population growth was an attempt to avoid solving the deeper causes of underdevelopment, such as the unequal structure of international relations. Instead, they wanted more favorable terms under the New International Economic Order. A draft plan with fertility targets was strongly opposed by the developing countries, which surprised the delegations from the United States, Canada, and Great Britain. The final plan omitted fertility targets and instead stated that "A population policy may have a certain success if it constitutes an integral part of socio-economic development".
In response, the abortion rights movement distanced itself from the population control movement as members questioned the political benefits of population control rhetoric. In October 1973, Robin Elliott circulated a memo to other Planned Parenthood members concerning opposition to "Planned Parenthood's credibility in its reference to the population problem". Instead, she thought they should use Roe inspired rhetoric about "the reaffirmation of commitment to freedom of choice in parenthood." By 1978, a NARAL handbook denounced population control.
Today, advocates of Roe describe it as vital to the preservation of women's rights, personal freedom, bodily integrity, and privacy. Advocates have also reasoned that access to safe abortion and reproductive freedom generally are fundamental rights. Supporters of Roe contend that even if abortion rights are also supported by another portion of the constitution, the decision in 1973 accurately founds the right in the Fourteenth Amendment. Others support Roe despite concern that the fundamental right to abortion is found elsewhere in the Constitution but not in the portions referenced in the 1973 decision.
Support for Roe, but opposition to legalized abortion
Opinion polls in late 2021 indicated a sizable minority of the American population opposed overturning Roe, but also desired to make abortion illegal in ways that Roe would not permit. This was attributed to poll respondents misunderstanding Roe v. Wade or a misinterpreting of the poll question.
Opposition to Roe
Opposition to Roe, but support for abortion rights
Some supporters of abortion rights oppose Roe v. Wade on the grounds that it laid a foundation for abortion in civil rights rather than in human rights, which are broader and would require government entities to take active measures to ensure every woman has access to abortion. This particular position is indicated by the use of rhetoric concerning "reproductive justice" which replaces earlier rhetoric centered around "choice", such as the "pro-choice" label. Reproductive justice proponents contend that factors permitting choice are unequal, thus perpetuating oppression and serving to divide women.
Reproductive justice advocates instead want abortion to be considered an affirmative right that the government would be obligated to guarantee equal access to, even if the women seeking abortions are nonwhite, poor, or live outside major metropolitan areas. With a broader interpretation of the right to an abortion, it would be possible to require all new obstetricians to be in favor of abortion rights, lest as professionals they employ conscience clauses and refuse to perform abortions. In the 1989 decision of Webster v. Reproductive Health Services, the Supreme Court ruled against an affirmative right to non-therapeutic abortions and noted that states would not be required to pay for them.
Some in academia have equated the denial of abortion rights to compulsory motherhood, and reason that because of this abortion bans violate the Thirteenth Amendment:
When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the Thirteenth Amendment. Even if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant.
In 1993, a district court rejected an attempt to justify abortion rights apart from Roe and instead upon the basis that pregnancy and childrearing constituted "involuntary servitude".
Opposition to both Roe and abortion
Every year, on the anniversary of the decision, opponents of abortion march up Constitution Avenue to the Supreme Court Building in Washington, D.C., in the March for Life. Around 250,000 people attended the march until 2010. Estimates put the 2011 and 2012 attendances at 400,000 each, and the 2013 March for Life drew an estimated 650,000 people.
Opponents of Roe assert that the decision lacks a valid constitutional foundation. Like the dissenters in Roe, they maintain that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the legislative process, rather than through an all-encompassing ruling from the Supreme Court.
A prominent argument against the Roe decision is that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm.
In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent or parental notification for minors to obtain abortions; spousal mutual consent laws; spousal notification laws; laws requiring abortions to be performed in hospitals, not clinics; laws barring state funding for abortions; laws banning intact dilation and extraction, also known as partial-birth abortion; laws requiring waiting periods before abortions; and laws mandating that women read certain types of literature and watch a fetal ultrasound before undergoing an abortion. In 1976, Congress passed the Hyde Amendment, barring the federal government from using Medicaid to fund abortions except in cases of rape, incest, or a threat to the life of the mother. The Supreme Court struck down some state restrictions in a long series of cases stretching from the mid-1970s to the late 1980s, but upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).
Some opponents of abortion maintain that person-hood begins at fertilization or conception, and should therefore be protected by the Constitution; the dissenting justices in Roe instead wrote that decisions about abortion "should be left with the people and to the political processes the people have devised to govern their affairs."
Responses within the legal profession
Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One argument is that Justice Blackmun reached the correct result but went about it the wrong way. Another is that the end achieved by Roe does not justify its means of judicial fiat.
David Garrow noted that the decision in Roe (and also Doe v. Bolton) "owed a great amount of their substance and language" to Justice Blackmun's law clerks, George Frampton and Randall Bezanson. He thought the extent of their contributions were remarkable, and that the clerks exhibited an "unusually assertive and forceful manner" in voicing their views to Justice Blackmun. In his research it was the earliest significant example he found of this behavior pattern, which grew more consistent later on. In Garrow's evaluation, the clerks' contributions were "historically significant and perhaps decisive" in shaping the two decisions.
In response to Garrow, Edward Lazarus noted that Justice Blackmun's later clerks like himself did not need as much direction on reproductive rights since they had Justice Blackmun's prior opinions to draw from. Lazarus thought that on at least some occasions when legal formulations were created for opinions to be published in Justice Blackmun's name, the justice himself was not engaged in originating every significant thought pattern that they employed. Lazarus agreed that Garrow's depiction of how the trimester framework came about was an example of one of these occasions. He concluded:
The problem of excessive clerk delegation was less serious in Blackmun's chambers than Garrow suggests but is also more commonplace among the justices. The modern Supreme Court has deep problems in its decisional culture and the overuse of law clerks is an aspect of this.
Justice John Paul Stevens, while agreeing with the decision, has suggested that it should have been more narrowly focused on the issue of privacy. According to Stevens, if the decision had avoided the trimester framework and simply stated that the right to privacy included a right to choose abortion, "it might have been much more acceptable" from a legal standpoint. Before joining the Court, Justice Ruth Bader Ginsburg criticized the decision for venturing "too far in the change it ordered." Had the decision been limited in scope to only permit abortion during certain circumstances, "physicians might have been less pleased with the decision, but the legislative trend might have continued in the direction in which it was headed". After becoming a Supreme Court justice, Ginsburg faulted the Court's approach for being "about a doctor's freedom to practice his profession as he thinks best ... It wasn't woman-centered. It was physician-centered." Justice Ginsburg thought that Roe was originally intended to complement Medicaid funding for abortions, but this did not happen. She stated about Harris v. McRae, which upheld restrictions on Medicaid abortion funding:
Yes, the ruling about that surprised me. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn't really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.
Watergate prosecutor Archibald Cox thought the "failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child birth and abortion or new advances in providing for the separate existence of a fetus. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."
In a highly cited Yale Law Journal article published in the months after the decision, the American legal scholar John Hart Ely strongly criticized Roe as a decision that was disconnected from American constitutional law.
What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. ... The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court's business. ... [Roe] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.
American constitutional law scholar Laurence Tribe had similar thoughts: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Liberal law professors Alan Dershowitz, Cass Sunstein, and Kermit Roosevelt III have also expressed disappointment with Roe v. Wade.
Jeffrey Rosen and Michael Kinsley echo Ginsburg, arguing that a legislative movement would have been the correct way to build a more durable consensus in support of abortion rights. William Saletan wrote, "Blackmun's papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference." Benjamin Wittes has written that Roe "disenfranchised millions of conservatives on an issue about which they care deeply." Edward Lazarus, a former Blackmun clerk who "loved Roe's author like a grandfather", wrote: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. ... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."
Richard Epstein thought that the majority opinion relied on a book written by William Lloyd Prosser about tort law when it stated, that it "is said" that recovery of damages was allowed "only if the fetus was viable, or at least quick, when the injuries were sustained". He compared this to what was actually written in the book, which was that "when actually faced with the issue for decision, almost all of the jurisdictions have allowed recovery even though the injury occurred during the early weeks of pregnancy, when the child was neither viable nor quick."
The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the ruling. The "viability" criterion is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.
Later responses by those involved
Harry Blackmun
Justice Blackmun, who authored the Roe decision, subsequently had mixed feelings about his role in the case. During a 1974 television interview, he stated that Roe "will be regarded as one of the worst mistakes in the court's history or one of its great decisions, a turning point."
In a 1983 interview for a newspaper journalist, he responded that he was "mildly annoyed at those, law professors included, who personalize it" because "it was a decision of the court, not my decision. There were seven votes." As a Methodist, he felt hurt that Methodist pastors wrote condemning letters to him, but as time passed, the letters did not hurt "as much anymore". In defense he responded, "People misunderstand. I am not for abortion. I hope my family never has to face such a decision", noting that "I still think it was a correct decision" because "we were deciding a constitutional issue, not a moral one."
He described Roe as "a no-win case" and predicted that, "fifty years from now, depending on the fate of the proposed constitutional amendment, abortion probably will not be as great a legal issue. I think it will continue to be a moral issue, however." He reflected that his role in the decision meant he was most known as the "author of the abortion decision". His response was that "we all pick up tags. I'll carry this one to my grave" and "so be it".
In 1987, Justice Blackmun explained in a letter to Chief Justice Rehnquist:
I remember that the old Chief appointed a screening committee, chaired by Potter, to select those cases that could (it was assumed) be adequately heard by a Court of seven. I was on that little committee. We did not do a good job. Potter pressed for Roe v. Wade and Doe v. Bolton to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris. How wrong we were.
In 1991, he regretted how the Court decided to hear Roe and Doe in a televised interview: "It was a serious mistake ... We did a poor job. I think the committee should have deferred them until we had a full Court."
In 1992, he stood by the analytical framework he established in Roe during the subsequent Casey case. He often gave speeches and lectures promoting Roe v. Wade and criticizing Roe's critics.
Norma McCorvey
Norma McCorvey would later claim that, during the 1970s although some years after Roe, she had a nightmare concerning "little babies lying around with daggers in their hearts". This was the first of a series of recurring nightmares which kept her awake at night. She became worried and wondered, "What really, had I done?" and "Well, how do they kill a baby inside a mother's stomach anyway?" McCorvey later reflected:
I couldn't get the thought out of my mind. I realize it sounds very naïve, especially for a woman who had already conceived and delivered three children. Though I had seen and experienced more than my share of the world, there were some things about which I still didn't have a clue—and this was one of them. Ironically enough, Jane Roe may have known less about abortion than anyone else.
During the years after Roe, although not immediately, McCorvey joined with and accompanied others in the abortion rights movement. During this time, McCorvey stated that she had publicly lied about being raped and apologized for making the false rape claim. Norma McCorvey became part of the movement against abortion from 1995 until shortly before her death in 2017. In 1998, she testified to Congress:
It was my pseudonym, Jane Roe, which had been used to create the "right" to abortion out of legal thin air. But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15, 20 years later and say, "Thank you for allowing me to have my five or six abortions. Without you, it wouldn't have been possible." Sarah never mentioned women using abortions as a form of birth control. We talked about truly desperate and needy women, not women already wearing maternity clothes.
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