Today is the fortieth anniversary of Roe v. Wade, 410 U.S. 113 (1973). That decision, written by Justice Blackmun, an appointee of President Nixon, and joined in by Justices as liberal as Douglas, Brennan and Marshall and as conservative as Burger and Powell (as well as Justice Stewart), commanded a 7-2 majority. Only Justices White and Rehnquist dissented.
The majority applied the principle of “capable of repetition yet evading review” to hold that plaintiff Jane Roe, who sued on behalf of a class, had standing to challenge the Texas statute that criminalized virtually all abortions. However, a doctor against whom state criminal prosecutions were pending and a childless couple who might have been affected by the statute in the future but had no current injury lacked standing.
Justice Blackmun’s opinion then found that the right of personal privacy that previous decisions of the Court going back decades had found to exist under various provisions of the United States Constitution “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” That right, however, “is not unqualified and must be considered against important state interests in regulation.” Thus, the majority expressly rebuffed the idea “that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.” Chief Justice Burger’s concurrence reiterated that the majority had rejected “abortions on demand.”
Justice Blackmun’s majority opinion went on to delineate a three-stage process. “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.” Thereafter, and until viability of the fetus, “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.” After viability, “the State 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.”
Roe v. Wade has been a political football ever since its issuance. Some conservative elements have misrepresented the opinion as having authorized abortion on demand and/or having failed to recognize a State interest in potential human life. On the other side, even scholars who are not in accord with the anti-abortion viewpoint have criticized some of the reasoning of the majority and the basis for its almost legislative three-part formula.
In the time since 1973, the Court has decided other abortion cases. The far more conservative Rehnquist Court expressly reaffirmed Roe in Planned Parenthood v. Casey, 505 U.S. 933 (1992), by a 5-4 vote. Nonetheless, the political debate over the decision continues as though the Court had not ruled by an overwhelming majority in 1973 and reaffirmed its decision nineteen years later, and as though Roe v. Wade were not grounded in privacy precedents that even most abortion opponents would concede are valid.
Many opponents (and some advocates) of Roe v. Wade have never actually read it. This fortieth anniversary is a good time to do so.