What Is Roe v. Wade? | Roe v. Wade History

(Last Updated On: May 5, 2022)

If you’re reading this post, you’re probably holding your breath really, really hoping that Roe v. Wade sticks around. That statement will probably always be relevant. Truly, what’s more emblematic of American politics than that? It’s always going to be relevant to know what Roe v. Wade is anyway so let’s answer that. If you’re not down for a history lesson, we promise you’ll also get to find out what the most horrible legal joke ever was. 

Landmark Decisions

Roe v. Wade was a landmark case, whose ruling was issued on January 22, 1973. We’ll get into what the decision actually was after some of its background, but broad strokes you probably know this decision as “the one that granted women the right to an abortion.” Landmark decisions substantially change how existing law in the United States operates. It’s an important distinction from creating new laws, since the role of the Supreme Court isn’t to create laws. It interprets them and judges how those laws should be executed (or if they should be executed in the first place). These decisions often establish a new legal principle or concept, refine old ones, set measurable standards for future decisions, or overturn prior negative precedent to rectify flaws in previous judicial decisions. The last bit is important, since the American legal system broadly operates on precedent. That is to say, decisions in the present are heavily informed by decisions made in the past. When looking at something new, we try to find something similar that happened in the past and apply it to the present. 

However, the Supreme Court also operates on the rule of stare decisis, which broadly means “let the decision stand.” It ensures the law is applied consistently. That’s why many Supreme Court decisions refine or distinguish old legal principles, rather than throwing them away. 

Technically landmark decisions can be handed down from courts of appeals in the US, and state supreme courts issue decisions that develop the laws of that state. But it’s super rare for state decisions to ripple out to the rest of the US. So it’s most common for these decisions to be handed down from the Supreme Court of the United States.

What got it before the Supreme Court?

The case that ultimately led to Roe v. Wade was founded on that of Norma McCorvey. In 1969 McCorvey became pregnant with a third child and sought an abortion. Unfortunately she lived in Texas where the procedure was only legal if the mother’s life was in jeopardy. McCorvey’s attorneys filed suit against Dallas County District Attorney Henry Wade. Their grounds were simple; they alleged the abortion laws in Texas were unconstitutional. The local court ruled in favor of McCorvey, which Texas didn’t like very much. The state appealed directly to the Supreme Court. 

What would eventually become Roe v. Wade had actually been kicking around well before McCorvey was involved. Attorney (and also legal professor and member of the Texas House of Representatives) Sarah Weddington was set to file a suit representing a married couple. She would allege that the woman had the right to an abortion, and convinced another attorney, Linda Coffee, to join her. 

The goal was to change Texas’s abortion laws. Remember that at the time abortions were illegal barring danger to the mother’s life. Weddington and Coffee sought to have abortion covered by the right of privacy. However, the pair would need a plaintiff to file suit. To phrase it rather coldly, they needed to find a woman in Texas who wanted an abortion and would be willing to be their plaintiff.

That person was Norma McCorvey, who was 21 at the time. She agreed to be Weddington and Coffee’s plaintiff under the assumption that she would be able to get a legal abortion. She was anonymized as “Jane Roe,” a variant of “Jane Doe.” Unfortunately, that didn’t end up panning out for her; her daughter was adopted in early June of 1970. By June 17, 1970 (just weeks later), three judges on the US Court of Appeals for the Fifth Circuit ruled unanimously in favor of McCorvey. They declared Texas’s abortion laws unconstitutional, finding that the laws violated the right to privacy the Ninth Amendment conferred. 

The Hearing

As we alluded to before, Roe v. Wade made it to the Supreme Court after it was appealed by Texas later in 1970. The Supreme Court’s hearing of Roe v. Wade was delayed in part due to Younger v. Harris and United States v. Vuitch, as the court felt that a decision on Roe was predicated on those other two cases. Younger v. Harris wasn’t an abortion case, but dealt with what kinds of cases US federal courts could hear. It held that federal courts should abstain from hearing civil rights issues brought forth by someone being prosecuted for that issue.

United States v. Vuitch was an abortion case, and held that the term “health” was not unconstitutionally vague. It, too, was founded on abortion’s legality. Except this time it was Washington, D.C. Abortion was legal only if carrying the pregnancy to term was a danger to the mother’s health. The ruling held that this wasn’t vague, and placed the burden of proving the pregnancy would have been dangerous on the prosecutor–rather than the medical personnel who performed the abortion. This is actually super important because of the dissenting opinion written by Justice Douglas. In it, he alluded to a general right to abortion as a part of one’s right to privacy–and two years later seven justices on the Supreme Court would agree when Roe v. Wade was heard.

The Actual Hearing and the Worst Legal Joke Ever. Of All Time. 

When it came to the actual hearing, there’s probably not too much that you might care about except for how… gross the one of the attorneys defending abortion restrictions was. In his opening argument Jay Floyd made what has come to be regarded as the worst legal joke in history. Appearing against two women, Floyd thought it would be a good idea to open with this knee-slapper: “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.” 

No. It did not go well. 

The Opinion

When it comes to the decision on Roe, part of it had to do with “mootness.” The defense questioned whether or not the plaintiff had standing in their case as McCorvey had already given birth. The Supreme Court held that the plaintiff still did have standing, since most cases aren’t heard through appeal in less time than it takes for a pregnancy to play out. Arguing Roe was moot on those grounds thus would prevent the vast majority of issues on abortion being heard at all.

The majority (7-2) opinion was written by Justice Blackmun, with support of Justices Burger, Douglas, Brennan Jr., Stewart, Marshall, and Powell Jr. In it, they found that abortion fell under the fundamental right to privacy, and Blackmun pointed to the Fourteenth Amendement (rather than the Ninth). This opinion leveraged the trimester framework for pregnancy against the viability of any given pregnancy. Which at face is kind of problematic–trimesters and fetal viability are not interchangeable, but that’s what you get when all nine people ruling on abortion rights are men who woulnd’t ever have had that lived experience. Either way, the opinion states that women have the exclusive right to abortion during the first trimester with no state intervention. It states the state may intervene in the second trimester, but only if the mother’s health is not at risk. As for the third trimester, the Court considered the fetus viable at this point and that the state could restrict the right to abortion. This did come with the stipulation that exceptions would be included for regulations that protected the mother’s health. Under United States v. Vuitch, this included both physical and psychological health. 

Planned Parenthood v. Casey

In 1992 the Supreme Court would return to Roe v. Wade with Planned Parenthood v. Casey. This was another landmark decision in which Roe was challenged, and in it the Supreme Court upheld the right to an abortion under privacy established by Roe. It revised parts of Roe’s precedent, though. The opinion held that the state could ban the abortion of a viable fetus under any circumstances, so long as the mother’s health wasn’t at risk. Planned Parenthood v. Casey introduced a way to evaluate laws restricting abortion as well; they should be evaluated under an undue burden standard–instead of strict scrutiny. 

Those last two terms are in legalese, so let’s try to turn it into English. Strict scrutiny can be invoked if the court finds that a law infringes a constitutional right. Using strict scrutiny, that law can be upheld anyway if the government can prove that the law is necessary to achieve a “compelling state interest.” It basically means the interests of the state can outweigh a right if the state can prove it’s important enough. However, the state must also prove that the infringing law is narrow in its scope (so you can’t apply it to something it was never intended to regulate), and that the law restricts the pertinent right in the least restrictive way possible.

The undue burden standard holds that legislatures cannot create a law that is too restrictive of a person’s rights. That’s as broad as it seems, and essentially made things more lenient to states when it came to creating abortion laws. 

Parenthood v. Casey, while it allowed Roe to survive, still left the door open to future challenges to Roe. It did replace the trimester framework with a stronger focus on viability. This ended up meaning that the government could restrict rights to an abortion earlier in a pregnancy. Which made it easier to argue that the government’s interests in keeping a fetus alive outweighed the interests of pregnant women

See if you know more landmark decisions handed down by the Supreme Court here.



About Kyler 728 Articles
Kyler is a content writer at Sporcle living in Seattle, and is currently studying at the University of Washington School of Law. He's been writing for Sporcle since 2019; sometimes the blog is an excellent platform to answer random personal questions he has about the world. Most of his free time is spent drinking black coffee like water.