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Roe v. Wade (Decision January 22, 1973)

The celebrated and despised Supreme Court case on abortion

The issue of abortion raises significant tension in the United States. The issue separates certain religious groups, claiming a fetus’ life has a value equal to that of a born person, from others who place a higher value on the right of a woman to control whether or not she is pregnant. In 1973, the Supreme Court weighed in, as it was presented with a case of a woman wishing to end her pregnancy and a state law preventing the woman from doing so.

Our report explains the Roe v. Wade court decision in an infographic.

The case

In 1971, Norma McCorvey (known in court documents as “Jane Roe”) filed a lawsuit against the attorney general of Texas, Henry Wade. McCorvey argued a Texas law banning abortion, which had been enforced against her, was unconstitutional. The Texas law only allowed abortions if necessary to save the woman’s life.

Regulation vs. Liberty

States are allowed to regulate a wide variety of actions in the interest of protecting people. But the Constitution limits the states’ rights to regulate. One of those limits is based on an individual’s right to liberty. In Roe v. Wade, McCorvey (Roe) argued the Constitution protected her liberty to choose to have an abortion, above the state’s right to regulate abortion.

To an extent, the Supreme Court agreed.

The Supreme Court ruling on Roe v. Wade

The Supreme Court declared the right to an abortion is a fundamental liberty that the state must have a very strong interest to limit. Our Roe v. Wade infographic describes how the court balanced the liberty/abortion interest of the woman with the state’s interest in prenatal life.

The Court ruled that the woman’s liberty right (right to control whether or not she is pregnant) is stronger than the state’s interest in the fetus’ life up until a certain point in the pregnancy. That point is the “point of viability” – when the fetus could survive on its own outside of the womb. After the point of viability, the state’s interest in protecting the fetus outweighs the woman’s choice to terminate her pregnancy. After the point of viability, the Court ruled, a state can prohibit women from getting abortions.

What else did the decision say?

The Supreme Court added that a state might regulate abortion based on reasons other than the concern for prenatal life. The Supreme Court said the state could justify abortion regulation based on the concern for a woman’s health, just not before the end of the first trimester.

The controversy over the due process clause

McCorvey (Roe) based her argument on the word “liberty” contained in the due process clauses of the Constitution’s 5th and the 14th Amendments. The due process clause says that no person can be deprived of “life, liberty, or property, without due process of law.”

McCorvey’s use of the due process clause to guarantee her the right to an abortion highlights a controversy in legal jurisprudence. Note the word “process” in the clause. Process and substance are different in law. Some argue the due process clause should not be used for defining liberty. In other words, the substance of liberty cannot be determined through a provision that relates to process. For more information on this controversy (a confusing topic in law), see our infographic explainer on Substantive Due Process.

Years later: Jane Roe’s Change of Heart

Norma McCorvey – “Roe” herself – the woman who represents the decision – had a surprising change of heart on the issue of abortion later in life. McCorvey started a “pro-life” organization “Roe No More” in 1997 and even filed in court in 2003 to try to have Roe v. Wade overturned. The attempt was unsuccessful.

The future – changes in medical science

“Pro-choice” advocates may have a legitimate concern about the ruling as medical science advances. The Supreme Court ruled that the point of viability is the essential point at which the state’s interest in prenatal life outweighs the liberty interest of the woman. But when medical science advances to bring that point of viability to progressively earlier times in the pregnancy, will the abortion bans creep up too? See this article from the Constitution Center for a discussion.

More Information about Roe vs Wade

  • CNN’s “Fast Facts” on the case, including a legal timeline.

Roe v. Wade (Decision January 22, 1973)

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About the Author

Mariam Morshedi

Mariam Morshedi

Mariam Morshedi is the Founder and Executive Director of Subscript Law. Before starting Subscript Law, she practiced civil rights law for AARP Foundation, where she litigated housing, consumer and disability rights issues.

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