Roundtable #8 | Roe v. Wade: Past, Present, and Future

Section One: Abortion Law Before Roe

Abortion is one of the most intimate and difficult choices many women make at least once in their lives. Indeed, almost one in four American women have an abortion by age 45. [1] Opponents of abortion, however, claim that Americans have long opposed this medical practice and frame Roe v. Wade as an “anomaly.” [2] However, the history of abortion in the United States reveals how common and necessary the procedure has been.

In the mid-19th century, abortion was a common medical practice that terminated pregnancy following a “quickening,” the period during the first trimester when a woman feels the fetus’ first movements. [3] In response to the “booming business” of abortion, however, the American Medical Association (AMA) spearheaded the medical profession’s crusade against abortion. [4] The AMA influenced state legislatures to ban abortion on the basis that it was a “moral crime based on ignorance about the proper value of embryonic life,” and claimed that new scientific evidence proved that an embryo was “alive” upon conception. [5] Despite the AMA’s efforts, however, abortion was still offered during the first trimester and when a physician deemed it necessary for the mother’s health. [6] At this point, abortion was not the “medical controversy” it would soon become. [7]

In 1873, Congress passed the first major law limiting reproductive rights—the Comstock Act. [8] Drafted by Anthony Comstock, a devout Christian, the statute defined “contraceptives as obscene and illicit” and made it a “federal offense to disseminate birth control through the mail or across state lines.” [9] New England states followed suit by passing extreme restrictions on the use of contraceptives, including drugs and literature authored by birth control activists. [10] Connecticut took this a step further by prohibiting the use of birth control altogether. [11] 

Abortion bans elicited backlash in the early 20th century, with the rise of the Women’s Suffrage Movement and First Wave Feminism. In United States v. One Package (1936), birth control activist Margaret Sanger challenged the Comstock Act and Tariff Act of 1930, which classified any article that caused an “unlawful abortion” as “obscene” and consequently prohibited its distribution and importation. [12] The U.S. Circuit Court of Appeals for the Second Circuit held that the Tariff Act was not designed to prevent the mail transportation and sale of things “which could intelligently be employed by conscientious and competent physicians” to improve their patients’ well-being. [13] One Package legalized contraception prescribed by physicians and removed the “taint of obscenity” surrounding birth control. [14] In 1937, the AMA officially endorsed contraceptives prescribed by doctors. [15]

In the 1950s, medical practice grew more professional and regulated. In comparison to 1900, a time when few births occurred in hospitals, most births occurred in hospitals after World War II. [16] Abortions, too, shifted from the “kitchen table of the woman’s home” to clinics and doctors’ offices. [17] In response to increased regulation in the medical field, hospitals established strict review boards to determine the “medical necessity” of an abortion. [18] Wealthy patients were more likely to be approved for the procedure, while poorer applicants—often people of color—were forced to resort to illegal, underground abortions. [19] 

In 1965, Griswold v. Connecticut dramatically altered the legal landscape surrounding reproductive rights, ultimately paving the way for Roe v. Wade. In a 7-2 decision, the Warren Court found that under the First Amendment’s “penumbra where privacy is protected from governmental intrusion,” states could not impose restrictions on a married couple’s use of contraception. [20] Griswold, however, was not as great a victory for reproduction rights as many had hoped it would be. At its core, the case was based not on a woman’s right to choose, but rather on a married couple’s right of privacy from government. Griswold thus failed to recognize that a woman’s right to an abortion concerns not just her right to privacy or her relationship to her government, but also—and arguably most importantly—her right to equality. This latter right encompasses a woman’s right to take ownership over her own body and, more broadly speaking, to “participate in full partnership with men in the nation’s social, political, and economic life.” [21]

Eisenstadt v. Baird (1971) expanded on Griswold’s precedent in a 6-1 decision that extended the right to possess contraceptives to individual, unmarried men and women. [22] Justice William Brennan wrote in the majority opinion that “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” (emphasis added). [23] The Eisenstadt Court also held that the Massachusetts statute in question violated the Fourteenth Amendment’s Equal Protection Clause, given that its exemption of married couples in its ban on the distribution of contraceptives “provid[ed] dissimilar treatment for married and unmarried persons who are similarly situated.” [24] Eisenstadt ultimately challenged the traditional marital notions associated with “family” and contributed to normalizing the idea of sexually active, unmarried women. [25] Ever since, the debate surrounding reproductive justice has centered on a woman’s right to bodily autonomy.

Eisenstadt set the stage for Roe v. Wade, which also invoked the Equal Protection Clause and privacy argument in upholding a woman’s right to choose to have an abortion. And this has all been for the better. History shows that a world without Roe means underground, unsafe abortions and self-induced miscarriages with metal coat hangers. If we truly value all Americans’ right to life, we must learn from our dark past: laws and court decisions do not put an end to abortion—they only make it more dangerous and deadly.

Annie Tan
Roundtable Contributor

Section Two: Roe v. Wade, the Case

In 1971, Norma McCorvey, better known under the pseudonym “Jane Roe,” alleged that Texas abortion laws violated her constitutional right to privacy. In a 7-2 decision, the Supreme Court held that a woman’s right to abortion fell within the scope of the right to privacy inferred in Griswold. [1] Notably, however, the Court sought to balance this right to choose with state interests in protecting maternal health and potential life. With respect to the state’s interest in potential life, it defined the “compelling” point to be at viability, or when a fetus has the capacity for meaningful life. [2] This ruling sparked an enduring political and legal conflict that often centers on the Court’s invocation of a “right to privacy,” which is derived from—but not explicitly mentioned in—the Constitution.

Although the Constitution contains no express right to privacy, the Court has repeatedly recognized a right to some measure of personal privacy, whether implied by the Fourteenth Amendment or guaranteed by the Bill of Rights and its penumbras. [3] The implicit constitutional right to privacy upheld in Roe rests on a lineage of cases that established marital and personal privacy. As discussed in section one, Griswold v. Connecticut established sexual privacy for married couples, while Eisenstadt v. Baird did so for unmarried people. [4] [5] 

Standing on Griswold and Eisenstadt’s shared finding of an implicit constitutional right to privacy, Roe held that a woman’s right to choose is a liberty subsumed under the Fourteenth Amendment’s Due Process Clause. However, the Court qualified that certain government interests outweigh the individual right to abortion; therefore, it did not advance a right to an abortion at any point in pregnancy. [6] Writing for the majority, Blackmun recognized legitimate state interests in protecting both potential life and maternal health, which abortion increasingly threatens in later stages of pregnancy. [7] Accordingly, the Court established a framework for evaluating restrictions on abortion. Available medical at the time indicated that abortion mortality rates were below or equal to that of normal childbirth until a point near the end of the first trimester. The Court thus held that only then could the state legislate in the interest of maternal health. Later in the pregnancy, states could regulate and ban abortion in the interest of protecting a viable fetus’ “capability of meaningful life” except in cases where the procedure is necessary to preserve the life of the mother. [8]

In his dissent, Rehnquist criticized Roe’s legal basis in the Fourteenth Amendment. Rehnquist argued that the liberty guarantee of the Fourteenth Amendment does not encompass the ordinary definition of “privacy,” and that even if it did, this guarantee would not be absolute. Certain laws may impinge on liberties if they meet the standard of “strict scrutiny,” which requires that a “compelling state interest” is achieved in the enforcement of the law. [9] Rehnquist wrote that this standard cannot rightly be employed to justify a sweeping ban on all state regulation of abortion during the first trimester. [10] What’s more, Rehnquist held that although some notion of privacy may be deemed fundamental and therefore protected under the liberty guarantee, the right to abortion cannot be considered similarly due to its widespread contention. [11]

Although also different from the “typical” definition of privacy invoked in searches and seizures, the right to privacy established in Griswold and Eisenstadt applies straightforwardly to Roe. The former cases established that the liberty protected under the Due Process Clause encompasses the right to make fundamental decisions about reproduction without state intervention. While the Roe Court conceded that certain laws which pass the strict scrutiny test may outweigh this liberty, it drew on a number of cultural and religious theories of life to deny that life begins at conception. The Court thereby rejected the notion that a compelling state interest other than maternal health exists at conception. [12] Notably, Rehnquist takes issue not with this conception of life but rather with the Court’s definition of privacy. 

Despite Roe’s firm grounding in precedent, Rehnquist’s dissent highlights a fundamental weakness in the majority opinion: the right to privacy may be too abstract to defend a right as controversial as that to choose. Over ten years after Roe was decided, Justice Ginsberg addressed this issue by arguing rather compellingly that the Fourteenth Amendment’s Equal Protection Clause provides a stronger foundation for the right to choose than the Due Process Clause. [13] The decision to terminate a pregnancy is essentially one that concerns a woman’s body; men do not face the same circumstances on account of their sex. To impose undue restraints on this choice, therefore, is to deny women the full bodily autonomy enjoyed by men. As Ginsberg wrote, “Also in the balance is a woman’s autonomous charge of her full life’s course… her ability to stand in relation to men, society and to stay as an independent, self-sustaining equal citizen.” [14]

Ginsberg’s framework is a modern response to Rehnquist’s argument that the Framers did not view abortion as a Fourteenth Amendment right, given that the amendment catalyzed no action against the numerous state abortion regulations that existed at the time of its conception. The United States has already taken steps to rectify inequities advanced by the drafters of the Constitution, for instance in its extension of the constitutional right to vote to women in 1920. [15] Modern notions of gender equality, which have emerged from a growing national consciousness about historical injustices and systemic oppression, may therefore provide a more concrete defense of female bodily autonomy than the notion of due process.

Julia Chang
Roundtable Contributor

Section Three: Abortion Law after Roe v. Wade 

Roe v. Wade legalized abortion and struck down abortion laws across 46 states. [1] As women’s rights organizations celebrated, some religious groups and “pro-life” organizations have criticized abortion as murder and repeatedly sought to reverse the Supreme Court ruling. [2] Following Roe, other state efforts to reduce access to abortion were challenged before the Supreme Court. For example, in 1980, a pregnant recipient of Medicaid challenged the Hyde Amendment, which limited the use of federal funds to pay for abortions. The Court ruled in Harris v. McRae that states participating in Medicaid were not obligated to finance medically necessary abortions, as a woman’s freedom to choose did not carry a “constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” [3] 

The legal fight over abortion continued into the next decade, in response to a 1990 Minnesota statute that denied minors access to abortion until 48 hours after both parents have been notified, except in cases of medical emergency or parental abuse. In Hodgson v. Minnesota, the Court overturned the statute, holding that it posed an undue burden on the abortion rights of minors by requiring the notification of both parents. [4] In requiring the notification of only one parent, this ruling expanded young women’s access to abortion. Following Hodgson, Planned Parenthood of Southeastern Pennsylvania v. Casey also expanded abortion access for women. Holding that women do not have to notify their husbands to undergo an abortion, the Court established that state-mandated abortion notifications impose an “undue burden” on women seeking abortions. [5] This ruling rightfully reinforced women’s right of choice, as requiring women to notify their husbands of procedures performed on their own body creates obstacles that may prevent women from having abortions. Ultimately, the Court reaffirmed the general principle that women have the right to make their own personal medical decisions independent of any social or legal relations. 

Although Hodgson and Casey preserved the pro-choice spirit of Roe, the general trend of subsequent court decisions was the restriction of abortion access. Despite striking down a law to criminalize abortion in Stenberg v. Carhart (2000), the Court upheld a similar law in Gonzales v. Carhart (2007) and Gonzales v. Planned Parenthood Federation of America, Inc (2007). In these decisions, the Court affirmed the constitutionality of the 2003 Partial-Birth Abortion Ban Act, a congressional ban on partial-birth abortion. This law criminalizes abortions performed in the second trimester and does not contain an exception permitting abortions in cases where the mother’s health is in danger. [6][7] In upholding the Partial-Birth Abortion Act, the Court overruled a major provision of Roe, which is that maternal health is of primary consequence in laws restricting abortion access. According to the 1973 landmark decision, the state may not regulate a woman’s right to abortion in the first trimester and can only do so in the second trimester in the interest of the pregnant woman’s health. [8] In this sense, Roe not only protected women’s right to privacy and choice but also their health. In contrast, the Gonzales rulings demonstrated a concerning lack of regard for maternal health. 

While the Supreme Court rulings of Harris, Hodgson, and Casey reflect a prevailing interest in women’s health and liberty, the Gonzales decisions are a questionable reversal of provisions affirmed in Roe v. Wade. This reveals a key tension in the perennial abortion debate: states that restrict abortion claim to do so in the interest of preserving life, yet their harsh regulations disregard both the physical and mental health of the women who carry the life that they so cherish. As the future of Roe remains uncertain, one must question why a woman’s reproductive rights, which amount to control over her own body, should be in the hands of the state and the federal government. 

Elissa Kim
Roundtable Contributor

Section Four: The Future of Abortion Law

2020 has been a year of reckoning for abortion access. With the Supreme Court’s recent ruling in June Medical Services LLC v. Russo, Amy Coney Barrett as a new appointee to the Court, Joe Biden as the President-Elect, and Democrats as the slim majority in Congress, the future landscape of abortion law in the US is far from certain. 

June Medical, the first abortion-related case to reach the Supreme Court since Justice Gorsuch and Kavanaugh joined the bench, was decided just this summer. The Court struck down a Louisiana law that required abortion providers to have “active admitting privileges at a hospital that is located not further than 30 miles from the location at which the abortion is performed or induced.” Writing the majority opinion, Justice Breyer drew on Whole Woman’s Health v. Hellerstedt as precedent. The statute at issue then, as with the Louisiana law, was evidentially proven to be devoid of any health benefit and thus imposed an undue burden on abortion access. [1]

Of the four dissenting opinions in June Medical, Justice Thomas’ dissent contained two points that pose the strongest challenge to the majority’s position. First, there is the issue of standing. [2] Since Marbury v. Madison, Article III of the Constitution has been interpreted such that federal courts can only make decisions on cases that are brought to them by a person who is actually affected by the law. June Medical, however, was brought by ‘abortionists and abortion clinics.’ Notably, Justice Thomas does concede that the Court has deviated from this traditional rule, pointing to Kowalski v Tesmer (2004), where the Supreme Court found that some circumstances necessitate the granting of standing to a third party to assert the rights of another. This allowance is qualified by two requirements: the party asserting this right must have a ‘close’ relationship with the person who possesses the right, and there must be a ‘hindrance’ to the possessor’s ability to protect their own interests. 

The minority has a valid point in contending that under traditional standing law, June Medical should not have been heard in the first place. It is difficult to see how an organisation such as June Medical Services would meet these qualifications to receive third-party standing, as it asserts no rights of its own, seeking instead to vindicate the ‘putative constitutional rights of individuals not before the Court.’ However, the fact that this may simply be circumvented by finding a plaintiff in a pregnant individual who was personally affected by the law in question shows that this argument hinges on a prosaic procedural technicality, which does not substantively attack the right to abortion more generally. We therefore turn to the second challenge put forward, which does in fact provide such criticism. 

A second argument in favor of upholding the Louisana law was the minority’s contention that there is no constitutional right to abortion and that the Constitution does not restrain the States’ ability to regulate abortion. [3] Justice Thomas directly attacked the precedent set by Roe, deeming the notion that the Framers understood the Due Process Clause as protecting a right to abortion to be ‘farcical.’ This originalist approach to statutory interpretation is misguided. As social mores, medical innovations, and legal norms continue to change, the premise that the Framers fixed the meaning of a law on the date of its enactment is ‘farcical’ indeed. Interpretations of the law should be guided by considerations of what the given legislation ought to mean in light of the needs and aims of modern society. Justice Thomas noted that many laws limiting abortions existed at the time the Fourteenth Amendment was ratified. As highlighted in Justice Breyer’s opinion, however, scientific and technological advancements have made abortion procedures much safer in recent years. In this modern context, and in light of the general pattern of pro-abortion decisions spanning from Roe to June Medical, it is credible to derive the right to abortion from the Fourteenth Amendment.

June Medical Services was decided in a narrow 5-4 vote. Justice Ginsburg’s passing and Justice Barrett’s subsequent appointment is therefore of paramount significance for the future of abortion law. Currently, Republican appointees outnumber Democratic ones by a 6-3 margin.  Justice Barrett has linked herself to the late Justice Scalia, who, like Justice Thomas, believed that individual states should be free to regulate abortion as they see fit. That Justice Barrett is of the same opinion is evidenced by her joining of the dissent as an Appeals judge on the 7th Circuit in Planned Parenthood of Indiana and Kentucky Inc et al v. Commissioner of the Indiana State Department of Health (2018), which argued for the right of states to prevent abortions designed to choose the sex, race and other attributes of children. [4] There is also evidence that Justice Barrett would favor Justice Thomas’s originalist approach in opposition to a view of the Constitution through the lens of modern legal developments. In a 2013 law review article written on the doctrine of stare decisis, she opined that it is the duty of a Justice “to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it.” [5]

Whether Justice Barrett finds the precedent for a right to abortion to be ‘clearly in conflict’ with the Constitution is inextricably linked to her political and ideological leanings. On this point, Justice Barrett has given two rather contradictory statements. During her 2017 confirmation hearing for the Court of Appeals, she stated that judges must always prioritize their duty under the law over personal convictions. However, Justice Barrett has also declared that Catholic judges like herself are “obliged to adhere to their church’s teaching on moral matters.” [6] Justice Barrett’s identification with Justices that have previously voted against abortion, combined with her conservative religious and political tendencies, may very well lead to an an overturning of Roe.

One must also bear in mind that the Supreme Court does not have the final say in abortion law. If Roe v. Wade is overturned, the issue would return to individual states, resulting in a patchwork of legislation with restrictions on abortion varying from state to state. President-Elect Joe Biden has vowed to pass legislation to make Roe “the law of the land”, which would provide some uniformity. However, whether this promise is ultimately fulfilled hinges on Congress, where the Democrats’ slim majorities may favor, but do not guarantee, sweeping pro-abortion legislation.

Tiffany Chow
Cambridge Roundtable Collaborator

All Roundtable Sections Edited By: Jessica Lin

Sources:
Section One

[1] Guttmacher Institute, Induced Abortion in the United States, Guttmacher Institute (2019), online at https://www.guttmacher.org/fact-sheet/induced-abortion-united-states (visited December 14, 2020).

[2] Lauren MacIvor Thompson, Women Have Always Had Abortions, New York Times (2019), online at https://www.nytimes.com/interactive/2019/12/13/opinion/sunday/abortion-history-women.html (visited December 14, 2020). 

[3] History.com Editors, Roe v. Wade is decided, A&E Television Networks (2009), online at https://www.history.com/this-day-in-history/roe-v-wade (visited December 14, 2020).

[5] Kristin Luker, Abortion and the Politics of Motherhood 21 (Berkeley: University of California Press 1984).

[6] Erin Blakemore, The Criminalization of Abortion Began as a Business Tactic, A&E Television Networks (2018), online at https://www.history.com/news/the-criminalization-of-abortion-began-as-a-business-tactic (visited December 14, 2020).

[7] Polly F. Radosh, “Abortion: A Sociological Perspective,” Interdisciplinary Views on Abortion: Essays from Philosophical, Sociological, Anthropological, Political, Health and Other Perspectives 23 (McFarland 2009).

[8] Anthony Comstock’s “Chastity” Laws, PBS, online at https://www.pbs.org/wgbh/americanexperience/features/pill-anthony-comstocks-chastity-laws/#:~:text=Making%20Birth%20Control%20a%20Federal%20Crime&text=On%20March%203%2C%201873%2C%20Congress,mail%20or%20across%20state%20lines (visited December 14, 2020).

[9] id

[10] id

[11] id

[12] Tracing One Package--The Case that Legalized Birth Control, The Margaret Sanger Papers Project (2011), online at https://www.nyu.edu/projects/sanger/articles/tracing_one_package.php (visited December 14, 2020).

[13] LexisNexis, United States v. One Package - 86 F.2d 737 (2d Cir. 1936), online at https://www.lexisnexis.com/community/casebrief/p/casebrief-united-states-v-one-package (visited December 14, 2020).

[14] Tracing One Package--The Case that Legalized Birth Control, The Margaret Sanger Papers Project (2011), online at https://www.nyu.edu/projects/sanger/articles/tracing_one_package.php (visited December 14, 2020).

[15] id

[16] Marian F. MacDorman, Ph.D.; T.J. Mathews, M.S.; and Eugene Declercq, Ph.D., “Trends in Out-of-Hospital Births in the United States, 1990–2012,” 144 NCHS Data Brief, 1, (2014).

[17] Polly F. Radosh, “Abortion: A Sociological Perspective,” Interdisciplinary Views on Abortion: Essays from Philosophical, Sociological, Anthropological, Political, Health and Other Perspectives 25 (McFarland 2009).

[18] id

[19] id

[20] Griswold v. Connecticut, 381 U.S. 479 (1965).

[21] Ruth Bader Ginsburg, Sex Equality and the Constitution: The State of the Art, 4 Women’s Rts. L. Rep. 143, 143-44 (1978).

[22] Eisenstadt v. Baird, 405 U.S. 438 (1972).

[23] id

[24] id

[25] Susan Frelich Appleton, “The Forgotten Family Law in Eisenstadt v. Baird,” 28:1 Yale Journal of Law and Feminism, 11 (2016).

Section Two

[1] Roe v. Wade, 410 U.S. 113 (1973).

[2] id

[3] id

[4] Griswold v. Connecticut, 381 U.S. 479 (1965).

[5] Eisenstadt v. Baird, 405 U.S. 438 (1972).

[7] Roe v. Wade, 410 U.S. 113 (1973).

[8] id

[9] “14th Amendment.” Legal Information Institute. Legal Information Institute. Accessed January 9, 2021. https://www.law.cornell.edu/constitution/amendmentxiv.

[10] “Roe v. Wade (1973).” Legal Information Institute. Legal Information Institute. Accessed January 9, 2021. https://www.law.cornell.edu/wex/roe_v_wade_(1973).

[11] Roe v. Wade, 410 U.S. 113, 173 (1973).

[12] id at 174.

[13] id at 160-161

[14] Ginsberg, Ruth Bader. “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade.” North Carolina Law Review 63, No. 2, January 1 (1985).

[15] id at 383

[16] “The 19th Amendment.” National Archives and Records Administration. National Archives and Records Administration. Accessed January 9, 2021. https://www.archives.gov/exhibits/featured-documents/amendment-19

Section Three

[1] “Roe v. Wade (1973).” Legal Information Institute, Cornell Law School, 13 Dec. 2020, https://www.law.cornell.edu/wex/roe_v_wade_(1973).

[2] “Roe v. Wade: Its History and Impact.” Planned Parenthood Federation of America, 13 Dec. 2020, https://www.plannedparenthood.org/files/3013/9611/5870/Abortion_Roe_History.pdf.

[3] Harris v. McRae, 448 U.S. 297, (Supreme Court, 1980).

[4] Hodgson v. Minnesota, 497 U.S. 417, (Supreme Court, 1990).

[5] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, (Supreme Court, 1992).

[6] Gonzales v. Carhart, 550 U.S. 124, (Supreme Court, 2006). 

[7] Gonzales v. Planned Parenthood Federation of America, Inc., 550 U.S. 124, (Supreme Court, 2007). 

[8] Roe v. Wade, 410 U.S. 113, (Supreme Court, 1973). 

Section Four

[1] June Medical Services LLC v Russo https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf

[2] id

[3] id

[4] Planned Parenthood of Indiana and Kentucky Inc et al v. Commissioner of the Indiana State Department of Health https://www.supremecourt.gov/opinions/18pdf/18-483_3d9g.pdf

[5] Amy C. Barrett, “Precedent and Jurisprudential Disagreement,” Texas Law Review 91 (2013): 1728 https://texaslawreview.org/wp-content/uploads/2015/08/Barrett.pdf

[6] Amy C. Barrett & John H. Garvey, “Catholic Judges in Capital Cases,” Marquette Law Review 81 (1997-1998) https://scholarship.law.nd.edu/law_faculty_scholarship/527

Amy C. Barrett & John H. Garvey, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303 (1997-1998): 303 https://scholarship.law.nd.edu/law_faculty_scholarship/527