The Untold Truth Of Roe V. Wade

Saying that Roe v. Wade made abortion legal in the United States ignores the fact that legal abortion existed well before the court case was argued. Essentially until the mid-1800s, abortion was legal until the mother could feel fetal movement (called "quickening"). But in the mid-1800s, the American Medical Association promoted criminalizing abortion and that's the point at which abortion became illegal in most situations.

Then, in the 1960s when Civil Rights protests and the Vietnam War were at their peak, some states began to reform their anti-abortion laws. In fact, when the case first made its way to the Supreme Court in 1971, abortion was legal in six states and Washington, D.C. But despite the fact that abortion was legal in several states, prior to Roe v. Wade, women did not have a constitutional right to an abortion, which meant that each state was able to set its own laws and some had outlawed abortion outright. Others allowed it only in cases when a woman's (or her baby's) life was endangered. Still others allowed for it only in cases of rape or incest.

One reason the decision in Roe v. Wade took so long is because the case was argued twice. McCorvey's attorneys filed the lawsuit in 1970 and it was taken up by the Supreme Court in December of 1971. The attorney representing Texas was named Jay Floyd, and he opened his argument by telling what people have since called the "worst joke in legal history," referencing the two female attorneys, Sarah Weddington and Linda Coffee, who were representing Roe. He said, "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."

Although the case was argued that same day, the law being used for the side of Roe was vague, and Justice Harry Blackmun proposed that the case be reargued. Nearly a year later on Oct. 11, 1972, the case was reargued with a new attorney, Texas Assistant Attorney General Robert C. Flowers, representing the state of Texas. The Court issued its decision on Jan. 22, 1973 — a 7-2 decision that Texas had violated Roe's constitutional right to privacy through its abortion-limiting laws.

In What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision, legal experts arguing in support of the right to abortion call upon the Equal Protection Clause. They suggest that statutes that limit abortion violate women's liberty and equality because restrictions on abortion compel women to become mothers and, in our society, women bear the brunt of responsibility for childcare. They also note that, due to this disproportionate responsibility, women also face stigma if they decide to give their children up for adoption, suggesting, "Where a woman's life or health is not at risk, the right to abortion is the right to have a reasonable time to decide whether to take on the responsibilities of motherhood."

Taking it a step further, Andrew Koppelman writing for the Northwestern University Law Review in 1990 argues that limiting abortion access essentially leads to forced motherhood and therefore forced labor. This, he says, violates the 13th Amendment, which prohibits involuntary servitude, and he argues this is an even more compelling argument for Roe v. Wade than women's equality or right to privacy.

Based on the Court's trimester framework, it held that abortion in the first two trimesters of pregnancy was a fundamental right. As a fundamental right, the right to abortion was subject to "strict scrutiny," as noted by The Atlantic. This made Roe v. Wade much harder to challenge on a constitutional basis than other laws. 

This is because of the levels of scrutiny courts use to determine if the government is violating the Constitution. The lowest level of scrutiny, called "rational bias," means that a government only has to show a "legitimate interest" in an issue to enact a law regulating it. Regulations that pass this test are unlikely to be deemed unconstitutional. "Intermediate scrutiny" is one level higher and states that a government must have an "important interest" in an issue to enact a law regulating it. This means that if a government can't prove the law is actually important, it could be deemed unconstitutional and overturned. 

Because Roe v. Wade deemed abortion a fundamental right, this meant that laws challenging abortion needed to pass "strict scrutiny," meaning a government had to prove they had a truly "compelling interest" for challenging the law. This is why Roe v. Wade sat virtually unchallenged for decades.

In the 1992 Supreme Court case of Planned Parenthood v. Casey, the Court was tasked with deciding whether to overturn Roe v. Wade. Although they upheld the Court's prior ruling, they determined that women retain the right to obtain an abortion, but they also stipulated that a state does have a compelling interest in protecting the life of an unborn child.

The Court ruled in this case that a state can "ban an abortion of a viable fetus under any circumstances except when the health of the mother is at risk." This decision also meant that, moving forward, laws restricting abortion would no longer require strict scrutiny and would instead be evaluated under an undue burden standard. It also eliminated the trimester framework that Roe v. Wade established. Then, in a 5-3 decision in the case of Whole Woman's Health v. Hellerstedt in 2016, the Court further ruled on what constitutes an "undue burden" on women seeking abortions and ruled that any provisions restricting abortions must offer medical benefits sufficient enough to justify the burden it imposes on women to access abortion.

Those who are opposed to abortion ultimately included Jane Roe herself, Norma McCorvey. In 1995, while working at a Dallas women's clinic, McCorvey began a friendship with one of the anti-abortion leaders of a group next door, evangelical preacher Reverend Phillip Benham (via CNN). McCorvey quickly converted to Evangelical Christianity, eventually left her lover Connie Gonzales, and blamed the violence at women's clinics on those who were part of the abortion rights camp, saying, "I personally think it's the pro-abortion people who are doing this to collect on their insurance, so they can go out and build bigger and better killing centers."

Initially when McCorvey converted, she spoke to reporters about how she still supported legalized abortion in the first trimester, but, after a few weeks while in the offices of Operation Rescue — the anti-abortion group through which she had begun her friendship with Reverend Benham — she changed her position. Later, she converted again, this time to Roman Catholicism. According to McCorvey, she realized, "All those years I was wrong. Signing that affidavit, I was wrong. Working in an abortion clinic, I was wrong. No more of this first trimester, second trimester, third trimester stuff. Abortion — at any point — was wrong."

In 2019, several states signed bills to ban or restrict abortion. In Ohio, Governor Mike DeWine signed a law that bans abortion as early as six weeks, which the New York Times notes is before many women even realize they are pregnant. DeWine acknowledged that the move was an attempt to make the Supreme Court rule on the law, saying, "So this is exactly what this is, and the United States Supreme Court will ultimately make a decision."

The governor of Georgia then quickly did the same, signing a bill that bans abortion once a fetal heartbeat can be detected — it was the fourth state to sign such a bill into law in 2019, though others were struck down. Then Alabama Governor Kay Ivey signed a bill to make abortion in Alabama a felony. According to AL.com, the bill's sponsors acknowledged that their intent was to "trigger litigation that could lead to a challenge of abortion rights nationally."

With these laws on the books and additional states working to introduce similar bills, the story of Roe v. Wade is far from over.