Roe v. Wade happened because state abortion laws in the late 1960s and early 1970s varied so drastically that a woman’s access to a legal procedure depended almost entirely on which state she lived in, and a Texas plaintiff’s lawsuit gave the Supreme Court a clean vehicle to decide whether the Constitution had anything to say about that. Texas made almost all abortions a felony. New York, Hawaii, Alaska, and Washington had effectively decriminalized early abortions. Women who could travel did; women who couldn’t sought illegal procedures, and by the mid-1960s roughly 17 percent of pregnancy- and childbirth-related deaths came from those procedures. A federal constitutional challenge was, by 1970, close to inevitable.
The Legal Patchwork That Set the Stage
Through the middle of the twentieth century, abortion was a crime in nearly every state unless a doctor determined the procedure was necessary to save the woman’s life. Estimates of illegal abortions during the 1950s and 1960s ranged from 200,000 to 1.2 million a year. By 1965, close to 200 women a year were dying from them.
A reform movement gained ground in the 1960s. The American Law Institute proposed model legislation in 1962 that would allow abortion when the pregnancy seriously threatened the woman’s physical or mental health, when the fetus had severe abnormalities, or when the pregnancy resulted from rape or incest. Colorado adopted a version of the model in 1967. About a dozen states followed with similar reforms. Four states went further and removed criminal penalties for early abortions altogether: Alaska, Hawaii, New York, and Washington.
Most of the country did not move. That gap, between states rewriting their laws and states holding the line at near-total bans, produced the unequal access that made a federal question unavoidable.
Why Texas, and Why Norma McCorvey
Texas had criminalized abortion since the 1850s. Article 1191 of the Texas Penal Code made performing or attempting an abortion punishable by two to five years in prison, doubled if the woman had not consented. The single exception, under Article 1196, covered an abortion “procured or attempted by medical advice for the purpose of saving the life of the mother.”1Texas Attorney General. Opinion No. JH-369 – Texas Penal Code Articles 1191-1196 Nothing in the statute accommodated the woman’s broader health, pregnancies from rape, or severe fetal abnormalities.
Norma McCorvey was pregnant, wanted to end the pregnancy, and could not do so legally in Texas. Attorneys Sarah Weddington and Linda Coffee filed a class-action lawsuit on her behalf, using the pseudonym Jane Roe. They picked Texas precisely because its statute was among the harshest in the country, which made it a strong candidate for a facial constitutional challenge. Filing as a class meant a ruling would reach every woman similarly situated, not just McCorvey. The litigation moved slowly enough that McCorvey gave birth and placed the child for adoption long before the Supreme Court ruled.
The Constitutional Theory: Privacy Through Griswold
The Constitution does not mention abortion, and it does not mention privacy either. What Weddington and Coffee had was a recent Supreme Court decision that treated privacy as a right the Constitution protected even without naming it. In Griswold v. Connecticut (1965), the Court struck down a state ban on the use of contraceptives, holding that several amendments in the Bill of Rights created “zones” of privacy the government could not invade, particularly in intimate decisions about family and medical care.2Justia U.S. Supreme Court Center. Griswold v. Connecticut, 381 U.S. 479 (1965)
The Roe plaintiffs built on that foundation. They argued that the liberty protected by the Due Process Clause of the Fourteenth Amendment was broad enough to cover a woman’s decision about whether to continue a pregnancy,3Constitution Annotated. Amdt14.S1.6.4.1 Abortion, Roe v. Wade, and Pre-Dobbs Doctrine and pointed to the Ninth Amendment for the proposition that unlisted rights still belong to the people.4Congress.gov. U.S. Constitution – Ninth Amendment The logic was direct. If the Constitution protects a married couple’s decision about contraception, it should protect the more consequential decision about carrying a pregnancy to term.
How the Case Reached the Supreme Court
The lawsuit was filed in March 1970 against Henry Wade, the District Attorney of Dallas County, who was responsible for enforcing the criminal abortion statutes. A three-judge panel in the U.S. District Court for the Northern District of Texas found the Texas laws unconstitutionally overbroad and impermissibly vague, and held that they infringed on a fundamental right to choose whether to have children, protected by the Ninth Amendment through the Fourteenth.5Justia. Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970)
But the panel declined to issue an injunction against enforcement. Prosecutors could still, in theory, bring charges under statutes a federal court had just declared unconstitutional. That half-measure suited no one, and federal law at the time allowed a direct appeal from a three-judge district court panel straight to the Supreme Court, skipping the regional court of appeals.6Office of the Law Revision Counsel. 28 U.S. Code 1253 – Direct Appeals From Decisions of Three-Judge Courts
The Supreme Court first heard oral arguments in December 1971. Two new justices joined the Court while the case was pending, and the Court ordered reargument in October 1972 so the full bench could hear it together.7Justia U.S. Supreme Court Center. Roe v. Wade, 410 U.S. 113 (1973) The decision came down on January 22, 1973.
What the Court Decided
Justice Harry Blackmun wrote for a 7-2 majority. The Court held that the right to privacy was fundamental and included a woman’s decision about whether to end a pregnancy, but that the right was not absolute; states had legitimate interests in maternal health and in potential life, and those interests grew stronger as pregnancy progressed.7Justia U.S. Supreme Court Center. Roe v. Wade, 410 U.S. 113 (1973) To reconcile the two, the Court built a trimester framework: no state interference in the first trimester, health-based regulation permitted in the second, and restrictions allowed after viability so long as an exception remained for the life or health of the woman.
On the same day, the Court decided a companion case, Doe v. Bolton, which read the health exception broadly to include physical, emotional, psychological, and familial factors along with the woman’s age.8Justia U.S. Supreme Court Center. Doe v. Bolton, 410 U.S. 179 (1973) Together, the two decisions displaced the Texas statute and every state law like it.
Justices Byron White and William Rehnquist dissented. White called the majority’s ruling “an exercise of raw judicial power” and argued the question should have been left to state legislatures. That objection, that the Court had recognized a right the Constitution did not contain, is the one that outlasted the decision.
Where Roe Stands Now
Roe no longer controls. In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court held that the Constitution does not confer a right to abortion and expressly overruled both Roe and Planned Parenthood v. Casey, the 1992 decision that had reshaped Roe’s framework.9Justia U.S. Supreme Court Center. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022) Authority over abortion policy returned to the states. The uneven, state-by-state access that produced Roe in the first place is, in a different form, the legal reality again.