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Photo of pro-choice activists at a march.
The landmark 1973 case Roe v. Wade expanded the newly articulated right of privacy to include the right of a women to terminate an unwanted or dangerous pregnancy. Above, pro-choice activists at a march.

Photo taken from the U.S. House of Representatives Web site
Roe v. Wade (1973)

On January 22, 1973, the Supreme Court issued its opinion in one of the most famous -- and controversial -- cases in its history: Roe v. Wade. A 7-2 majority held that the Fourteenth Amendment protects a woman's "right to privacy," and that this right encompasses the right to choose to terminate an unwanted or medically dangerous pregnancy. The decision overturned antiabortion statutes in states throughout the country and jump-started a politically powerful "right to life" movement that continues to oppose the decision and seek its reversal. Justices Byron White and William Rehnquist dissented.

State antiabortion statutes had been common since the late 19th century, but in the wake of the women's rights movement and the so-called "sexual revolution" of the 1960s and 1970s, many women had begun fighting -- through political channels and legal challenges -- for increased access to abortion. Because the struggle for access to safe and legal abortion was increasingly being waged within the nation's legal system, in 1971 the Supreme Court agreed to hear the Roe case even though it could not do so in time for the pregnancy of plaintiff Norma McCorvey to be affected by its outcome. (At the time of the case, McCorvey employed the pseudonym "Jane Roe" so as to keep the details of her pregnancy private.) The case was argued first in December 1971 and again nearly a year later, in October 1972.

Justice Harry Blackmun delivered the opinion of the Court. Citing the precedent of Griswold v. Connecticut, the 1965 case that had overturned a Connecticut law banning the use of contraceptives among married people, Blackmun held that the "right to privacy" established in the earlier case was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." As in Griswold, the Court acknowledged that the Constitution does not explicitly name a right to privacy, but located that right within the meaning of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, as well as in the "penumbras" of the Bill of Rights.

Although Blackmun declined to define a fetus as a "person" under the meaning of the Fourteenth Amendment, he did acknowledge that the right to access an abortion was "not unqualified" and had to be balanced against important, and valid, state interests in protecting the life of the fetus. Blackmun considered the prevailing medical opinions of the day regarding the "viability" (or ability to survive outside of the womb) of the fetus at different points in its development and held that as the pregnancy advanced, the state's interest in protecting the fetus grew inversely to that of a woman's right to terminate the pregnancy. For legal purposes, however, the Court declined to specify a point at which life begins. To that question, Blackmun stated only, "When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

In a vitriolic dissent, Justice Byron White lambasted the Court's decision as arbitrary at best, and "an exercise of raw judicial power." Finding Blackmun's framework contradictory, White wrote: "If the state had an interest in protecting the potential life of the fetus" -- which, he believed, the state did -- "that interest existed, and was equally strong, throughout the pregnancy." White -- and also, separately, William Rehnquist -- criticized the Court for extending constitutional protections to a right not found in the Constitution, and for overturning statutes he felt were no more restrictive than many in place at the time of the adoption of the Fourteenth Amendment, one of the main amendments used by the majority to locate the right to privacy. "The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries," wrote White. "Regardless of whether I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States."

The Court's decision in Roe was one of the most divisive in its history, and had the effect of mobilizing a vocal "right to life" antiabortion movement. Armed in part with White's and Rehnquist's dissents, abortion opponents have lobbied state legislatures to place restrictions on abortion and put political pressure on presidents to appoint judges to the appellate courts and to the Supreme Court who they believed would overturn the ruling. Advocates for a woman's "right to choose" have been equally strong-willed in their defense of the decision. Concerns over the potential for the Court to overturn Roe have played a large role in the political battles over subsequent appointments to the Court -- most notably in the failed nomination of Robert Bork, in 1987.

So far, the Court has declined to overturn Roe, but in subsequent abortion cases it has upheld some restrictions on the procedure. It has held, for example, that Congress may prohibit the use of Medicare funds to pay for abortion and that states are not required to pay for abortions for indigent women. Revisiting Roe in the 1992 case Casey v. Planned Parenthood, the Court devised a new test to determine the constitutionality of a given restriction: as long as the restriction does not place an "undue burden" on a woman's access to abortion, it is permissible. Under this standard, the Court upheld a Pennsylvania law requiring parental notification for minors seeking abortion as well as a mandatory 24-hour waiting period, but struck a provision requiring women to notify their spouses of their intention to have an abortion.

AUTHOR'S BIO
Toni Konkoly is a production assistant at Thirteen/WNET.

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