A History of Roe v. Wade

The past of abortion access in America and what it means for the future


Lorie Shaull, CC BY-SA 2.0 , via Wikimedia Commons

Norma McCorvey and her lawyer Gloria Allred stand in front of the Supreme Court in 1989.

Over the past month, the topic of abortion has been on the minds of many Americans. A few weeks after Texas passed a law banning abortion six weeks into pregnancy, Mississippi is now at the center of the debate. Jackson Women’s Health, located in Jackson, Mississippi, is the last remaining abortion clinic in the state and has seen an influx of patients after anti-abortion laws passed in Texas and other southern states. In an interview with ABC, clinic director Shannon Brewer said on the topic: “A lot of surrounding states have passed these crazy laws to where it’s 48 or 72 hours [waiting period for abortion], and so a lot of the women, instead of waiting that amount of time, they’re traveling from other states coming here.”

Of the nine justices on the court, six are Catholic, including Amy Coney Barrett.

Amid this increase of patients, the clinic is also facing legal challenges. In a July brief, Mississippi Attorney General Lynn Fitch argued that Roe v. Wade and Planned Parenthood v. Casey were “egregiously wrong” and should be overturned. Since this direct challenge to Roe v. Wade in Mississippi, the United States Supreme Court has scheduled to hear arguments on December 1st that could lead to its overturn. Dobbs v. Jackson Women’s Health is the first major abortion case that the Supreme Court will hear after the appointment of Justice Amy Coney Barrett, tipping the court to a conservative majority.

With this new challenge to abortion, questions and discussions raised initially by Roe v. Wade are resurfacing. However, the debate over abortion in the United States stretches further back than the 1970s and may provide insight into the upcoming case. Prior to the 19th century, abortion was legal in the United States before “the quickening,” when a woman could first feel the movements of a fetus. The topic, however, was still divisive, and methods could be fatal. Herbs could be easily grown in gardens or found in woods and given to colonial women for “bringing on the menses,” which led to commercial selling in the 1800s. Some of the first laws concerning abortion in the 1840s and 1850s were poison-control laws, banning the use of certain abortion-inducing drugs. During this period, the American Medical Association began to call for the criminalization of abortion. The rising xenophobia in the country fueled these calls as immigration from western Europe increased, and Americans grew concerned that abortion would lead to declining birth rates in American-born, white, Protestant women. In 1869, the Catholic Church banned abortion at any stage of pregnancy. This ban was followed by the passing of the Comstock Law in 1873, criminalizing sending contraceptives or abortion-inducing drugs through U.S. mail but not criminalizing abortion per se. However, by the 1880s, it was outlawed in most states.

In Roe v. Wade, the Supreme Court ruled that access to abortion is a right privacy protected under the 14th amendment.

Almost one hundred years later, the Supreme Court struck down a law banning the distribution of birth control to married couples in 1965, ruling that it violated privacy under the Constitution. This ruling would set the basis for a decision on the legalization of abortion. Then came Roe v. Wade. In 1969, Norma McCorvey, the woman that would become known as Jane Roe, attempted to get an illegal abortion after an unwanted pregnancy. A year after in 1970, Hawaii became the first state to legalize abortion, and New York followed soon after. At the time, McCorvey was in her twenties and living in Texas, where abortion was only legal if to necessary to save a woman’s life. After no success in getting an illegal abortion, McCorvey was referred to attorneys Linda Coffee and Sarah Weddington, who filed a lawsuit on her behalf. A Texas district court ruled that the abortion ban was illegal for breaching privacy, but the case continued to be appealed, eventually reaching the Supreme Court.

Justice Harry Blackmun, writer of the Roe opinion.

In a 7-2 decision, the United States Supreme Court struck down the Texas law banning most abortions and effectively legalized abortion across the country. The court divided pregnancy into three trimesters, declaring that the decision to abort in the first trimester is solely the woman’s; in the second trimester, the government could regulate abortion but not ban it. Lastly, states could prohibit abortion in the third trimester except when a women’s health is in danger.

In 1992, the last major abortion case went before the Supreme Court: Planned Parenthood v. Casey. In a 5-4 decision, Roe v. Wade was reaffirmed, however, it set a new standard for laws restricting abortions. The court upheld restrictions on abortion without informed consent, parental consent, and waiting periods, but ruled that regulations could not place an “undue burden” on women. The court defined this as a “substantial obstacle in the path of a woman seeking to an abortion before the fetus attains viability.”

Today, pro-choice advocates and Jackson Women’s Health argue that

Over 45 years of abortion access hang in the balance in this upcoming case.

these continued affirmations for abortion access by the Supreme Court should be respected and Roe v. Wade upheld. Though the court is currently a conservative and Catholic majority, clinic director Brewer is not yet convinced that they will make the decision to overturn, stating in an interview with ABC: “I kind of think about [the justices] that are on there now, but I’m not quite sure if these people actually want to be remembered for overturning [Roe]…I’m not convinced of that quite yet, honestly.” With these rights on the line, only time will tell. After hearing arguments in December, the Supreme Court is set to issue a decision by the end of June next year.