Abortion Law Pre-Roe V. Wade: Understanding The Historical Context

Prior to Roe v. Wade, abortion laws varied across the United States. Some states had banned all abortions, while others had legalised them under certain circumstances. In 1821, Connecticut passed the first state statute regulating abortion, outlawing the procedure after 'quickening' (when the pregnant woman starts to feel the fetus's movement in the uterus). Many states followed suit, and by 1910, abortion was illegal in all states.

However, these bans did not stop abortions from taking place. Instead, they pushed providers and patients underground, with unlicensed practitioners performing unsafe abortions. In 1970, Texas resident Norma McCorvey (under the pseudonym 'Jane Roe') filed a lawsuit against Henry Wade, the district attorney of Dallas County, Texas, where abortion was illegal except when necessary to save the mother's life. The case eventually reached the Supreme Court, which ruled in favour of McCorvey, establishing a federal constitutional right to abortion.

Roe v. Wade was a landmark decision of the U.S. Supreme Court in 1973

The Supreme Court ruled in favour of McCorvey, holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion. The Court also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life.

The Court's decision in Roe v. Wade was controversial and was criticised by some in the legal community. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision. In June 2022, the Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization, ending the constitutional right to abortion.

The Supreme Court's ruling in Roe v. Wade decriminalized abortion nationwide

The Ruling

On January 22, 1973, the Supreme Court ruled that the Constitution of the United States generally protected a right to have an abortion. The ruling struck down many abortion laws and caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be.

The case was brought by Norma McCorvey, under the legal pseudonym "Jane Roe", who, in 1969, became pregnant with her third child. McCorvey wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother's life. Her lawyers filed a lawsuit on her behalf in a federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional.

The Supreme Court's decision in Roe was among the most controversial in U.S. history. The ruling held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion. It also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life.

The Aftermath

While the ruling in Roe v. Wade was a victory for abortion-rights advocates, it was not the end of the abortion debate in the United States. In the decades that followed, there were numerous attempts to reverse the decision, and many states continued to pass laws contradicting the standards laid out in Roe v. Wade.

In 2022, the Supreme Court officially reversed Roe v. Wade, declaring that the constitutional right to abortion, upheld for nearly half a century, no longer exists. The decision means that abortion rights will be rolled back in nearly half of the states immediately, with more restrictions likely to follow. For all practical purposes, abortion will not be available in large swaths of the country.

The Future

The next steps on abortion across the country will play out in a variety of ways, almost all of them resulting in abortion bans. Several states still have decades-old abortion bans on their books; with Roe overturned, those states could revert to a pre-Roe environment. Officials in such states could seek to enforce old laws, or ask the courts to reinstate them.

Another path to banning abortion involves "trigger bans," newer laws pushed through by anti-abortion-rights legislators in anticipation of the Supreme Court's action. Some 15 states have such laws in place, and they will take effect after 30 days.

In recent years, many states have also passed gestational bans prohibiting abortion at various stages of pregnancy. Courts have blocked many of those laws in response to legal challenges, but now those laws may take effect immediately.

A host of other restrictions could limit where, by whom, and under what conditions abortion can be provided. Some examples include laws requiring parental notification or consent for abortions involving patients who are minors, and other health regulations for doctors and clinics.

Legal experts say the court's decision will pose new questions for other courts to deal with – questions about how to apply the specific language of the final ruling to individual state laws. It is predicted that there will be "legal chaos" in states across the country in the immediate aftermath of the decision.

The decision in Roe v. Wade was controversial and was criticized by some in the legal community

Some legal scholars argued that Justice Blackmun's decision was not grounded in the U.S. Constitution. They claimed that the right to privacy, which the ruling was based on, was not mentioned in the Constitution, nor was it derivable from the values embodied within it. The decision was also criticized for its lack of reasoning and for being "legislative" rather than judicial.

Some critics also took issue with the trimester framework established by the ruling, which they saw as arbitrary and unworkable. They argued that the Court's role was to interpret the law, not to make it.

Despite the criticism, the Supreme Court reaffirmed Roe's central holding in its 1992 decision, Planned Parenthood v. Casey. However, in 2022, the Supreme Court overruled Roe in Dobbs v. Jackson Women's Health Organization, ending the constitutional right to abortion.

The Supreme Court's decision in Roe v. Wade was among the most controversial in U.S. history

The Supreme Court's decision in Roe v. Wade was also criticised for its trimester framework, which was later abandoned in the 1992 decision of Planned Parenthood v. Casey. The trimester framework was criticised for being "arbitrary", and for not taking into account the interests of doctors, who would have to deal with the practicalities of performing abortions.

The Supreme Court's decision in Roe v. Wade was also controversial because it radically reconfigured the voting coalitions of the Republican and Democratic parties in the following decades. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision. Despite this, polls into the 21st century showed that a plurality and a majority, especially into the late 2010s to early 2020s, opposed overruling Roe.

The Supreme Court's decision in Roe v. Wade was also criticised by some for its legal reasoning. In a highly cited article in the Yale Law Journal, the American legal scholar John Hart Ely criticised Roe as a decision that was disconnected from American constitutional law. He wrote:

> What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure... The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court's business.

The Supreme Court's decision in Roe v. Wade was also criticised by Laurence Tribe, who said:

> One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.

The Supreme Court's decision in Roe v. Wade was also criticised by liberal and feminist legal scholars, who argued that Justice Blackmun reached the correct result but went about it the wrong way. Others argued that the end achieved by Roe did not justify its means of judicial fiat.

The Supreme Court overturned Roe v. Wade in 2022

In 2022, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overruled Roe v. Wade, eliminating the constitutional right to abortion in the United States. The Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization was issued on June 24, 2022, and it overruled Roe v. Wade, which had been a landmark decision that legalised abortion in the country in 1973.

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization was based on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition" and was not considered a right when the Due Process Clause was ratified in 1868. The Court also stated that abortion was unknown in U.S. law until Roe v. Wade. This decision ended the constitutional right to abortion and gave states the authority to set their own abortion policies.

The impact of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization was significant, with one in three women living in states where abortion was not accessible. In the months following the decision, 18 states banned or severely restricted abortion, and more states were working on passing similar bans. The abortion bans that were implemented harmed Black, Latino, Indigenous, and other communities of colour, as they faced systemic racism and barriers to accessing healthcare.

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization was controversial, and it sparked protests and strong reactions from various groups. A majority of Americans disapproved of the decision, with nearly six in ten adults disagreeing with the ruling. The decision also widened partisan differences, with Democrats and Republicans sharply divided in their views. The impact of the decision was felt across various demographic groups, with majorities of Asian, Black, Hispanic, and White adults disapproving of it.

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization also had implications for the future of abortion access and reproductive rights in the United States. It led to concerns about the potential for further restrictions on abortion and the possibility of a constitutional amendment that could prohibit abortion nationwide. The decision also highlighted the role of state laws and the importance of state-level efforts to protect and expand access to abortion. Overall, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization in 2022 had far-reaching consequences and significantly altered the landscape of abortion rights and access in the United States.

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