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Roe v. Wade
The Post-Roe Court
Casey and Stenberg

Reproductive issues were largely a private affair early in American history. Although abortion was deemed illegal under English common law, the state rarely took any interest in prosecuting those cases that became public.

Public attitudes changed dramatically in the early 19th century, driven in part by new social trends sweeping the nation. Early American feminists and others began to argue that women should have control over their reproductive lives, bringing such issues as birth control and abortion into the public arena for the first time.

As the subject of abortion gained public attention, it became increasingly acceptable for doctors, midwives and others to publicly advertise their services for helping to end unwanted pregnancies. Powders, herbs and other substances meant to induce miscarriage became widely available. But at a time when the medical profession and the drug industry were relatively primitive and largely unregulated, many women who sought abortions were harmed or even killed in the process.

In 1821, Connecticut became the first state to criminalize abortion, followed by New York seven years later. These and subsequent laws passed by other states targeted those who performed abortions rather than the pregnant women who sought to have them. The aim was to protect pregnant women (and their fetuses) from injury, not to prosecute them.

By the beginning of the 20th century, most states had outlawed abortion, except in cases when a woman’s life was in danger. Although a few states enacted more liberal laws, allowing for exceptions when a woman’s life or health was in danger, it was not always clear what health concerns would justify an abortion.

Despite the near universal prohibition on abortion, social forces were pushing the country toward greater political and sexual freedom for women. The increasingly vocal and influential women’s suffrage movement (which succeeded in securing the vote for women in 1920) strengthened efforts to encourage the widespread availability of birth control and fostered new notions of sexuality that emphasized its pleasurable nature. Moreover, as American society was becoming more urban and affluent, men and women were opting for smaller families.

By the mid- to late 1960s, the nation was undergoing a sexual revolution, and a new women’s liberation movement was gathering steam. For movement leaders, the right to an abortion was a key demand, on par with equality in the workplace, in marriage and in other areas of society. In 1967, Colorado became the first state to greatly broaden the circumstances under which a woman could legally receive an abortion. By 1970, 11 additional states, including California and Massachusetts, had made similar changes to their criminal codes and another four states – New York, Washington, Hawaii and Alaska – had completely decriminalized abortion during the early stages of pregnancy.

Meanwhile, abortion rights advocates launched a series of court challenges to many older state laws, usually arguing that they were overly vague or that they violated the right to privacy or equal protection guaranteed under the Constitution. These early challenges were largely rejected by state and lower federal courts.

Roe v. Wade

In the early 1970s, the Supreme Court agreed to hear two abortion cases. In Roe v. Wade, the court considered a challenge to a Texas law outlawing abortion in all cases except those in which the life of the mother was at risk. The second case, Doe v. Bolton, focused on a more lenient Georgia law that allowed a woman to terminate her pregnancy in cases when either her life or health was in danger. In both cases, lower federal courts had declared the statutes unconstitutional, ruling that denying a woman the right to decide whether to carry a pregnancy to term violated basic privacy and liberty interests contained in the Constitution.

In a pair of companion 1973 decisions, the Supreme Court, by a vote of 7-2, affirmed the lower courts’ conclusions and struck down both statutes. In Roe, the more important of the two decisions, the court majority concluded that constitutional rights to privacy and liberty did indeed protect a woman’s right to terminate her pregnancy. Writing for the majority, Justice Harry Blackmun acknowledged that while “the Constitution does not explicitly mention any right to privacy,” a number of prior decisions have found “a guarantee of certain areas or zones of privacy.” He added that this guarantee is grounded in several amendments in the Bill of Rights (the First, Fourth, Fifth and Ninth) and in the 14th Amendment’s guarantee of liberty, which, taken together, create these zones of privacy in areas such as marriage, contraception, family relationships and child rearing.

Blackmun’s privacy rationale in Roe grew out of earlier high court decisions, most notably Griswold v. Connecticut in 1965. In Griswold, Justice William Douglas, writing for the majority, struck down a Connecticut anti-contraception law on the grounds that it intruded on the right of marital privacy. The court asserted that “zones” of personal privacy are fundamental to the concept of liberty under “the protected penumbra of specific guarantees of the Bill of Rights.”

Having concluded in Roe that abortion is a fundamental right, the court declared that only a “compelling state interest” could justify the enactment of state laws or regulations that limited this right. Still, the court also recognized that the state had an “important and legitimate interest” in protecting the health of the mother and even “the potentiality of human life” inside her. So when did the state’s legitimate concern for maternal and fetal protection rise to the level of a compelling interest?

To answer that question, Blackmun created a legal framework based on the nine-month period of pregnancy, breaking it into three distinct tiers and giving the state greater interest and regulatory latitude in each successive one. The first tier ran through the first trimester of a pregnancy. Given that during the first three months the risks associated with abortion are actually lower than those associated with childbirth, the state would have no real interest in limiting the procedure in order to protect a woman’s health, Blackmun ruled. During this period, the state could only impose basic health safeguards – such as requiring that the procedure be performed by qualified health professionals – and could in no way limit access to abortion.

The second tier ran from the end of the first trimester to the point of fetal viability – between about 24 and 28 weeks. Here, Blackmun determined, the state has an interest in protecting maternal health. It can regulate abortion in furtherance of that interest, but only to protect the health of the mother. In other words, regulations enacted had to be directed toward ensuring maternal health and could not be aimed at protecting a fetus or limiting access to abortion services. So, for example, a state law requiring a doctor to receive a woman’s informed consent before performing an abortion would be constitutional as long as the requirement aimed to protect maternal health (describing the procedure and risks, etc.) and was not created to dissuade a woman from terminating her pregnancy.

The third tier encompassed the period after fetal viability, which was defined as that time when the fetus can survive outside the womb, either naturally or through artificial means. At this point, the majority wrote, the state had an interest in protecting “potential life.” Indeed, after viability, the state could even proscribe abortion, as long as the procedure was still allowed in cases when the life or health of the mother was at risk.

In Doe, the same seven-justice majority largely restated and fleshed out their ruling in Roe. Once again writing for the majority, Justice Blackmun determined that state regulations that could create procedural obstacles to abortion – such as requirements in this particular case that abortions be performed in hospitals or that they be approved by two doctors – violated a woman’s fundamental right to terminate her pregnancy.

The Post-Roe Court

Roe proved to be one of the most significant decisions ever handed down by the Supreme Court, perhaps rivaled in the 20th century only by the landmark 1954 school desegregation case, Brown v. Board of Education. Unlike Brown, however, Roe has remained controversial in the decades since it was decided.

In the years immediately following Roe, the Supreme Court grappled with a host of issues that naturally arose from the decision, including questions concerning informed consent, parental consent and spousal-consent requirements, as well as notification requirements and waiting periods. In these early cases, the court generally struck down most laws regulating abortion and upheld only a few that, in the court’s view, did not significantly limit a woman’s right to terminate her pregnancy. In these cases, the court also affirmed Roe and its trimester-based framework.

The first small crack in Roe jurisprudence came in 1989, with the high court’s decision in Webster v. Reproductive Health Services. At issue was a Missouri statute that barred public facilities from being used to conduct abortions and prohibited public health workers from performing abortions unless the life of the mother was at risk. The measure also defined life as beginning at conception and directed physicians to perform fetal viability tests on women seeking abortions who were 20 or more weeks pregnant.

In a highly fractured 5-4 decision, the court upheld the constitutionality of the statute. Writing for the majority, Chief Justice William Rehnquist said the law’s declaration that life begins at conception did not contradict Roe because it was contained in the statute’s preamble, and thus had no real impact on access to abortion. The majority also held that prohibiting the use of government workers or facilities to perform abortions was acceptable because the right to an abortion established in Roe did not include an affirmative right to government assistance in obtaining one.

The majority also ruled that the requirement of viability testing at 20 weeks was constitutional, although for disparate reasons. Justice Rehnquist, joined by Justices Byron White and Anthony Kennedy, argued for dispensing with part of Roe‘s trimester system, which, in the second trimester allows only for laws aimed at protecting the mother’s health. The framework had come to resemble “a web of legal rules” rather than “constitutional doctrine,” according to Rehnquist. The three justices also maintained that the state had an interest in protecting potential life even before viability, making the 20-week requirement valid even if fetal viability normally occurs after 20 weeks. “We do not see why the state’s interest in protecting potential human life should come into existence only at the point of viability and should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability,” Rehnquist wrote.

In a concurring opinion, Justice Antonin Scalia argued that the majority opinion was “indecisive” and “stingy” and that Roe should be overturned. Justice Sandra Day O’Connor, the fifth and final member of the majority, also concurred in the decision, but for very different reasons. Unlike her colleagues in the majority, O’Connor argued that Roe‘s trimester system, while problematic, should neither be modified nor overturned in this case. She determined rather that the testing requirement passed constitutional muster because it did not impose an “undue burden” on a woman considering an abortion.

In a blistering dissent, Justice Blackmun took Justices Rehnquist, White and Kennedy to task for attempting to overturn Roe by what he claimed were stealth tactics. “The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly,” he wrote.

Casey and Stenberg

Although Roe and its trimester system survived Webster, Blackmun’s fears were at least partly realized. The Webster decision produced a new majority on the court with a greater willingness to uphold state restrictions on abortion. The decision also set the stage for more significant changes in the Roe trimester framework, changes that would come a mere three years later in the 1992 decision Planned Parenthood of Southeastern Pennsylvania v. Casey.

As in Webster, Casey involved a challenge to a wide-ranging abortion law that included an informed consent requirement as well as a 24-hour waiting period for women seeking abortions. In addition, the statute required a minor to obtain the consent of at least one parent or guardian, and for a wife to inform her husband of her plans to terminate her pregnancy. In the cases of both the minor and spousal requirements, various waivers were made available for extenuating circumstances.

In Casey, the court rendered an even more splintered decision than it had in Webster. The court’s three centrists – Kennedy, O’Connor and David Souter – took the unusual step of issuing a joint opinion authored by all three justices. They were joined by the court’s liberal wing – John Paul Stevens and Blackmun – in affirming Roe‘s core principle: that the state may not prohibit pre-viability abortions. The three centrists were then joined by the court’s more conservative wing – Rehnquist, Scalia, White and Clarence Thomas – in upholding all of the Pennsylvania statute’s requirements except the provision concerning spousal notification.

In affirming Roe, the court argued in favor of maintaining the constitutional status quo for reasons that seemed to go beyond legal precedent. “The Constitution serves human values,” wrote Justices Kennedy, O’Connor and Souter, “and while the effect of reliance on Roe cannot be exactly measured, neither can the certain costs of overruling Roe for people who have ordered their thinking and living around that case be dismissed.” In other words, the justices were arguing, Roe has created expectations that should not easily be discarded.

At the same time, the court partly dismantled and modified the trimester framework that Roe had created and lessened the legal standard by which laws restricting abortion would be evaluated. Under Casey, states could now regulate abortion during the entire period before fetal viability, and they could do so for reasons other than to protect the health of the mother.

Roe’s essential prohibition on the regulation of abortion before the first trimester and its limitation on regulation between the end of the first trimester and the time of fetal viability were extinguished. A state’s interest in potential life could now arguably extend throughout a woman’s pregnancy.

The joint opinion also dispensed with the “strict scrutiny” standard of judicial review, which is the toughest and most rigorous legal standard when determining whether a law passes constitutional muster. Because Roe had declared access to abortion to be a “fundamental right” and had determined that states could only regulate it (prior to fetal viability) if there was a “compelling state interest,” subsequent abortion statutes had been evaluated under strict scrutiny. As a result, in the years immediately following Roe, many abortion regulations were declared unconstitutional.

But the court in Casey replaced strict scrutiny with a new and less rigorous “undue burden” standard. From then on, a pre-viability abortion regulation would be deemed unconstitutional only if it imposed an undue burden on a woman’s right to terminate her pregnancy.

Casey appeared to accommodate both sides in the abortion debate. By partly dismantling the trimester system and creating the less rigorous “undue burden” standard for determining the validity of an abortion regulation, the court gave states greater latitude to regulate abortion in the first five to six months of pregnancy. Indeed, the court in Casey applied the undue burden standard to the Pennsylvania laws and, with the exception of the spousal-consent requirement, found all to be constitutional.

But conservatives had viewed Casey as an opportunity to overturn Roe, and many believed the court – bolstered by new Republican appointed members Clarence Thomas and David Souter – would do so. By affirming Roe, however, the court solidified the decision’s status as legal precedent, thus affording it greater protection from future challenges. The addition of two abortion-rights supporters to the court in the 1990s, Ruth Bader Ginsberg and Stephen Breyer, effectively eliminated the threat to Roe by creating a solid six-justice majority in favor of keeping abortion a fundamental right.

Since Casey, the court has only decided one major abortion case, a challenge to a Nebraska law banning what opponents call the “partial birth” abortion procedure. The term partial birth refers to a medical procedure known as “dilation and extraction” (D&X), which involves terminating the pregnancy by partially extracting the fetus from the uterus, collapsing its skull and removing its brain. This procedure is usually performed late in the second trimester, between the 20th and 24th weeks of pregnancy.

In 2000, the Supreme Court accepted a case, Stenberg v. Carhart, challenging the constitutionality of a Nebraska law prohibiting partial birth abortion. Violation of the law was made a felony and punishment included possible fines and jail-time, as well as the automatic revocation of a convicted doctor’s state license to practice medicine.

In a 5-4 decision, the court ruled that the Nebraska law violated the Constitution as interpreted in Casey and Roe. Justice Breyer, delivering the majority opinion of the court, stated that the statute lacked the requisite exception “for the preservation of the … health of the mother.” Citing Casey, Breyer determined that the state may promote but not endanger a woman’s health when it regulates the methods of abortion.

In addition, the majority in Stenberg found the wording of the law unclear, because it could be interpreted by doctors to include not only the D&X procedure but other abortion methods as well. This ambiguity imposed an “undue burden” on a woman’s ability to choose an abortion, the majority ruled, as well as on all who perform abortion procedures using methods similar to partial birth, and who must fear prosecution, conviction and imprisonment.

The vote was unexpectedly close for a court in which support for the basic right to abortion was expected to garner six votes. In a surprising shift, Justice Kennedy dissented, emphasizing what he described as the “consequential moral difference” between the dilation and extraction method and other abortion procedures.

The court’s decision effectively rendered similar bans in more than 30 states unenforceable. Even so, in 2003 Congress passed and President George W. Bush signed the first federal law banning partial birth abortions. Abortion rights advocates immediately challenged the law, and lower courts, citing Stenberg, struck it down. But in 2007, the Supreme Court, in Gonzales v. Carhart, reversed course and upheld the federal partial birth ban, giving social conservatives a major victory and prompting many states to consider passing tougher restrictions on abortion.

For detailed overview of the arguments in Carhart and an analysis of the high court’s ruling, see the resources for Gonzales v. Carhart on the Abortion Resource Page.

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