Fifty years ago the nine Supreme Court Justices made a landmark decision that would verify the right to continue or terminate a pregnancy. This verified its inclusion within the framework of the right to liberty afforded by the Constitution. The decision was not unanimous and even the opinions of the majority differed greatly while still arriving at the same conclusion. To understand the importance and continued debate over this landmark decision it is valuable to examine the opinions of the majority and dissenting.
The case began in 1970 when Jane Roe, now known to be Norma McCorvey, began a legal battle with Henery Wade the then district attorney of Dallas, Texas. Roe and her constituents argued that the right to an abortion was absolute and should be able to be performed at any time under any circumstances of the sole volition of the woman seeking it. They claimed that the laws introduced in Texas infringed on multiple rights afforded by the Bill of Rights as well as the Fourteenth Amendment [8]. The state of Texas argued they have “an interest in safeguarding the health, maintaining medical standards, and protecting prenatal life” [4]. The state also argued that a fetus should be recognized as a person and thus would be protected by the Fourteenth Amendment. This would imply that personhood began at conception. This argument was particularly continuous during deliberations. When creating this argument it was clear that the state had settled on a particular definition of life that was chosen in their best interests. [8] The majority opinion that was provided following the case stated “We do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.” [4] The court laid out a framework that they felt would balance the state’s interest to “protect life” and the personal right to privacy. This framework had varying levels of permissiveness for state intervention in abortions based on trimester. [8]
The opinion of the court was delivered by Justice Harry Blackmun. This opinion was to represent the justifications and framework laid out by himself and the six other justices that made up the majority. Blackmun’s remarks on the case cited the precedent that was set by Griswold v. Connecticut eight years prior. The case notably overturned a Connecticut law that was set to prohibit the use or encouragement of contraceptives [2]. In the majority opinion that was given during the Griswold trial Justice Douglas stated that the law was in violation of the “right to marital privacy” [4]. Blackmun stated that this established a right to privacy that is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” [4]. This decision echoed the Due Process clause set forth by the Fourteenth Amendment. Just a year prior to the decision on Roe the fourteenth amendment’s relationship with the right to privacy was qualified during the case of Board of Regents v. Roth. The majority opinion of this case stated “In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed” [9].
The dissenting opinion was held by two justices, Byron White and Willam Rehnquist. White felt that the framework that was laid out by the justices making up the majority was incredibly contradictory, stating, “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” [4]. In general, both justices held that the court had made an overreach in making a ruling on “extending constitutional protections to a right not found in the Constitution” [4]. In a rather blatantly partisan comment by Justice White, he stated, “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” [4]. In addition to these critiques, Rehnquist also argued that much of the “right to privacy” that the majority’s opinions relied on lay in the fourth amendment and was solely related to illegal search and seizure and had no implications on abortions. [5] In the conclusion of their opinion, it was clear that they thought the decision of the regulation and restriction of abortion should be left up to the state.
Last year the precedent set by Roe was overturned. This was a moment that those who have been supporting Roe from the beginning were hoping would never happen. The contrast between the majority and the dissenting in last year’s case, Jackson v. Dobbs is stark compared to the 1973 decision. Justice Samuel Alito stated, “Roe was egregiously wrong from the start” [3]. The majority opinion written by Justice Alito was reminiscent of the critiques made by the two dissenting justices from the original decisions. He raised questions about the fourteenth amendment arguing that the rights protected in the Due Process Clause had to be “deeply rooted in this Nation’s history and tradition” [3].
Those that have lived through both the birth of Roe and the subsequent overturning have a unique perspective on how memory has played out. An article written in the Washington Post highlights the stories of the aforementioned. Due to the divisiveness of the decision and at times vitriolic passion exhibited by both sides of the argument the two social groups’ collective memory is distinct. For some, it goes back to childhood. One woman interviewed, Suzanne Brunzie remembers seeing girls being taken to maternity homes to complete their unwanted pregnancies so they did not burden the communities in which they lived, were educated, and worked. She said, “I remember thinking out there in the world, there’s got to be thousands and thousands of women who deserve an alternative.” [1]. As debate and opinion continue around the Roe and Dobb’s decisions collective memory will start to shift. For a new generation, the opinions put forth by the Justice in the case heard a year ago will be the lens through which they view the topic of abortion and women’s healthcare. This new lens will provide a new perspective and a platform for many fighting the fight that those before them did in the seventies.
– Spencer Hood
Works Cited
[1] Branigin, Anne. “Coming of Age during Roe v. Wade: Women Tell Us How They Saw the Moment Then and Now.” The Washington Post, WP Company, 3 May 2022, https://www.washingtonpost.com/lifestyle/2022/01/21/womens-memories-roe-decision-1973/.
[2] Eisen, Lauren-Brooke, et al. “Roe v. Wade and Supreme Court Abortion Cases.” Brennan Center for Justice, 19 Apr. 2023, https://www.brennancenter.org/our-work/research-reports/roe-v-wade-and-supreme-court-abortion-cases#:~:text=Justices%20William%20Rehnquist%20and%20White,such%20as%20protecting%20a%20fetus.
[3] Gerstein, Josh, and Alexander Ward. “Exclusive: Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows.” POLITICO, 3 May 2022, https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473.
[4] Konkoly, Toni. “The Supreme Court. Law, Power & Personality. Famous Dissents. Roe v. Wade (1973): PBS.” The Supreme Court. Law, Power & Personality. Famous Dissents. Roe v. Wade (1973) | PBS, Dec. 2006, https://www.thirteen.org/wnet/supremecourt/personality/landmark_roe.html.
[5] Lewis, Jone Johnson. “The Historic Roe v. Wade Supreme Court Decision.” ThoughtCo, ThoughtCo, 6 Feb. 2021, https://www.thoughtco.com/roe-v-wade-overview-3528244.
[6] “Roe v. Wade.” Center for Reproductive Rights, 8 Dec. 2022, https://reproductiverights.org/roe-v-wade/.
[8] Temme, Laura. “Roe v. Wade Case Summary: What You Need To Know.” Findlaw, 17 Mar. 2023, https://supreme.findlaw.com/supreme-court-insights/roe-v–wade-case-summary–what-you-need-to-know.html#arguments.
[9] United States Supreme Court. “BOARD OF REGENTS v. ROTH, 408 U.S. 564 (1972).” Findlaw, 1972, https://caselaw.findlaw.com/court/us-supreme-court/408/564.html.
Image and Captions
[10] Fine, Camille. “Roe v. Wade Overturned: What Protests for Abortion Rights, Anti-Abortion Looked like in the 1970s.” USA Today, Gannett Satellite Information Network, 27 June 2022, https://www.usatoday.com/picture-gallery/news/politics/2022/06/27/roe-v-wade-original-protest-photos/7746360001/.
[11] Treisman, Rachel. “The Original Roe v. Wade Ruling Was Leaked, Too.” NPR, NPR, 3 May 2022, https://www.npr.org/2022/05/03/1096097236/roe-wade-original-ruling-leak.
I like how you discussed both sides of the opinion: the seven justices in favor of the original decision, and the two who were not, even providing quotes from those opposed to ruling in favor of Jane Roe. I also like how you used another primary source at the end, who was not just a man talking about women’s bodies, but a woman who watched others go through unwanted pregnancies and hopes for a better solution.
I think it’s interesting that you included the majority and minorities’ views. It was a great example of the partiality of memory. Since Roe v. Wade passed, when we think about the ruling we don’t think about any objections the supreme court justices would have. Our association of objections to the ruling is of conservative politicians and private groups such as anti-abortion religious groups. I think the picture was a great inclusion because it shows how the final verdict was decided by a group of men. This plays into the vernacular memory of men governing women’s bodies which is a key point pro-choice supporters highlight. I like the inclusion of Suzanne’s excerpt, her memory of pregnant women in her hometown was particular to her but the stigmatization of pregnant women, especially unmarried pregnant women, is a universal memory that continues to be prevalent today.
Hey, good work on analyzing the Supreme Court’s opinion statements! I was trying to work in some analysis of Dobbs’ opinion statement for my piece, and found it pretty difficult just due to the sheer quantity of information provided – good work sorting it out. Including a diversity of supplementary sources, both in terms of men and women, was a great idea for your site; it really helped demonstrate the idea of competing narratives in memory! I feel like doing a little more elaboration on women’s opinions of Roe v. Wade’s overturning would really help your page hit home. Overall, excellent job!