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It seems unlikely that a meeting at a pizzeria in Dallas, Texas, would be the beginning to a controversial landmark Supreme Court decision, but that is where the case that would legalize abortion in the United States began. Despite the passage of time, the simple mention of Roe v. Wade can cause impassioned and divisive arguments. The culture changes of the 1960s, the increasingly held belief in the right to privacy, shifts in medical opinion, and the makeup of the Supreme Court in 1973, all contributed to the decision in Roe v. Wade.[1]
Norma Leah McCorvey was born on September 22, 1947 in Lettesworth, Louisiana to Olin “Jimmy” and Mary Mildred Nelson. McCorvey grew up poor in a house with no indoor plumbing on a dirt road. In her autobiography, I Am Roe: My Life, Roe v. Wade , and Freedom of Choice , McCorvey describes her relationship with her mother as mentally and physically abusive and neglectful—a pattern which would continue into McCorvey's adulthood and have a significant impact on her life. Her father worked long hours and would sometimes disappear from McCorvey's life for long periods of time during time of estrangement from his wife.[2]
McCorvey's family moved to Houston, Texas when she was nine years old. Later, the family would relocate to Dallas, where her parents would eventually divorce. Her strained relationship with her mother, fueled by anger management issues, led to McCorvey being sent to state reform school at age eleven for stealing money from a service station where she worked. During the time period from 1958 to 1962, McCorvey was released twice, but ran away from home in order to be sent back. The third time she was released, at age 15, she was told that if she “messed up I would be sent to another place, more like a prison than a school.”[3]
Once released, McCorvey's mother arranged for her to board with a distant male relative. The first night she stayed there, he raped her. McCorvey remained silent out of fear that no one would believe her or that she would be sent to prison. Three weeks passed before McCorvey confided in her mother. Much to McCorvey's surprise, her mother believed her and confronted the relative. He denied the accusation and threw both women out of his house. McCorvey's mother allowed her to move back home and the crime went unreported.[4]
Sixteen years old and working as a carhop waitress, McCorvey met and married Ellwood “Woody” McCorvey, who was eight years her senior and divorced. Together the pair moved to California. When McCorvey revealed that she was pregnant, Woody McCorvey became physically abusive and knocked her unconscious. She left him and returned to her mother in Dallas, where she obtained a divorce and a restraining order. At age eighteen, McCorvey gave birth to a daughter she named Melissa Renee McCorvey.[5]
Upon her return to Dallas and during her pregnancy, McCorvey became increasingly active in the Dallas gay and lesbian scene. McCorvey identifies herself as a lesbian in her 1994 autobiography and describes how she had numerous girlfriends during her time at reform school as a pre-teen and teenager. Shortly after the birth of her daughter, McCorvey asked her mother to watch the child for a weekend, so she could visit a lesbian couple she was friends with. When she returned, McCorvey's mother had reported that she abandoned Melissa. McCorvey did not fight her mother because she did not think anyone would side with an eighteen year old lesbian single mother. One morning when she was hung-over from a night of drinking, her mother tricked her into signing over legal custody of her daughter by telling her she was signing insurance paperwork. McCorvey, angry at her mother and herself, began working at some of the gay and lesbian bars she hung out in and found a family in the community there.[6]
Soon McCorvey was in a relationship and living with a woman, who helped her get a job as a respiratory therapist in a Dallas hospital. It was there that she met and had a week-long sexual relationship with a male co-worker and became pregnant for the second time. McCorvey was fired from her job when she told them she was pregnant. She gave birth and placed the baby for adoption. McCorvey went back to working the bars, drinking heavily, and began abusing and selling drugs. She was fired from her bartending jobs and had a short-term affair with a man with whom she played pool. The man had a girlfriend and when the affair came to light, he drove her to Louisiana to see her mother and daughter and she never saw him again. After a short time, McCorvey could no longer be around her mother and went to work for a traveling carnival. That winter, McCorvey discovered that, at age twenty-one, she was pregnant for the third time. She felt numb and alone. She contacted a friend who wired her the money to return to Dallas, where she went back to tending bar. It was while tending bar that a customer suggested to McCorvey, “You don't want to have this baby? Why don't you get rid of it?” McCorvey became excited at the prospect that she could “get unpregnant.”[7]
It was not until she spoke with her gynecologist that McCorvey came to realize that abortion was illegal in Texas. McCorvey tried to find someone who knew where she could obtain an illegal abortion, but was unsuccessful. Her doctor referred her to Henry McCluskey, a Dallas adoption attorney. After hearing how determined McCorvey was to get an abortion, even if it was dangerous, McCluskey told her of two lawyers he knew who were looking for a plaintiff to challenge Texas' abortion law.[8]
Prior to the nineteenth century, abortion prior to quickening, or fetal movement was legal in the United States. At that time, until the fetus could move, it was not considered alive. Quickening was essentially the only way a woman might be able to discern that she was pregnant and not suffering from a natural obstruction of her menstrual cycle. In the 1820s the first legislation making abortion was a crime was enacted, but most early laws punished the abortionist, not the mother seeking the abortion, and were generally only enforced if the mother died during the attempted abortion. In 1847, the newly founded American Medical Association (AMA) led a new wave of opposition to abortion. The time period between 1820-1850 had seen a strong wave of “unrestricted entry of irregulars into the medical field.” In an effort to distinguish themselves from the “irregulars,” “regular” doctors, those who had medical school training, spoke out in opposition to abortion.[9]
Scientifically, regulars had realized for some time that conception inaugurated a more or less continuous process of development, which would produce a new human being if left uninterrupted. Consequently, they attacked the quickening doctrine on logical grounds that quickening was a step neither more nor less crucial in the process of gestation than any other.[10]
Even though the AMA took the position that performing an abortion violated the Hippocratic Oath, “regular” doctors were still performing abortions to keep from losing patients to “irregulars.” The easiest way for the AMA to get doctors to stop performing abortions was to “persuade state legislators to make abortion a criminal offense.”[11] A wave of new legislation criminalizing abortion swept the country.
Texas was no exception. In 1854, the Texas legislature “made abortion after quickening a crime carrying up to ten years in prison.”[12] In 1856, the criminal codes were revised, reducing the penalty to up to five years in prison, but also labeled deaths resulting from abortion murders, made it a crime to provide the means for an abortion, and “inserted a therapeutic exception in cases of life or death for the woman.” By 1858, it was illegal to attempt abortion, whether or not it was successful. By 1907, the state legislature allowed the State Board of Medical Examiners to refuse to examine or certify candidates who participated in “procuring, aiding, or abetting abortion.”[13] Further distinction appears in the 1919 law, which further allowed the State Board of Medical Examiners to cancel the license of any doctor who was convicted of a felony, which included “procuring, aiding, or abetting abortion.”[14] The 1961 Penal Code included all of the above mentioned laws and also labeled anyone who “furnishes the means for procuring an abortion knowing the purpose intended is an accomplice.”[15] These were the laws in effect in Texas in 1970 when Norma McCorvey was sought an abortion.
The period following World War II brought prosperity to America. More and more families entered middle class and felt real social pressure to conform to the values around them. Being an “unwed mother” was a violation of that social order and families went to great lengths to avoid the dishonor of an “illegitimate” child would bring. During this timer, when abortion was illegal, a woman who was pregnant and unmarried had very few options -- get married, hide the pregnancy and place the baby for adoption, or obtain an illegal abortion. To give up an illegitimate child was to “preserve their reputation and save both mother and child from a lifetime of shame.” Over a million babies were given up for adoption between 1945 and 1973 and it “is estimated that between 250,000 and 1 million [illegal] abortions took place every year in postwar years.” Illegal abortion was often dangerous, took place in non-sterile environments, leading to massive infections, hemorrhaging, and death. Up to 40 percent of maternal deaths in this time frame were attributed to illegal abortion.[16]
As the 1960s continued sexual attitudes began to change, as did the public opinion on birth control and abortion. National polls from 1962, showed that the majority of respondents favored the legalization of abortion in cases in which the mother's health or life was endangered or if there were a strong possibility that the child would be born with a severe deformity. By 1969, polls show that 40% of respondents favored laws allowing abortion at any time during the first trimester. A Harris Survey conducted in 1970 showed 79% of respondents felt that illegality of abortion endangered women's lives, with 68% of respondents in favor of legalizing abortion in an effort to protect women from dangerous illegal abortions.[17]
The 1960s also saw a shift in medical opinion regarding abortion. In 1967, Colorado, North Carolina, and California all passed reform abortion laws which were “sponsored by leading doctors and medical societies” allowing doctors and hospital authorities to determine whether or not abortion was appropriate based on the circumstances of the case. Also in 1967, “some 87% of American physicians favored a liberalization of the country's anti-abortion policies” and the American Public Health Association also called for reform. In 1968, the Texas Medical Association created a committee to determine if they should support changing Texas laws on abortion. The group decided, with a nine to one margin, to pursue reform in the area of abortion legislation. In October 1969, some of the country's leading psychiatrists also lent their support for abortion, though they were much more liberal than the Texas medical doctors, declaring, “it is the right of a woman to control her own reproductive life.” In 1969, Dr. Hugh Savage, presenting to the Texas Medical Association's legislative conference, said that 90% of doctors he polled in Texas were in support of “therapeutic” abortions. Savage declared that Texas should reform its laws to allow for abortion for mental or physical health reasons, fetal deformity, or in cases involving rape or incest, in addition to the already existing exception when the mother's life was at risk. Savage also reported that 66% of the doctors polled also “favored abortion for socio-economic reasons.” However, abortion remained illegal in Texas in 1970, unless necessary to save the mother's life.[18]
Sarah Weddington and Linda Coffee were two recent graduates of the University of Texas Law School. Despite doing well in law school, both Weddington and Coffee had trouble finding jobs. Coffee clerked for a federal judge and eventually found a bankruptcy law firm that was willing to hire her. Weddington stayed in Austin and began providing free legal counsel to a group of women graduate students who were counseling women on birth control. The group wanted Weddington to see if they could be prosecuted for providing information to women about reputable abortion clinics in Mexico. One of the women in the group questioned whether a federal lawsuit could void Texas' abortion laws. The graduate students wanted a woman lawyer to take the case for free and Weddington began researching, calling Coffee to help. Coffee had already begun researching the issue and knew of a married couple, Marsha and David King, willing to joining on a potential lawsuit, though the woman was not pregnant. The two young lawyers began to look for a plaintiff who was pregnant and wanted an abortion to become their plaintiff. They found one in Norma McCorvey.[19]
The three women met in February 1970 at Columbo's restaurant in Dallas. McCorvey describes being very nervous about meeting Weddington and Coffee. She felt they might look down on her for wanting an abortion or because she was poor and uneducated. When she felt the meeting was not going well after disclosing that she was lesbian and had abused alcohol and drugs, she lied and said the pregnancy was a result of rape. After questioning whether the rape had been reported and whether there were any witnesses, Weddington told McCorvey that since Texas law did not make exceptions for rape, then it would not make a difference to the case and she did not include the information in the lawsuit. McCorvey agreed to become the anonymous plaintiff for Weddington's and Coffee's challenge. She claims in her autobiography that she did not know that she probably would not be able to get an abortion and that Weddington and Coffee led her on in order to further their case. Weddington's and Coffee's version of the story differs on this point, the attorneys maintain that they explained to McCorvey at the first meeting “that it was unlikely a court would be able to hear the case in time for her to have an abortion…McCorvey had thus to be willing to forgo the abortion in order to win the legal right to one.” Thus, McCorvey became Jane Roe of Roe v. Wade . Weddington and Coffee made the lawsuit a class action suit on behalf of women in the same situation as Jane Roe.[20]
In addition to Norma McCorvey/Jane Roe, Coffee relied upon Marsha and David King who felt a “moral conviction” to fight for the right to terminate. The Kings took on the legal aliases of Mary and John Doe in the filing. In order to strengthen the lawsuit, Weddington and Coffee also sought to add a doctor who performed abortions. Lawyers Fred Bruner and Roy Merrill, Jr of Dallas asked if their client, Dr. Dr. James Hallford, who “had been indicted for performing an abortion on a woman who had contracted rubella,” could join the suit. Women who contracted rubella (also known as German measles) during pregnancy were at risk of delivering babies with severe birth defects, including defects of major organs, intellectual delays, as well as bone and growth problems.[21]
The other famous name in the case is Henry Wade. Wade was the Dallas County district attorney. Before serving as district attorney, Wade had been the county attorney in Rockwall, served as a Federal Bureau of Intelligence agent, and the assistant district attorney in Dallas. Wade was perhaps most well-known for his 1964 prosecution of Jack Ruby, the man who shot and killed Lee Harvey Oswald, the assassin of President John F. Kennedy. Wade “was not eager to prosecute abortion cases and had not brought many over the past few years.” However, as district attorney he prosecuted abortion cases when he had to and was known as a man who liked to win. Wade assigned the Roe case to John Tolle. Tolle would also be joined by Jay Floyd and Robert Flowers of the attorney general's office for the State of Texas. Unlike Wade, state attorney general Crawford Martin was eager for Floyd and Flowers to defend Texas' laws against abortion because he personally viewed abortion as murder.[22]
The consolidated case of Roe v. Wade was assigned to the Fifth Circuit Federal District Court and the hearing began on May 23, 1970. The three-judge panel included US District Judge Sarah Hughes, US District Judge William Taylor, Jr and US Circuit Judge Irving Goldberg. The case went to Federal District Court, rather than state court because the issue at hand dealt with the constitutionality of the law. Weddington and Coffey sought an injunction against District Attorney Wade to stop the prosecution of Dr. Hallford. The attorneys argued that Texas' abortion laws violated the rights of those seeking an abortion afforded by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.[23]
The oral arguments were made in front of only seven Supreme Court justices, as John Harlan and Hugo Black had resigned for health reasons before the start of the 1971 session. During the arguments in Roe , two new justices joined the court. Justice Harry Blackmun had been assigned to write the opinion in Roe and saw an opportunity to give himself more time. In December 1971 he “moved that the case be reargued” before the now full Supreme Court. In June 1972 Chief Justice Burger ordered a second round of oral arguments. Some scholars believe this was an attempt by Burger to sway the decision to his more conservative view, as incoming Justice William Rehnquist was a “consistently and ideologically committed conservative” and Justice Louis Powell, who while more moderate than Rehnquist, tended to lean right. In Griswold v Connecticut (1964), the Supreme Court had ruled that the First, Third, Fourth, and Ninth Amendments created a “zone of privacy” in marriage that prevented the state from prohibiting Planned Parenthood from counseling on the use of contraceptives.[24] Brunner's argument on behalf of Dr. Hallford was built on the vagueness of the law, which he claimed placed the burden on doctors to prove that abortions they had performed were within the exception that protected the life of the mother. The law “as written, reversed the doctrine of innocent until proven guilty.”[25]
John Tolle's defense for the state's position rested on the position that the embryo or fetus represented life and as such, the state of Texas had a duty to protect it. Tolle also argued that both Roe and the Does did not have “”standing” to sue. According to Tolle, the state law did not directly penalize pregnant women and Mary Doe was not even pregnant. In answer to Dr. Hallford's claim that the law was vague, he countered that the law was precise.[26]
On June 17, 1970, the judges unanimously ruled that Roe and Hallford had the proper standing to challenge Texas' laws, however, they dismissed the Does' claim. The panel ruled “the Texas abortion laws must be declared unconstitutional because they deprive single women and married couple of their right, secured by the Ninth Amendment to choose whether to have children.” The court denied the request for the injunction on behalf of Dr. Hallford, but did rule that the law was “overbroad and vague” and was not clear enough to for doctor's to know if they would be breaking the law and thus violated the Fourteenth Amendment's Due Process Clause.[27]
Both sides of the lawsuits appealed the decision. Weddington and Coffee appealed because they wanted the injunction against the Texas laws and because they were not happy that the Does' claim had been rejected. The Dallas district attorney's office and the attorney general of Texas appealed based on the ruling that the Texas laws were found unconstitutional. Because the injunction was not granted, Wade announced that the three pending abortion cases would be prosecuted, despite the laws being declared unconstitutional.[28]
Soon after the decision in favor of Roe in Dallas, the Fifth Circuit District Court in Atlanta made its decision in the abortion case Doe v. Bolton on July 31, 1970. Mary Doe was actually Sandra Bensing, who was“separated from her drifter husband, had three other children no longer living with her, and was again pregnant.” This case was designed to test the constitutionality of the Georgia law as Roe had done in Texas. The Fifth Circuit Court found “the logic of Roe persuasive.” The three-judge panel ruled that while “the state could regulate abortions to ensure that they were safe,” it “could not limit the reasons for which an abortion was granted.” Like in the Roe case, although the Georgia law was found to be unconstitutional, the injunction against enforcing the state's laws was not granted and thus, both sides appealed to the Supreme Court.[29]
In May 1971, the Supreme Court decided that it would hear the appeal of Roe v. Wade and consolidate it with the similar Georgia case, Doe v. Bolton. The oral arguments for Roe began on December 13, 1971. Supreme Court oral arguments are limited to thirty minutes for each side, which is often interrupted when the justices ask questions of the attorneys. Weddington argued against Jay Floyd of the attorney general's office.[30]
Weddington's argument was much the same as it had been in the original hearing in Texas. She asked the Court to uphold the lower court's ruling based on the right to privacy that had been established in Griswold . This “zone of privacy” afforded by the First, Third, Fourth, and Ninth Amendments. According to the argument, “[t]he right to decide to carry or end a pregnancy was merely a continuation of the right to prevent a pregnancy or conception through the use of artificial contraceptives.” Oral arguments were supported by detailed briefs submitted to the Court, including over forty pages of medical information and background on abortion and abortion laws. Amicus curiae (or “friend of the court”) briefs were submitted in support of Roe by a group of medical associations (including the American College of Obstetricians and Gynecologists, the American Psychiatric Association, and known and respected physicians, including those who challenged abortion laws in other states). Other briefs were submitted by the National Abortion Action Coalition, the New Women Lawyers, the Women's Health and Abortion Project, NOW (National Organization for Women), American Bar Association, National Conference of Commissioners on Uniform State Laws, and a detailed brief by Harriet Pilpel of Planned Parenthood. In the Planned Parenthood, Pilpel listed three key reasons why the Court should legalize abortion: abortion was statistically safer than childbirth in 1970 and 1971, legalizing abortion would allow poor women who did not have the funds to travel to attain an illegal abortion, and legalized abortion would not lead to an increase in the number of abortions, it would merely replace unsafe, illegal abortions with safe, legal ones.[31]
Jay Floyd of the Texas Attorney General's office argued that the case had no merit as Roe and Doe had no standing to sue. Floyd said that it was not likely that Roe was still pregnant at the time of the appeal (over a year had passed since the original case) and Doe was not pregnant. As for Hallford, Floyd claimed he was “merely trying to avoid trial on the two indictments.” Floyd did not offer any proof of this claim and Hallford claimed he was only trying to avoid future criminal charges.[32]
In response to Weddington's argument regarding privacy, Floyd acknowledged the right, but also pointed out limits to privacy in other areas of law. For example, under certain conditions, law enforcement may search a person or their home, which is usually considered private. While a woman has the right to privacy, Floyd argued the fetus was a person and as such, was entitled to its own “Fifth and Fourteenth Amendment rights to life and liberty that outweighed the mother's right to privacy.” The State of Texas had its own fair share of amicus curiae briefs including ones from known experts in medicine and science, Americans United for Life, and the attorneys general for Alabama, Connecticut, Kentucky, Nebraska, and Utah, all of which had abortion statutes similar to Texas.[33]
The Georgia case of Doe v Bolton, which the Court had decided to combine with Roe v Wade, was heard on the same day. The Georgia law in question allowed for abortion in the case of severe fetal deformity, in cases of rape, and when the woman's life or health was in danger. Those seeking abortions had to be residents of Georgia, the abortion had to take place in an accredited hospital, the procedure had to be approved by the hospital staff abortion committee, and doctors had to have two other doctors willing to agree with the assessment. Margie Pitts Hames, for Doe, argued the limitations of the Georgia statute made it too difficult to get a legal abortion. For the State of Georgia, Dorothy Toth Beasley maintained the state's position that the fetus was a person and the right to privacy did not extend to taking another's life.[34]
The second round of arguments for Roe v Wade and Doe v Bolton were held on October 11, 1972. As with the first argument, Weddington presented the oral argument for Roe and Texas Attorney General Robert Flowers replaced Jay Floyd in arguing for the state of Texas. The main focus of questioning by “the justices indicated the key point is whether or not at what point the fetus becomes a ‘person' with constitutional rights.” Flowers maintained that Texas officials considered that the fetus became a person at conception. To that point, Justice Potter Stewart questioned why Texas would allow any type of abortion, such as the exception made when a mother's health was endangered. Flowers later admitted that he had no prepared very little for the argument and was not able to satisfactorily answer the question. Weddington reiterated that whether or not Jane Roe was actually still pregnant was irrelevant, as “she represented a class of women who faced her anguish.” She also cited cases from New York in which the state “had denied that a fetus had constitutional rights.”[35] Justice Byron White asked “if the Court found that fetuses had constitutional rights” at what point was it the duty of the state to determine whose rights should prevail. In original arguments, Weddington maintained that a woman's right to abortion should not be limited at all, but here she acknowledged that New York law limited elective abortion to prior to 24 weeks gestation. Justice Harry Blackmun also questioned whether abortion was in violation of a doctor's Hippocratic Oath to do no harm. Weddington again argued that the fetus was not a person and gave evidence that many physicians did not believe abortion went against their oath, as evidenced in the brief submitted by the American College of Obstetricians and Gynecologists.[36]
In the end, it came down to the vote. On January 22, 1973, the justices handed down a 7-2 decision in favor of Roe. Justices Harry Blackmun, Warren Burger, William Douglas, William Brennan, Potter Stewart, Thurgood Marshall, and Louis Powell constituted the majority with dissent from Justices Byron White and William Rehnquist. In an opinion over forty pages long, Justice Harry Blackmun presented the Court's decision. Flowers, for the State of Texas, had argued that Roe had no standing as she could not still be pregnant at the time of the hearing. The Court found that Roe did have standing as pregnancy is a repeatable event. However, the Court declared that the Does' complaint was “too speculative to present an actual case or controversy” because Mary Doe was arguing based on fear of a future pregnancy. Dr. Hallford's complaint also had no standing because there was no violation of his constitutional rights.[37]
The Court found the Texas law that prohibited abortion, except in order to save the mother's life, was a violation of “the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman ‘s qualified right to terminate her pregnancy.” However, Blackmun, continues, when the pregnancy “reaches a ‘compelling' point at various stages of the woman's approach to term” the state has “legitimate interests” and may limit abortion. For the purposes of determining when state interests override the woman's right to privacy, the Court instituted limits based on the trimester of pregnancy. Until the end of the first trimester (12 weeks), the decision to abort was granted solely to the pregnant woman and her doctor. After the first trimester, the state can choose to “regulate the abortion procedure in ways that are reasonably related to maternal health.” Once the fetus reaches viability, the State has a valid interest in protecting that life, and may “regulate, and even proscribe, abortion except where medically necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” The decision also allowed the State to allow abortion to be performed only by those with a current medical license. The final part of the decision explained that there was no need to issue an injunction against the Texas law as “Texas authorities will doubtless fully recognize the Court's ruling that the Texas criminal abortion statutes are unconstitutional. In regard to Doe v Bolton , the Court struck down Georgia's abortion laws finding that the procedural and residency requirements were unconstitutional.[38]
The decision goes on to discuss the reasoning for the ruling. The Court found that “zones of privacy” have been found in Court rulings dating back to 1891. These “zones” can be found within parts of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments and have been granted specifically in areas regarding marriage, procreation, contraceptives, family relationships, and child rearing. The majority of the justices found these examples of the right to privacy “broad enough to encompass the decision to terminate.” However, the Court maintained the right to privacy is not absolute. Additionally the Court declined to answer the question of whether life begins at conception. Blackmun explained that if experts in medicine, science, theology, and philosophy cannot agree on when life begins, it is not the place of the Court to do attempt to define it. Further, the Court found no reason to believe that the definition of “person” within the Constitution was meant to include the unborn and therefore are not entitled to the protection of the Fourteenth Amendment and that the “unborn have never been recognized in the law as persons in the whole sense.” In matters pertaining to when the state may have a “compelling interest” to protect the life of the unborn, the Court states that viability is “usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” The Court also acknowledges that changes in scientific technology could affect the viability issue in the future. A concurring opinion was authored by Justice Potter Stewart in regard to Roe in which he says that the Texas laws were in direct violation of a woman's due process rights guaranteed by the Fourteenth Amendment. For the Doe portion of the case, Justice William Douglas also wrote a concurring opinion that expressed his view that the right to an abortion fell “squarely on the right of privacy.”[39] Also in regard to Doe, the third concurring opinion was authored by Chief Justice Warren Burger. Burger expressed that he also found the Texas and Georgia laws to be a violation of the Fourteenth Amendment, but that he personally did not have an issue with the requirement of two additional doctors signing off on an abortion, but that the majority opinion in of Roe made it a moot point, as there were no restrictions placed on abortion in the first trimester.[40]
Justice William Rehnquist authored the dissenting opinion for Roe and was joined by Justice Byron White. Rehnquist argued that since Roe was not pregnant she did not have standing to make the complaint. Furthermore, the act of abortion was not private and the state should not have to prove a “compelling interest”. Instead, Rehnquist argued, the state only needed a rational interest, “and the states' statutes surely had a rational relationship to the goal of saving the unborn child.” In his dissent for Doe , Justice Byron White, joined by Rehnquist, dismissed the majority opinion as having “no basis in the Constitution” and was “illegitimate.”[41]
A few days after the decision, Norma McCorvey gave an interview in which she told her story of being Jane Roe. The story was not widely circulated and McCorvey remained mostly anonymous until she gave a television interview in 1980. McCorvey continued to be involved in the pro-choice movement, even working at an abortion clinic in North Dallas. She and Andy Meisler wrote her 1994 autobiography, I Am Roe: My Life, Roe v Wade, and Freedom of Choice in which she speaks proudly of her role in the landmark decision.[42]
The year 1995, however, brought an abrupt change of heart for McCorvey. The pro-life group Operation Rescue, moved into the office space next door to the abortion clinic where McCorvey was working. McCorvey made friends with an Operation Rescue volunteer by the name of Ronda Mackey. Through this friendship, McCorvey became close with Mackey's seven year old daughter, Emily. Mackey would later confide to McCorvey that she was pressured to abort by her future in-laws, her mother, and her fiancé, but could not do it. Emily Mackey often asked McCorvey to accompany the family to church and she finally relented. McCorvey attended the service at Hillcrest Church in Dallas and that same day she converted to evangelical Christianity. Initially, McCorvey still said she supported the right to abortion in the first trimester. Shortly after her conversion, she changed her mind and became committed to the pro-life movement. McCorvey has also abandoned her previous homosexuality, despite her twenty-plus year relationship with partner, Connie Gonzales, whom she now describes as a friend and roommate. In 1997, McCorvey left Operation Rescue and has since founded her own pro-life ministry, Roe No More. In 1998, McCorvey left the evangelical Christian movement and became a Roman Catholic. In 2003, together with Sandra Bensing Cano, the Mary Doe of Doe v Bolton petitioned the federal court to “reopen the case and conduct a wide-ranging inquiry into scientific and anecdotal evidence that she [McCorvey] says shows abortion hurts women.” The federal courts denied her request due to the amount of time that had passed since the Roe decision.[43]
Since Roe , several important abortion cases decided by the Supreme Court have allowed states to have more leeway in limiting abortion practices. Webster v Reproductive Health Services (1989) is widely considered the first blow to weaken Roe v Wade. The case dealt with restrictions that Missouri had enacted to limit abortion. In Webster, a sharply divided 5-4 Court upheld the constitutionality of the restrictions. This decision allowed states to only have to show that its restrictions did not cause an “undue burden” on patients who wanted an abortion, rather than Roe's more strict “compelling interest” rule. Additionally, the decision in Planned Parenthood of Southeastern Pennsylvania v Casey (1992), the Court upheld the constitutionality of laws requiring minors to obtain parental consent and a 24-hour waiting period before an abortion could be performed. Casey essentially gave states the right to regulate abortion at any time within the pregnancy, for reasons other than to protect the mother's life or health. Finally, Gonzalez v Carhart (2007) and Gonzalez v Parenthood Federation of America (2007) upheld a federal ban on so-called “partial birth abortions”, which bans the use of intact dilation and extraction (also known as an intact D & X procedure) as a method of abortion.[44]
The Roe v Wade decision has remained controversial. In 1995, Gallup polls began to ask Americans if they identified themselves as “pro-choice” or “pro-life”. Americans who identified themselves as “pro-choice” reached an all-time high in 1995 with a total of 56% percent of respondents. Those numbers have risen and fallen slightly until 2012, when Americans labeling themselves as “pro-choice” fell to 41%. At the same time, the number of Americans who identify themselves as pro-life has reached 50%. The same 2012 findings also show that 20% of all respondents believe that abortion should be illegal under any circumstance.[45]
One of the key factors in keeping abortion in the political forefront has been the rise in political power by the evangelical Christian movement. While the roots of the evangelical movement can be traced to the 1920s, the political strength of the group has been increasing rapidly since the late 1970s. Alarmed by a series of “liberal Supreme Court decisions on school prayer, pornography, and abortion” in the 1970s, evangelical Christians started building power within the Republican Party. Evangelical Christians believe in the return to religious fundamentalism and used their political power to “combat cultural liberalism”, and launched the so-called “Culture Wars” on feminism, abortion, pornography, and gay rights.[46]
The rise of power by evangelical Christians is of particular importance in Texas, where roughly 26% of Texans identify themselves as evangelical Christian, slightly higher than the reported 23% of the general American electorate in the 2012 election. Texas electoral votes have gone to the Republican candidate for president in every election since 1980. In the 2012 presidential election, the Republican Party adopted a anti-abortion party platform “that calls for a constitutional amendment protecting ‘human life' but does not say whether exceptions should be allowed in cases of rape and incest.” Republican Party candidate Mitt Romney said that he believed in exceptions in the case of rape or incest. Following this announcement, state leaders in Texas, including Governor Rick Perry, Attorney General Greg Abbott, and Lieutenant Governor David Dewhurst all spoke in favor of supporting abortion only when the mother's life is endangered. A 2012 University of Texas /Texas Tribune Poll shows that public opinion on abortion in Texas is divided- 50% of respondents favored abortion with “few or no restrictions” while 45% of respondents “would ban abortion with few or no exceptions.” 12% of respondents indicated that they preferred a total ban on abortion.[47]
These statistics on Texans' opinions about abortion aid in understanding the strengthening of abortion laws in Texas since the 1973 Roe decision. As of January 2011, Texas abortion law requires parental consent for minors seeking abortions, mandatory counseling, a 24-hour waiting period, and a prohibition of state funding for abortions, unless the mother's life is endangered, she was raped, or was a victim of incest. Additionally, abortions may only be performed by licensed physicians, private hospitals may refuse to perform abortions, and individual health professionals can refuse to participate. The mandatory counseling aspect of the abortion law “requires abortion providers to perform an ultrasound on pregnant women, show and describe the image to them, and play sounds of the fetal heartbeat. Though women can decline to view images or hear the heartbeat, they must listen to a description of the exam.” A group of doctors contested the law, claiming it violated their rights to free speech, but a federal district court upheld the law. Another hotly debated issue within the state's consent law is that doctor are required to inform women of a link between breast cancer and abortion, which has been widely rejected in the medical community after a the US National Cancer Institute studies could find no established link and claimed the study that Texas (and other states) use to support this link has been regarded as a flawed study.[48]
In addition to strengthening laws in regard to providing or obtaining an abortion, Texas also banned Planned Parenthood of Texas from receiving state funding because the organization is an abortion provider, even though those funds were being used to provide “about 130,000 low-income women with family planning exams, related health screenings and contraception” and were not used to fund abortions. Planned Parenthood sued the state and won a temporary injunction, but the law has been upheld by a federal appeals court.[49]
Although nearly forty years have passed since the decision in Roe v Wade , the issue remains important and divisive. Relaxation of social and cultural norms in the 1960s, the extension of rights to privacy, shifting medical opinion, and the makeup of the Court in 1973, all contributed to the legalization of abortion in the United States and it all began in a pizzeria in Dallas, Texas. However, the issue is not at rest. Decisions made by the Supreme Court since Roe have allowed states to tighten restrictions on the right to choose and it is likely that future challenges to the decision will be made.
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