Roe v. Wade and the Abortion Rights Jurisprudence

Simona Grossi

Loyola Law School

Roe v. Wade, 410 U.S. 113 (1973), is certainly among the most debated U.S. Supreme Court’s opinions that have shaped Constitutional law in the U.S. There the Court resolved the question of whether, and under which conditions, a woman has the right to terminate a pregnancy. The Court recognized a right to privacy in matters concerning procreation and family by endorsing a test built around the idea of “viability.” While the decision was rooted in the Due Process Clause of the constitution, neither the right nor the viability test could reasonably be inferred from the text of the United States Constitution, nor traced to any specific precedent. Thus, among other problems with the opinion and the method adopted to recognize such a right, the public opinion had not been “prepared” to Roe v. Wade the same way it somehow had been to opinions like Brown v. Board of Education or Obergefell v. Hodges. Hence, some states resisted Roe v. Wade by passing laws which tried to override it and, when these laws came to the Court under a challenge of unconstitutionality, Roe v. Wade was reassessed, clarified, and limited, but ultimately upheld. Almost 50 years later, Roe v. Wade is being tested again in Dobbs v. Jackson Women’s Health Organization, where the Court will have to determine whether a Mississippi law banning abortion after 15 weeks of pregnancy with very limited exceptions is unconstitutional. The many challenges to Roe v. Wade over the years confirm that the opinion is one of the most controversial judgments in the U.S. Supreme Court’s jurisprudence. 

In Roe v. Wade, a Texas statute made it illegal to have an abortion except where necessary to save the mother’s life. By absolutely prohibiting most abortions, the statute impinged on a woman’s fundamental liberty to choose an abortion, thus triggering strict scrutiny under the Due Process Clause of the Fourteenth Amendment. To successfully defend the statute, Texas had to show that its interference with the right of personal privacy “was necessary to support a compelling state interest.” (Roe v. Wade, at 156). The Court agreed that the state had two compelling interests in regulating the abortion: protecting maternal health and protecting potential life. However, the Court held that neither of these interests was compelling at the outset of pregnancy. Rather, the interest in protecting the mother’s health became compelling only at the end of the first trimester, i.e., after about three months of pregnancy; before then, the Court explained, it was as safe for a woman to have an abortion as it was to proceed with childbirth. The state’s interest in potential life, on the other hand, did not become compelling until roughly the end of the second trimester, i.e., after about six months of pregnancy; only then was the foetus viable, i.e., capable of surviving outside the mother’s womb.

Under this trimester framework, the state’s interest in regulating abortion became stronger as the period of pregnancy lengthened. During the first trimester, the state had no compelling reason to regulate abortion, though it might require that abortions be performed by a licensed physician under generally applicable professional standards. In the second trimester, the state acquired a compelling interest in protecting maternal health. This interest allowed the state to impose restrictions that were necessary to ensure that the abortion procedure was safe, but that interest was not sufficient to justify a total prohibition on abortion. During the last trimester of pregnancy, the state acquired a compelling interest in protecting the foetus. At this point, the state might “regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” (Roe v. Wade, at 165). Once the foetus had become viable, the state might thus restrict or completely outlaw non-therapeutic abortions—i.e., those that were not medically necessary to protect the mother’s health or life; however, the state might not prevent a woman from choosing to have a therapeutic abortion (Roe v. Wade, at 173).

In the years following Roe v. Wade, state and local governments tested its limits by enacting laws that restricted the ability of women to obtain abortions. These measures were challenged, forcing lower courts and the Supreme Court to apply and clarify the ruling in Roe v. Wade. The Court was sharply divided in many of these cases. By 1989, the split within the Court had reached the point where four Justices—Rehnquist, White, Scalia, and Kennedy—had gone on record urging that Roe v. Wade be either overruled or limited to statutes that outlawed abortions; laws that simply regulated the abortion procedure would then be reviewed under the rational basis standard (see, e.g., the opinion of Rehnquist, J., White, J., and Kennedy, J. in Webster v. Reproductive Health Servs., 492 U.S. 490 (1989) and the opinion of Scalia, J. in the same case, at 532 ). It seemed that only one more vote was needed to overrule Roe v. Wade. When Justices Brennan and Marshall, both supporters of Roe v. Wade, resigned from the Court in the early 1990s, President George H.W. Bush replaced them with David Souter and Clarence Thomas. And in light of Bush’s campaign promises to appoint anti-abortion judges to the federal bench, it was widely expected that these new Justices would provide the necessary votes to overturn Roe v. Wade. 

The opportunity to do so came in 1992 with Planned Parenthood v. Casey (505 U.S. 833). There, the Court preserved what it viewed as the “essential holding” of Roe v. Wade, that is, the woman’s right “to choose an abortion before viability and to obtain it without undue interference from the State,” and the right to elect to have an abortion even after viability where it is necessary to protect her health or her life (Casey, at 846). However, it rejected Roe v. Wade’s trimester framework and replaced it with a new “undue burden” test for analysing the validity of all abortion restrictions. Under this test, a law will be found to impose an undue burden “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the foetus attains viability.” (Casey, at 878 (emphasis supplied)). As far as the purpose element is concerned, a law imposes an undue burden if it is “calculated to…hinder” a woman’s freedom of choice (Casey, at 877). This element is not violated if the state’s purpose is “to persuade the woman to choose childbirth over abortion” (Casey, at 878). The state, therefore, is allowed to “enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest” (Casey, at 886). Since a state can almost always claim that its purpose was “to persuade” rather than “to hinder,” it is hard to imagine any law being held to constitute an undue burden because of its purpose. With respect to the effect element of the undue burden test, it is more difficult to establish that a law unduly burdens the right to choose an abortion than it was under Roe v. Wade and its progeny. According to the joint opinion, the government can adopt measures that interfere with a woman’s ability to obtain an abortion, so long as they do not “place a substantial obstacle” in a woman’s path to obtaining an abortion—i.e., so long as they do not actually prevent or “prohibit [her] from making the ultimate decision to terminate her pregnancy before viability.” (Casey, at 879). Thus, “[t]he fact that a law…has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” (Casey, at 874 (emphasis supplied)). 

Casey was the product of a highly splintered Court. Four Justices—Rehnquist, White, Scalia, and Thomas—voted to overrule Roe v. Wade in its entirety and to sustain all the challenged regulations. Justice Blackmun, on the other hand, adhered fully to Roe v. Wade and believed that all of the Pennsylvania restrictions were invalid. Justice Stevens also endorsed Roe v. Wade and voted to invalidate most of the state’s restrictions. 

With the Court split four to two, the outcome lay in the hands of Justices O’Connor, Kennedy, and Souter. They issued a joint opinion that staked out a middle position between completely overruling Roe v. Wade and preserving the decision intact. While preserving the essential holding of Roe v. Wade, they “reject[ed] the trimester framework, which [they did] not consider to be part of the essential holding of Roe v. Wade” (Casey, at 873). That framework was flawed in their eyes because “it undervalues the State’s interest in the potential life within the woman” (Casey, at 875).  Whereas Roe v. Wade had held that this interest becomes compelling only at viability, they believed that “there is a substantial state interest in potential life throughout pregnancy” (Casey, at 876). 

This upgrading of the interest in potential life gave the state a much stronger ground for regulating abortion during the first and second trimesters. It also eliminated any reason for distinguishing between the first and second trimesters, since the state now had a compelling reason for restricting abortion from the very beginning of pregnancy. On the other hand, the joint authors refused to abandon the “viability line” that divides the second and third trimesters. As they explained, part of “Roe’s central holding [was] that viability marks the earliest point at which the State’s interest in foetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” (Casey, at 860). Thus, prior to viability, a woman still has a fundamental right to choose an abortion—even if it is not necessary to protect her life or her health. After viability, the state may outlaw abortion except where it is necessary to preserve the health or life of the mother.

Despite the important recognition of the right to seek an abortion, neither Roe v. Wade nor its companion case, Planned Parenthood v. Casey, were able to satisfactorily resolve questions concerning the scope of the right and strike an acceptable balance among the various interests involved. The opinions created a fracture within the system, tension between the supporters of these rights and those opposed to them, which tensions have yet to be resolved decades later. Indeed, on May 17, 2021, the Supreme Court granted certiorari in Dobbs v. Jackson Women’s Health Organization, case No. 19-1392, to decide whether a Mississippi’s law banning nearly all abortions after 15 weeks’ gestational age is unconstitutional. The Court heard oral arguments on December 1, 2021, and the opinion was officially issued on June 24, 2022, seven weeks after a leaked draft majority opinion was first published by POLITICO. In an opinion authored by Justice Alito, the Court holds that “Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.’ The right to abortion does not fall within this category” (2022 WL 2276808, at *7). This ruling profoundly shakes the American constitutional system, and it makes us worry about several other fundamental rights that the Court traced to the Due Process Clause of the Fourteenth Amendment under reasonings and considerations similar to the ones the Court made in Roe v. Wade.

Simona Grossi is Theodore A. Bruinsma Professor of Law at Loyola Law School Los Angeles

Suggested Citation: Simona Grossi, ‘Roe v. Wade and the Abortion Rights Jurisprudence’ (IACL-AIDC Blog), 8 September 2022, https://blog-iacl-aidc.org/globallandmarkjudgments/2022/9/8/roe-v-wade-and-the-abortion-rights-jurisprudence.