Authority of Law

On January 22, 1973, the Supreme Court of the United States handed down a landmark decision in the case of Roe v. Wade, arguably the most debated of Supreme Court rulings in our time.  Today, over forty years later, we are still arguing over the basic questions of the case, and "Roe v. Wade" has become a cultural shorthand for an entire spectrum of issues around state's rights, the role of the judicial branch, and a woman's right to choose.

What were the real facts of Roe v. Wade?  Who were the players?  What was the case?

Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County

Plaintiff: Jane Roe

Jane Roe is a pseudonym.  The real litigant in Roe v. Wade was Norma L. McCorvey, a single woman in Texas who had become pregnant for the third time. She had her first daughter, Melissa, at 17, and soon signed over legal custody to her mother.  Her second child, born a few years later, was raised by its father: McCorvey has no contact with them.  McCorvey became pregnant for a third time in September 1969, just as she turned 22.  This time, she decided to pursue an abortion under the pseudonym Jane Roe, which she was given because "Doe" was already being used in a similar case.

Defendant: Henry Wade

Henry Wade was district attorney of Dallas County, Texas from 1951 to 1987.  When McCorvey brought suit against the Texas law forbidding abortion except to save the life of the mother, it made the district attorney's office the defendant in the case, representing the state of Texas.  Although Wade's name is on the case, one of his assistants actually argued it at trial in district court.

The Facts

When Norma McCorvey became pregnant with her third child, she wanted an abortion.  At the time, there were only six states in the United States in which abortion was legal, and it was impractical for her to travel to any of them.  She was put in touch with a lawyer named Henry McCluskey, who handled adoptions for single women who found themselves pregnant.

McCorvey didn't want an adoption arrangement.  She wanted an abortion.  And Henry McCluskey had a friend named Linda Coffee who was looking for a case which would let her attack Texas's abortion laws.  The perfect plaintiff had some fairly specific requirements: she had to be pregnant, looking for an abortion, lacking the funds to travel to California or Mexico, and not so far along that the case was moot.  Just as importantly, she had to be willing to face the publicity this case would undoubtedly bring.  McCorvey was willing to be that plaintiff.

Sarah WeddingtonCredit: Sarah Weddington, 1978

Sarah Weddington

Sarah Coffee and her partner, Sarah Weddington, filed suit on March 3, 1970, by which time Norma McCorvey was already six months pregnant.  McCorvey has stated that she felt deceived by Coffee and Weddington, who must have known that the issue would be moot by the time a decision was handed down.  Coffee and Weddington, rightly or wrongly, were less concerned with their client's individual needs than the overall plight of women.  McCorvey was a figurehead, not a real plaintiff.  In fact, by the time the district court handed down its decision, she had already given birth to a child, who was adopted by a family which has remained anonymous and out of the press.

The District Court Ruling

The district court hearing began in May of 1970 and ended a month later, on June 17.  The court, consisting of three judges, ruled in McCorvey's favor, but granted only declarative and not injunctive relief.  (Declaratory relief means that the court rules that something is, as in "this law is void because it is vague and overbroad," whereas injunctive relief refers to a court order to act, as in "Change this law" or "Cease to enforce this law.")  

Immediately after the ruling, District Attorney Wade appealed the court decision, and the Supreme Court agreed to hear it.

The Supreme Court

The Supreme Court of the United States, under Chief Justice Warren Burger, delayed hearing the case until other, similar cases had been argued.  It was over a year between when the court agreed to hear the case and December 13, 1971, the date which was set for arguments.  In the intervening time, however, two justices retired: John Marshall Harlan II on September 23, 1971 and Hugo Black on September 25, 1971. 

With only seven justices, the court did not want to pursue any complex or challenging cases, so Justices Potter Stewart and Harry Blackmun were asked to determine which cases could proceed and which should wait for the full court.  Blackmun later wrote to William Rehnquist that, "Potter pressed for Roe v. Wade and Doe v. Bolton to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris. How wrong we were."

The 7-member court heard the arguments on schedule, with Sarah Weddington arguing for Roe, and Jay Floyd arguing for the state on behalf on Henry Wade and Dallas County.  All seven members felt the district court had ruled correctly, and that the law should be struck down, though their reasons varied.  Justice Blackmun was given the job of writing the court's opinion, but struggled with it, since the court had such disparate reasoning, and he himself was much more moderate than many of the court's members.

Justice Harry BlackmumCredit: Justice Harry Blackmun

Justice Harry Blackmun

By January 17th, 1972, the court was restored to its full nine-man complement, with the additions of William Rehnquist and Lewis Powell.  Blackmun, who was still writing his opinion, immediately proposed that Roe v. Wade be reargued before the full court, but the court was slow to act, and Blackmun had submitted his first draft opinion before Chief Justice Burger decided on May 31, 1972 that the case should be reargued.

Despite opposition from several members of the court, the case was scheduled to be re-argued on October 11, 1972, with Sarah Weddington returning to argue for Roe and Robert Flowers taking over for Jay Floyd on behalf of the state.

During the summer, while waiting for re-argument, Blackmun continued to work on his opinion, trying to unify the many voices on the case.  When the case was re-argued, the ruling was 7-2 in favor of Roe, with Rehnquist and Justice Byron White dissenting.  The final majority opinion, written by Blackmun, was handed down on January 22, 1973.

The Grounds

The law at the basis of the majority opinion in Roe v. Wade is the fourteenth amendment.  That amendment says that, "[no] State [shall] deprive any person of life, liberty, or property, without due process of law," which had been expanded by 1973 to include a concept of a "right to privacy."  The central conflict in this case, as argued by the Supreme Court, came from the question of whether the state had a vested interest in forbidding abortion that was strong enough to outweigh the basic right to privacy that legal precedent attached to the fourteenth amendment.

Their decision was that in the first trimester, all matters of abortion should be a private decision between a woman and her physician.  Beginning in the second trimester, the state's vested interest in the health of the mother allowed it to make laws and regulations limiting abortion which were designed to protect the mother.  After the age of viability, the state had a vested interest in the fetus, which allowed the state to make regulations limiting abortion to protect the fetus.

The Aftermath

Planned Parenthood SupportersMarch for Life SignThe debate over Roe v. Wade continues today.  From the strong emotions on both sides, to the procedural irregularities which dogged the case, to the later defection of Norma McCorvey, who now campaigns against abortion, the case is a vibrant and fascinating one.  It has been over 40 years since Roe v. Wade was decided, and America is still arguing it today.