Roe v. Wade: Behind the Case That Established the Legal Right to Abortion
Roe v. Wade, a landmark case decided by the U.S. Supreme Court in 1973, granted a federal constitutional right to abortion. Nearly 50 years later on June 24, 2022, in a historic reversal, the court took away that right and overturned Roe — allowing states to ban abortion.
The Road to Roe
Roe v. Wade was named for "Jane Roe" — an alias for a Texas resident named Norma McCorvey — and Henry Wade, who was the district attorney for Dallas County, Texas. In 1969, McCorvey was denied an abortion because her pregnancy didn’t pose a medical risk to her life.
At the time, Texas made abortion a crime unless a patient would die without it. That wasn’t uncommon. Across the United States, lawmakers could force pregnant people to stay pregnant. In 1971, 44 states outlawed abortion — with some exceptions to save a patient's life, or for limited reasons such as rape, incest, or fetal anomaly. People with time and money could travel to other states or countries where abortion was legal. People with low incomes, however — like McCorvey — had no such options.
McCorvey didn't know it, but a group of Texas lawyers, including Sarah Weddington and Linda Coffee, wanted to find a case that would challenge the country's widespread abortion bans. Coffee learned of McCorvey through a friend who was an adoption attorney, and in 1970, the three women sat down together at a restaurant in Dallas. They discussed McCorvey’s despair over not being able to get an abortion and the horrors of unsafe, illegal abortions nationwide — including stories of women who died from them.
Meanwhile, a group of Texas lawyers including Sarah Weddington and Linda Coffee were trying to put together a case to advocate for overturning abortion bans. Coffee learned of McCorvey through a friend who was an adoption attorney, and in 1970 the three women sat down together at a restaurant in Dallas. They discussed McCorvey’s despair over not being able to get an abortion and the horrors of unsafe, illegal abortions nationwide — including stories of women who died from them.
'Yes,' [Sarah Weddington] said, 'it’s really unfair and inhuman, and it shouldn’t have to happen to any woman, rich or poor, anywhere.' That’s why, she said, she and Linda and some other people who thought just like them were working hard to overturn the Texas law against abortions. Their weapon was a legal project, a lawsuit, to challenge the law in the courts.—Norma McCorvey, 1994 (Harper Collins, via Longreads)
Coffee and Weddington filed suit on McCorvey's behalf soon after that meeting. Dr. James Hallford, a Texas doctor facing charges for abortions he had performed, later joined forces with McCorvey in the lawsuit against Henry Wade
Privacy on Trial
The case came down to one big question: Does the U.S. Constitution recognize a pregnant person’s right to have an abortion?
Weddington, then 26 years old, argued the case before an all-male Supreme Court on Dec. 13, 1971, and reargued the case on Oct. 11, 1972. It’s very rare for Supreme Court justices to order a reargument, and even less common for the justices to share their reasons — but rearguments do tend to involve cases that deal with our most basic rights, such as Brown v. Board of Education, the 1954 case that legally ended racially “separate but equal” public schooling.
A Landmark Ruling …
On January 22, 1973, Roe — aka Norma McCorvey — won. Seven of the nine Supreme Court justices agreed that the Due Process Clause of the U.S. Constitution’s 14th Amendment protected the right of an individual to choose to end their pregnancy prior to viability.
Abortion bans that were then in place in states across the country were ruled unconstitutional. Safe abortion care became vastly more accessible throughout the United States.
… And an Imperfect One
When it decided in favor of Roe, the Supreme Court based its ruling on previous decisions that protected people’s right to make decisions about their own private lives. Eight years prior, the Supreme Court had expanded privacy rights to say that states could not ban birth control for married women.
The right to abortion did not, however, give people access to abortion. And for the next half century, anti-abortion rights politicians strategically passed laws and restrictions that blocked many people's ability to get abortion care — or made it very confusing and hard to access.
In a 1992 journal article that she addressed during her Supreme Court confirmation hearings, Justice Ruth Bader Ginsburg later suggested that Roe might have been better had the Supreme Court not based its decision on the right to privacy — and instead leaned into the 14th Amendment of the Constitution's Equal Protection Clause, which states the law must treat all people equally.
The Roe decision might have been less of a storm center had it both homed in more precisely on the women's equality dimension of the issue and, correspondingly, attempted nothing more bold at that time than the mode of decision-making the Court employed in the 1970s gender classification cases.— Ruth Bader Ginsburg, December 1992
Chipping Away at Roe
In the 1992 case Planned Parenthood v. Casey, the Supreme Court again affirmed the Roe decision — but added a new “undue burden” standard that allowed states to put laws in place to make it even harder to get an abortion. Between 1973 and 2021, states enacted more than 1,336 abortion restrictions. In 2021 alone, there were over 600 bills introduced to limit the ability to get an abortion; 108 were passed.
By 2021, the Supreme Court and the federal courts across the country had shifted dramatically, as anti-abortion rights politicians named judges with long records hostile to reproductive rights. Although Roe technically remained the law of the land, the reshaped court allowed the state of Texas to enforce a law that made Roe nearly meaningless for the vast majority of Texans. The law, S.B. 8, banned abortion after six weeks of pregnancy — before many people even know they’re pregnant. The Supreme Court allowed abortion access in Texas to become a right in name only — signaling the justices’ readiness to deal a final blow to Roe’s protection of our rights.
After 49 Years, “the Stench” of a Politicized Court
On December 1, 2021 — nearly 49 years after the landmark Roe ruling — the Supreme Court heard arguments in a case about a Mississippi ban on abortion at 15 weeks of pregnancy. Mississippi asked the Supreme Court to get rid of Roe.
Justice Sonia Sotomayor spoke openly during the arguments about how Mississippi politicians admitted to writing the 15-week ban to give justices with records hostile to reproductive rights — including three new justices appointed by Donald Trump — a chance to overturn Roe. In the previous 30 years, Sotomayor pointed out, 15 different justices of a variety of political backgrounds had reaffirmed that governments could not apply an undue burden to a woman if she wanted to end her pregnancy up to the time of viability — but now, with new justices in place, the court was on the brink of taking back its recognition of a constitutional right. Precedent had not changed, but the make-up of the court had:
Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.— Sonia Sotomayor, December 2021
Most Americans never realized that the constitutional right to abortion was at risk until May 2, 2022 — when a draft of a majority decision to overturn Roe was leaked.
On June 24, 2022, Roe was overturned, ignoring nearly 50 years of precedent. In its decision, the court gave states the power to ban abortion — and many states did so within weeks.
The Fight Goes On
Now that the Supreme Court has opened the floodgates for state politicians to ban abortion — the fight for abortion rights and access is focused on rebuilding and expanding reproductive rights. The movement is not looking back and it's not backing down. We're doing everything we can to make sure everyone can get the abortion care they need — when and where they need it.
Now, learn what you can do to help carry on the fight for everyone to have the freedom to control their bodies and their lives.
Join the Fight
There’s no time to waste. Become part of the BANS OFF OUR BODIES movement.