The Road to Roe
GEOFFREY R. STONE
The author is the Edward H. Levi Distinguished Service Professor at the University of Chicago.
This article is adapted from his forthcoming book, Sex and the Constitution (W.W. Norton & Company).
Many Americans today think of Roe v. Wade as a radical, leftwing decision. That was not the view at the time. The story of
how we got to Roe, like the story of how we got to Brown v. Board
of Education or how we got to Obergefell v. Hodges, is important
to remember, for it gives both content and context to the often
furious debates of the present.
Although it is impossible to know how common abortion was
in England in the 18th century, we do know that it was often relied on by single and widowed women to avoid the stigma and
consequences of illegitimate births. At this time, women used
a variety of means to terminate unwanted pregnancies, including bleedings, strenuous exercise, tight lacing, pessaries, and
herbal abortifacients.
Public attitudes toward abortion in this era turned on the
circumstances. The time of abortion was critical. Abortions before quickening (defined as the point at which the woman could
feel movement—typically around four and a half months) generally were not regarded as immoral, and the common law did
not regard such abortions as unlawful. The American colonies
followed the English approach on this issue, but prosecutions
even for post-quickening abortions were few and far between.
Over the course of the 19th century, there was a significant
shift in attitudes toward birth control. This was evident in
the fact that the birth rate fell dramatically from 1800 to 1900.
In the colonial era, the average family had nine children. By
1900, that number was only three. In the agrarian world of
the 18th century, children were an important economic asset;
by the end of the 19th century, with greater urbanization and
industrialization, they were increasingly seen as a financial
burden that could cause a family’s economic ruin. By the late
19th century, it was commonly understood that a large family was no longer a cause of congratulation, but an indication
of carelessness. For most families, birth control of one sort or
another had become essential.
These changes brought about a dramatic shift in the public
acknowledgment of abortion. Before 1840, abortion was perceived primarily as the business of prostitutes and as a recourse
for the desperate. In the years after 1840, however, the social
character of the practice began to change. Abortion rates soared,
and a high proportion of the women having abortions were, for
the first time, married women of middle – or upper-class status.
By the 1850s, abortion was increasingly acknowledged as a legitimate practice to maintain and improve a family’s economic
welfare. By this time, roughly 20 percent of all pregnancies were
purposefully terminated.
Contributing to the increase in abortion was the wide availability of abortifacients in this era from mail-order firms and
pharmacists. Daily newspapers regularly ran ads for products
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1
that promised to “cure” pregnancy—a euphemism for terminating a pregnancy. And those who provided abortion services often
did so quite openly. The flamboyant Ann Lohman Restell of New
York City, popularly known as “Madame Restell,” maintained
a highly profitable abortion business serving a genteel, middleand upper-middle-class clientele. She touted her “celebrated
powers for married ladies” and advertised extensively in the
penny press of the day.
This general acceptance of abortion began to change at midcentury. Several factors contributed to this shift. First, the number of abortions at every level of society grew dramatically in
the first half of the 19th century, to the point where abortion
opponents came to refer to it as “the Evil of the Age.”
Second, religious perspectives on abortion shifted during the
Second Great Awakening. The traditional Protestant conception of the fetus assumed that it was not alive until quickening.
Abandoning the conventional view that “human life was dormant
like an unsprouted seed, until the mother could first sense foetal stirrings,” evangelicals during the Second Great Awakening
preached that a separate, distinct, and precious life came into
being at the instant of conception.
Third, and perhaps even more significant, medical professionals increasingly came to the view, based partly on religion
and partly on science, that life begins at conception. In 1839, for
example, Hugh Lenox Hodge, a professor at the University of
Pennsylvania Medical School, published a pamphlet in which
he confidently asserted that embryos could think and could perceive right and wrong. In 1857, the Boston gynecologist Horatio
Storer initiated a “Physicians’ Crusade Against Abortion” and
persuaded the newly founded American Medical Association
(AMA) to create a new Committee on Criminal Abortion.
The committee, chaired by Storer, presented its report at
the AMA’s 1859 meeting. The report decried the growing frequency of the “heinous” act of abortion among all classes of
society and maintained that the primary cause of this “general
demoralization” of women was the “wide-spread popular ignorance of the true character” of abortion. The report called
upon the AMA to condemn “the act of producing abortion, at
every stage of gestation, except as necessary for preserving the
life” of the woman. After some deliberation, the AMA endorsed
the committee’s recommendations.
While purported concerns about women’s health also became
an argument against abortion, Storer emphatically rejected the
proposition that the woman should be able to decide this question for herself, noting that if she were given this responsibility
“her decision . . . would be . . . warped by personal considerations,”
particularly because, during pregnancy, a “woman’s mind is
prone to depression, and, indeed, to temporary actual derangement, under the stimulus of uterine excitement.” Moreover, he
added, women were born to bear children. Thus, for a woman
“intentionally to prevent the occurrence of pregnancy,” or “intentionally to bring it, when begun, to a premature close, are alike
disastrous to a woman’s mental, moral, and physical well-being.”
Over the next several decades, the AMA launched an aggressive campaign to rid the nation of abortion. The success of this
campaign was facilitated by the late 19th-century “social purity” movement, which sought to impose conservative religious
and moral values on the whole society and to give the state
greater power over areas of life once considered private. The
desire of women to control their own bodies and lives was thus
castigated by doctors and religious leaders alike as the product of a deformed and insatiable appetite for sex and a selfish
desire for economic well-being. As the leading voice of the
antiabortion movement, Horatio Storer insisted that women
must remain within their “God-given sphere.” The purpose
of “American women,” he declared, was to produce children,
not to “butcher” them.
By the end of the 19th century, every state had enacted legislation prohibiting abortion at any stage of pregnancy unless
a doctor certified that it was necessary to save the life of the
mother. For the first time, women who sought abortions were
now themselves subject to prosecution, and government for
the first time aggressively sought to suppress all information
about abortion.
Despite the threat of criminal sanctions, the medical profession’s warnings about the dangers of abortion, and the preaching
of religious moralists, women in the late 19th century continued
to seek abortions in record numbers. By the turn of the 20th
century, as many as two million abortions were being performed
in the United States annually, and almost a third of all pregnancies ended in abortion. Now, though, these abortions had to be
performed illegally, in less safe circumstances, and by less reliable practitioners than in the past.
The Situation in 1960
By the early 1960s, abortion at any stage of pregnancy had been
illegal in the United States for almost a century. Although a
few states allowed abortion when necessary to prevent serious harm to the pregnant woman’s health, the vast majority
of states permitted abortion only when necessary to save the
life of the woman. At that time, some 8,000 legal abortions and
about 1,000,000 illegal abortions were performed every year.
Thus, the vast majority of women who wanted to terminate an
unwanted pregnancy at this time had to turn in desperation to
dangerous “back-alley” abortions.
Critics of abortion argued that the issue was simple: Women
ought to just accept the consequences of sex or abstain. That was
the choice. As one abortion opponent put the point: “If you don’t
want a pregnancy, don’t do anything to get pregnant.” Of course,
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2
not everyone accepted that view. Beginning in the 1950s, some
members of the medical profession began to express frustration
with this state of affairs. Increasingly, doctors resented being
shackled by restrictive abortions laws, which prevented them
from serving the needs of their patients and effectively forced
women to seek illegal, unregulated, and often unsafe abortions.
A number of physicians called for change in the laws governing abortion, even though their advocacy of this position risked
their standing in the profession. At this time, those concerned
about the issue of abortion focused primarily on the rights of
doctors rather than on the rights of women, which were not yet
seen as “rights” at all. The problem was not so much that women
could not have abortions but that doctors couldn’t treat their
patients in a “proper” manner.
In 1962, the American Law Institute (ALI) endorsed a reform
proposal as part of its Model Penal Code. The proposal called
on states to legalize abortions whenever two or more doctors
agreed that there was a “substantial risk that continuance of the
pregnancy would gravely impair the physical or mental health of
the mother,” that “the child would be born with a grave physical
or mental defect,” or that “the pregnancy resulted from rape, incest, or other felonious intercourse.” The ALI’s proposal carried
considerable weight. Within a few years, 12 states had amended
their laws to adopt some or all of the ALI’s recommendations.
But this reform addressed the needs of only a small percentage of the women each year who sought to terminate an unwanted pregnancy. Some of the one million or so women who
resorted each year to unlawful abortions were fortunate enough
and wealthy enough to find doctors who were willing to perform
such abortions. The going rate for an illegal abortion performed
by a qualified physician was typically in the range of $1,000 to
$1,500 (about $8,000 to $12,000 in today’s dollars). Most women
who could afford to pay a doctor to perform an illegal abortion were married, wealthy, and well connected. Even for them,
though, it was frequently difficult to find such physicians. Often
they would have to ask friends whether they “knew anyone who
knew anyone,” an inquiry that could be quite mortifying. To
avoid that humiliation, some women who could afford to do so
simply left the country to get an abortion elsewhere.
The vast majority of women who found themselves facing
the dilemma of an unwanted pregnancy could not afford either
to leave the country or to pay a physician in the United States.
Instead, they turned either to self-induced abortion or to the
dark and often forbidding underworld of untrained and unreliable “back-alley” abortionists. Women who resorted to selfinduced abortion typically relied on such methods as throwing
themselves down a flight of stairs or ingesting, douching with,
or inserting into themselves a chilling variety of chemicals and
toxins ranging from bleach to potassium permanganate to turpentine to gunpowder to whiskey. Knitting needles, crochet
hooks, scissors, and coat hangers were among the tools commonly used by women who attempted to self-abort. Some 30
percent of all illegal abortions were self-induced.
Women who sought abortions from back-alley abortionists
encountered similar horrors. To find someone to perform an illegal abortion, women often had to rely on the advice of friends
or acquaintances or on tips from elevator operators, taxi cab
drivers, salesmen, and the like. Moreover, because of the clandestine nature of illegal abortions, the very process of finding
an abortionist was often dangerous and terrifying. Women who
sought back-alley abortions were sometimes blindfolded, driven
to remote areas, and passed off to people they did not know and
could not even see during the entire process. Such abortions
were performed not only in secret offices and hotel rooms but
also in bathrooms, in the backseats of cars, and also, literally,
in back alleys. The vast majority of these abortions were performed either by persons with only limited medical training,
such as physiotherapists, midwives, and chiropractors, or by
rank amateurs, including elevator operators, prostitutes, barbers,
and unskilled laborers.
In the 1960s, an average of more than 200 women every year
died as a result of botched illegal abortions. The mortality rate
for black and Hispanic women was 12 times the mortality rate
for white women. In addition to those who died in the course of
illegal abortions, many thousands more suffered serious illness
or injury. Because of the humiliation associated with having an
illegal abortion, many women who suffered complications were
reluctant to visit a doctor for treatment.
The stories of women who suffered through this nightmare
are legion.
One woman recalled how a fellow college student who had
had an illegal abortion was too frightened to tell anyone what she
had done. She locked herself in the bathroom in her dorm and
quietly bled to death. In another incident, 28-year-old Geraldine
Santoro bled to death on the floor of a Connecticut hotel room
after she and her former lover attempted an abortion on their
own. The former lover, who had no medical experience, used a
textbook and some borrowed tools. When things went terribly
wrong, he fled the scene, and Santoro died alone.
Support Builds for Abortion
Such incidents led some religious organizations that had previously been silent on abortion to address the issue more directly.
Protestant churches varied in their opinions. Most supported
some variation of the ALI’s position, but some went even further. The United Methodist Church, for example, acknowledged
“the sanctity of unborn human life” but nonetheless proclaimed
that, because “we are equally bound to respect the sacredness
of the life and well-being of the mother, for whom devastating
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3
damage may result from an unacceptable pregnancy,” they “support the removal of abortion from the criminal code, placing
it instead under laws relating to other procedures of standard
medical practice.”
Similarly, in 1968, the American Baptist Convention came
to the conclusion that abortion should be a matter of “responsible personal decision” that should be available as an “elective
medical procedure” at the “request of the individual” at any time
before the end of the first trimester of pregnancy.
Three years later, the more conservative evangelical Southern
Baptist Convention endorsed the ALI’s approach and called on
Southern Baptists to support laws that would permit abortion
in cases of rape, incest, or fetal deformity or where the emotional, mental, and physical health of the mother was clearly
at risk. Although some fundamentalist Christians maintained
that abortion was condemned in the Bible, the vast majority
of evangelicals took a more moderate approach. Indeed, the
National Association of Evangelicals expressly endorsed “the
necessity for therapeutic abortion to safeguard the health or
the life of the mother.”
By the early 1960s,
abortion at any stage of
pregnancy had been illegal
in the United States
for almost a century.
The Catholic Church, on the other hand, insisted that abortion
was always and unequivocally forbidden, even when necessary
to save the life of the woman. This led the politics of abortion to
play out in interesting ways. Because Catholics had traditionally
identified with the Democratic Party and because Catholics were
more likely than others to oppose abortion, Republicans at this
time were more “pro-abortion” than Democrats. According to a
Gallup poll in early 1972, for example, 68 percent of Republicans,
as compared with 59 percent of Democrats, thought that “the
decision to have an abortion should be made solely by a woman
and her physician.”
But because of other, more liberal elements in the Democratic
Party, the Democratic Party was officially more pro-abortion
than the Republican Party. Seeing an opportunity to draw disaffected Catholic voters away from the Democrats, Republican
leaders began to move toward a more antiabortion stance. They
knew that, if they could succeed in this effort, they could bring
about a profound shift in the future of American politics.
This strategy was clearly evident in President Richard Nixon’s
policies. In 1970, Nixon authorized military hospitals to perform therapeutic abortions without regard to the law of the
state in which the hospital was located. A year later, however,
with a clearer sense of the potential political ramifications of
the abortion issue, Nixon revoked that policy. Influenced by
Republican Party strategist Kevin Phillips’s influential book
The Emerging Republican Majority (1969), Nixon then sharply
attacked the Democrats for their support of abortion and embraced an increasingly strident antiabortion stance in a concerted effort to draw Catholics into the Republican camp. Nixon
applauded those who defended “the right to life of the unborn.”
This campaign, he declared, “is truly a noble endeavor,” and in
“this calling,” you and your allies “have my admiration, sympathy and support.”
Nixon knew what he was doing. Large numbers of Catholics
who were prepared to cast single-issue votes on the abortion
issue voted Republican for the first time in their lives in 1972,
helping Nixon win an overwhelming victory in that year’s presidential election, winning 49 of the 50 states.
At roughly the same time, though, the rising voice of the women’s movement began to shape the public discourse on abortion.
In February 1969, Betty Friedan, the founding president of the
National Organization for Women (NOW), which had been established in 1966, delivered a rousing address in Chicago at what
was billed as the First National Conference on Abortion Laws.
Friedan focused publicly on a new argument in support of legal
abortion: “[T]here is no freedom, no equality, . . . possible for
women until we assert and demand the control over our own
bodies, over our own reproductive process.” She proclaimed that
the “right of woman to control her reproductive process must be
established as a basic and valuable human civil right not to be
denied or abridged by the state.” This was essential, she maintained, to the full human “personhood and dignity of woman.”
By the end of the conference in Chicago, participants founded the National Association for the Repeal of Abortion Laws
(NARAL) on the premise that what was needed was not ALItype reform, which had focused narrowly on protecting women’s
health, but a complete overhaul of America’s abortion laws. In
November of 1969, Planned Parenthood and the American Public
Health Association both called for repeal rather than reform of
America’s abortion laws and declared abortion to be a personal
right of the woman.
In a profound shift, the campaign for abortion reform was
now about the rights of women rather than the rights of doctors.
These three organizations maintained that denial of a woman’s right to control her own reproductive destiny violated her
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4
fundamental right to decide for herself whether—or not—“to
bear or beget a child.”
As these organizations moved to the forefront of national debate, public opinion rapidly changed in parallel. By October 1971,
50 percent of Americans believed that, at least in the first trimester of pregnancy, abortion should be a decision for a woman
and her doctor. Less than a year later, that figure had climbed
to 64 percent. In 1970, four states—Alaska, Hawaii, New York,
and Washington—legalized abortion at least in the first trimester, thus restoring the state of the law to what it had been 150
years earlier.
Between 1967 and 1970, the abortion rights movement won
a series of legislative victories. Thirteen states liberalized their
abortion laws by enacting a version of the ALI proposal, and four
others legalized abortion in at least the first trimester. Then,
suddenly, the legislative progress ground to a halt. Despite increasing—and clear majority—public support for leaving the
abortion decision to the woman and her doctor, no state legislature enacted reform legislation after 1970.
Several factors contributed to this legislative paralysis.
First, the initial round of legislative victories both surprised
and energized abortion opponents, especially the Catholic
leadership, and after getting their act together, they organized
with extraordinary effectiveness. Second, those opposed to
abortion threatened quite credibly to act as single-issue voters
and they communicated that intention to elected officials with
perfect clarity. Third, Catholic leaders worked tirelessly not
only to mobilize Catholics but also to bring non-Catholic antiabortion voters into the single-issue-voter fold. Legislators
knew all too well that, although a substantial majority of citizens supported legalizing abortion, committed single-issue
voters could effectively vote them out of office when election
day rolled around.
The Battle Moves to Court
Faced with such obstacles in the legislative arena, those seeking to continue the momentum of the prior decade began to
think more seriously about challenging the constitutionality of
antiabortion statutes in the courts. Initially, this seemed a long
shot because, in the words of New York Times columnist Linda
Greenhouse, the idea of a constitutional right of abortion seemed
somewhat “illusory.” But with legislative change effectively
blocked, the courts were the only alternative.
In 1967, Roy Lucas, a New York University law student, wrote
a student essay arguing that a woman’s right to decide for herself whether or not to have a child should be understood as a
fundamental constitutional right protected by the concept of
personal liberty. Although Lucas’s professors thought the argument implausible, others did not.
Harriet Pilpel, who had served as general counsel for both
Planned Parenthood and the American Civil Liberties Union,
was sufficiently intrigued by the idea of a direct, frontal challenge to antiabortion laws on constitutional privacy grounds
that she and Lucas began to craft a test case to pose the question. In 1970, relying in part on Lucas’s theory, a group of lawyers filed four separate cases in federal court challenging the
constitutionality of New York’s 19th-century antiabortion law.
Before the federal district court could decide the case, however,
the New York legislature repealed its statute and thus rendered
the cases moot.
At the same time in Connecticut, after the legislature repeatedly refused even to consider amending its mid-19th-century
antiabortion statute, a group of women’s liberation activists
formed a new group, Women versus Connecticut, to challenge
the constitutionality of the law. “We want control over our own
bodies,” they declared. “We are tired of being pressured to have
children or not to have children. It’s our decision.” The current
state of the law was intolerable, they proclaimed, because “as
long as the law makes obtaining an abortion a criminal act, we
will continue to be forced to behave like—and thus to feel like—
criminals.” Because getting a new law through Connecticut’s
heavily Catholic legislature seemed unlikely, they concluded
that asking the courts to find Connecticut’s abortion law unconstitutional seemed “more apt to succeed.”
On March 2, 1971, Women versus Connecticut filed its complaint in federal district court on behalf of 858 women plaintiffs. Six weeks later, a three-judge federal court, in a 2–1 decision, held the Connecticut statute unconstitutional. Judge J.
Edward Lumbard, an Eisenhower appointee, held that, in this
law, “Connecticut trespasses unjustifiably on the personal privacy and liberty of its female citizens in violation of the Ninth
Amendment and the Due Process Clause.” “The decision to carry
and bear a child,” he explained, “has extraordinary ramifications for a woman,” including possible issues of health, “psychological and social adjustments,” and potentially serious effects
on “her family’s financial or emotional resources.” Moreover,
if the woman is unmarried, she “will suffer the stigma of having an illegitimate child.” Abele v. Markle, 342 F. Supp. 800 (D.
Conn. 1972).
Judge Lumbard reasoned that, in such circumstances, “determining whether or not to bear a child is of fundamental importance to a woman.” Whatever the role of women in 1860 when the
Connecticut statute was enacted, “the changed role of women
in society and the changed attitudes toward them reflect the
societal judgment that women can competently order their own
lives and that they are the appropriate decisionmakers about
matters affecting their fundamental concerns.” Balancing the
competing interests, including the state’s interest in protecting
“the rights of the fetus,” Judge Lumbard concluded that “the
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5
state’s interests are insufficient to take from the woman the
decision after conception whether she will bear a child and that
she, as the appropriate decisionmaker, must be free to choose.”
By 1970, cases challenging state antiabortion laws were now
popping up everywhere. In Georgia, a group of 24 plaintiffs,
including doctors, nurses, social workers, and members of the
clergy, challenged the constitutionality of Georgia’s recently enacted abortion statute, which had embraced the reforms recommended by the ALI. A three-judge federal district court unanimously held the Georgia statute unconstitutional. Although
conceding that, as with any medical procedure, the state could
reasonably regulate certain aspects of abortion, the court ruled
that the constitutional “concept of personal liberty embodies a
right to privacy” that is “broad enough to include the decision to
abort a pregnancy” and that by limiting “the number of reasons
for which an abortion may be sought,” the Georgia law “unduly
restricts a decision sheltered by the Constitutional right to privacy.” Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970).
At roughly the same time in Texas, Linda Coffee and Sarah
Weddington, recent graduates of the University of Texas Law
School, teamed up to bring a test case to challenge the Texas
antiabortion statute. The plaintiff, identified as “Jane Roe,” alleged that the Texas law unconstitutionally infringed the fundamental right of women to decide for themselves whether or
not to bear children.
On June 17, 1970, a three-judge federal district court ruled
unanimously that the “fundamental right of single women and
married persons to choose whether to have children is protected
by the Ninth Amendment,” which provides that “the enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people” and which
had been invoked by the Supreme Court five years earlier in
Griswold v. Connecticut in holding unconstitutional a state law
that prohibited married couples from using contraceptives. The
three-judge court held the Texas antiabortion statute unconstitutional because it infringed Jane Roe’s Ninth Amendment right
to decide for herself whether to have an abortion. Roe v. Wade,
314 F. Supp. 1217 (N.D. Tex. 1970).
On May 3, 1971, the U.S. Supreme Court announced that it
would consider Roe v. Wade.
Roe v. Wade
Despite the efforts of the Catholic Church and the Republican
Party, by 1973 a substantial majority of Americans supported the
right of a woman to terminate an unwanted pregnancy. Gallup
polls at the time showed that “two out of three Americans think
abortion should be a matter for decision solely between a woman
and her physician.” Moreover, lower courts were already moving in a direction that clearly anticipated Roe.
Strikingly, three of the four justices appointed to the Supreme
Court by Richard Nixon, who had dedicated himself to appointing “conservative” justices, joined the decision. Indeed, without
their support, Roe would have come out the other way. That
Chief Justice Warren Burger and Justices Harry Blackmun and
Lewis Powell joined Justices Douglas, Brennan, Stewart, and
Marshall in Roe speaks volumes about the mainstream nature
of the decision.
The plain and simple fact is that, at the time Roe was decided,
Blackmun, Burger, and Powell did not view the abortion issue
as posing a particularly ideological question. Although all of the
justices understood that Roe addressed a highly emotional and
important issue, none of them imagined at the time that it would
become a flashpoint of American politics and would continue
to shape those politics for decades to come.
This understanding of Roe is consistent with both the news
coverage and the public reaction at the time. Because Lyndon
Johnson died on the same day that the Court announced its decision in Roe, newspapers, magazines, and news shows treated
the Court’s decision as only a secondary headline. The primary
story was the death of the former president. Although U.S. News
& World Report, to cite just one example, described Roe at the
time as “a historic resolution of a fiercely controversial issue,”
it did not even mention it on the front page of that week’s issue. Forty years later, the editors observed correctly that “the
far-reaching effects of the decision weren’t evident at the time.”
This view is consistent with the overall tenor of the editorials
and commentary about Roe in the days after the decision. In general, they tended to be approving and relatively moderate in tone.
Even newspapers in Georgia and Texas, whose laws had been
held unconstitutional, were supportive. The Atlanta Constitution
characterized the decision as “realistic and appropriate,” the
Houston Chronicle called it “sound,” the San Angelo StandardTimes applauded it as “wise and humane,” and the San Antonio
Light gushed that although the ruling was “not perfect, . . . it was
as close to it as humanly possible.” These responses were not at
all surprising in light of the fact that the American people clearly
endorsed the decision. In polls taken at the time, Americans approved of Roe by a significant margin of 52 to 41 percent.
To put that in perspective, it is instructive to compare the
public’s reaction to Roe with its reaction to other, more controversial, decisions. In 1962, for example, after the Supreme Court
held prayer in public schools unconstitutional, 79 percent of
the American people disapproved of the decision. In 1967, after
the Court held laws prohibiting interracial marriage unconstitutional, 72 percent disapproved. In 2010, after the Court held
laws limiting corporate campaign expenditures unconstitutional,
80 percent of Americans disapproved. But only 41 percent of
Americans disagreed with Roe. An additional measure of just
how uncontroversial Roe was at the time is the fact that, when
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6
President Gerald Ford nominated John Paul Stevens to succeed
Justice William O. Douglas in 1975, not a single senator asked
Stevens a question about Roe or about his views on abortion.
Even evangelicals did not condemn the decision. To the contrary, as noted earlier, several years before Roe the American
Baptist Convention declared that abortion should be available
“at the request” of the woman at any time before the end of the
first trimester. In 1973, most evangelicals “regarded abortion
as a Catholic issue.” Even evangelicals who did not share that
view did not make a fuss over the decision. Indeed, it was not
until the end of the decade that the evangelical community finally changed its tune and began to focus negatively on Roe as
an important religious, moral, and political issue.
The one group that did strongly condemn Roe from the very
moment of the decision were Catholics, who disapproved of
the decision by a margin of 56 to 40 percent. This was hardly
surprising, in light of the fierce legislative battles that had preceded Roe and that had been dominated by Catholic opposition. Within days of the decision, thousands of telegrams and
letters of protest from Catholics began pouring into the Court,
many of them from Catholic school students denouncing the
justices as “murderers” and “butchers.” The vast majority were
addressed either to Justice Blackmun, as author of the opinion,
or to Justice Brennan, as the Court’s only Catholic justice. Some
went so far as to call for Brennan’s excommunication from the
Church. Many of the letters to Justice Blackmun invoked God’s
wrath and attacked him as “a baby killer.” Blackmun noted that
he had “never before been so personally abused and castigated.”
For the next several years, antiabortion picketers, often carrying ugly placards, picketed Blackmun and Brennan at all of their
public appearances.
The campaign to overturn Roe v. Wade was officially underway.
Roe in Hindsight
In the years since Roe, even some observers who agreed that the
Texas law was unconstitutional have charged that the Court in
Roe went too far, too fast. They maintain that the Court should
have invalidated the Texas law, because it allowed abortion only
to save the life of the mother, but should have left the constitutionality of other restrictions on abortion to the future. They
insist that the Court’s more ambitious approach unnecessarily
ignited a torrent of destructive opposition. They maintain that,
had the Court been more tentative in Roe, the issue of abortion
might have worked itself out through the legislative process
without the Court imposing its will on society. Justice Ruth
Bader Ginsburg, for example, has consistently argued that, by
venturing “too far in the change it ordered,” Roe “stimulated the
mobilization of a right-to-life movement” and put an end to the
legislative progress that was already underway.
Why did the Court in Roe eschew this more modest approach?
Why did it reach out beyond what was necessary to decide the
case before it and address such issues as trimesters, viability, and
medical regulations? Given that public opinion clearly supported
the right of a woman to terminate an unwanted pregnancy, why
did the justices feel the need to move so far, so fast? If the state
legislatures would eventually have reached the same outcome
themselves, shouldn’t the Court have let the issue percolate
through the political process and addressed the constitutional
questions in a more incremental manner, one by one, as they
arose over time?
In the 1960s, an average
of more than 200
women every year died
as a result of botched
illegal abortions.
At least two considerations help explain why the Court moved
as boldly as it did. First, and perhaps most obviously, it was clear
by 1973 that, despite the state of public opinion, most legislatures
were unlikely to act on the majority view anytime soon. Only
four states had enacted an approach similar to the one embraced
in Roe; none had done so since 1970. The plain and simple fact is
that by 1973, the power of determined, passionate, single-issue
voting had effectively frozen the legislative process. It was clear
by 1973 that any further progress in the state legislatures was
likely to be slow, painful, and halting, at best.
Second, although patience may be a virtue in most circumstances, it is not necessarily a virtue when legislative paralysis
denies millions of Americans a fundamental constitutional right
and causes as many as one million women each year to have to
resort to dangerous, degrading, and illegal back-alley abortions.
It must have seemed clear to the justices that the option of sitting back and patiently letting the state legislatures dither over
these issues for five, 10, or 20 years was not a responsible option.
Whatever the reason, or combination of reasons, for the
Court’s decision to act as decisively as it did in Roe, it is clear
that the justices in Roe intended to settle the abortion issue then
and there, once and for all.
It turned out not to be that simple. q
Published in Litigation, Volume 43, Number 1, Fall 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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