Research Issues: Abortion

What Roe v. Wade Actually Says
The Legalization of Abortion in the United States

The Supreme Court decided two abortion cases on January 22, 1973: Roe v. Wade, challenging a Texas abortion law, and Doe v. Bolton, challenging a Georgia abortion law.

Together, the cases struck down all state laws restricting abortion in the United States and replaced them with a national policy which effectively legalized abortion for any reason throughout all nine months of pregnancy. Here is a closer look at each case:

Roe v. Wade:

The Court divided pregnancy into three-month periods or trimesters:

First trimester: The Court ruled that states could not restrict or regulate abortion in any way.

Second trimester: The Court ruled that states could regulate abortions only to the extent necessary to protect the “health” of the mother as broadly defined in Doe v. Bolton.

Third trimester: After the unborn child becomes “viable” (able to survive outside the womb with or without medical support), which the Court said occurred at approximately the beginning of the last three months of pregnancy, the Court said states could regulate or prohibit abortion, except when an abortion was done to protect the life or health of the mother.

Doe v. Bolton:

In this companion case to Roe, the Court defined “health” to include “all factors - physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient.” Under this broad definition of “health,” any woman who is unhappy about being pregnant may have an abortion, even in the last months of pregnancy, to protect her “health.”

The core holding of Roe, i.e., that a woman has a constitutional right to abortion, was reaffirmed in 1992 in the Supreme Court’s Planned Parenthood of S.E. Pennsylvania v. Casey decision. The Casey decision also suggested the possibility of life-protective laws after the baby’s viability. Thus, although the so-called right to abortion remains, the Court has said that states may enact certain protective regulations, including some that hold promise for reducing the number of abortions.

 

Total Abortions Since 1973

48,589,993

(Based on numbers reported by the Alan Guttmacher Institute, 1973-2003 Estimates of 1,287,000 for 2004-2006).

 -- National Right to Life Committee reprinted with permission.

MAJOR RULINGS

• 1973: Roe v. Wade, 7-2 vote, ruling that the right to privacy encompassed in the 14th Amendment's due process guarantee protects a woman's decision to end a pregnancy. • 1983: Akron v. Akron Center for Reproductive Health, 6-3, striking down an Akron, Ohio, ordinance that required all abortions after the first trimester to be performed in a hospital. The ordinance also put other restrictions on women seeking an abortion and physicians performing the procedure. In its decision, the court reaffirmed Roe. • 1989: Webster v. Reproductive Health Services, 5-4, upholding Missouri restrictions on the use of public facilities and public employees to perform abortions and requiring viability tests for any fetus believed to be older than 20 weeks. The court did not revisit the validity of Roe v. Wade at the insistence of the key fifth vote in the majority, Sandra Day O'Connor. • 1992: Planned Parenthood of Southeastern Pennsylvania v. Casey, 5-4, reaffirming Roe v. Wade and striking down a provision that required a woman seeking an abortion to notify her husband in advance. Justices O'Connor, Anthony Kennedy and David Souter joined together as a crucial bloc to write that while they might not have voted for Roe v. Wade when it first came to the court, they did not believe it should be reversed after nearly two decades. • 2000: Stenberg v. Carhart, 5-4, striking down a Nebraska state ban on the procedure critics call partial-birth abortion because it lacked an exception for when a physician might believe the method is the best to protect the woman's health. • 2007: Gonzales v. Carhart, 5-4, upholding a federal ban on the so-called partial birth procedure without an exception for the woman's health, effectively reversing the 2000 decision. — By Joan Biskupic , USA Today, 10/31/08