Legal Analysis of Roe v. Wade

In Roe v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court held “unduly” restrictive state regulation of abortion to be unconstitutional, resulting in de facto legalization of abortion through all nine months of pregnancy in the entire United States. In a 7–2 vote the Supreme Court held that a set of Texas statutes criminalizing abortion in most instances violated a woman’s constitutional right of privacy, which the court found implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment.

The case began in 1970 when Jane Roe (a fictional name used to protect the identity of Norma McCorvey) instituted federal action against Henry Wade, the district attorney of Dallas county, Texas, where Roe resided. The court disagreed with Roe’s assertion of an absolute right to terminate pregnancy in any way and at any time and attempted to balance a woman’s right of privacy with a state’s interest in regulating abortion. Writing for the majority, Harry A. Blackmun noted that only a “compelling state interest” justifies regulations limiting “fundamental rights” such as privacy and that legislators must therefore draw statutes narrowly “to express only the legitimate state interests at stake.” The court then attempted to balance the state’s distinct compelling interests in the health of pregnant women and in the potential life of fetuses. It placed the point after which a state’s compelling interest in the pregnant woman’s health would allow it to regulate abortion “at approximately the end of the first trimester” of pregnancy. With regard to fetuses, the court located that point at “capability of meaningful life outside the mother’s womb,” or viability.

Repeated challenges since 1973, such as Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), have narrowed the scope of Roe v. Wade but have yet to overturn it. In Gonzales v. Carhart 550 U.S. 124 (2007), the Supreme Court upheld the federal Partial-Birth Abortion Ban Act of 2003 (18 U.S.C. § 1531), which prohibited a gruesome abortion procedure known as intact dilation and evacuation.