Roe: Controversial Judicial Decision-making

Ryan Heshmati

March 25, 2022 (Last Modified July 20, 2022)

The case centered around a then-21-year-old Norma McCorvey, for whom attorneys Linda Coffee and Sarah Weddington sued on behalf in 1970, using the pseudonym “Jane Roe.” McCorvey had discovered she was pregnant with a third child and enlisted the help of the attorneys so she could receive an abortion, which was illegal at the time. The baby was ultimately delivered in June of 1970, however this was only the beginning. 

A three-judge panel of district court judges unanimously decided that the Texas law preventing Norma McCorvey from receiving an abortion was unconstitutional, siding with her. The law, the Court argued, violated the Ninth Amendment’s right to privacy. The decision was appealed to the Supreme Court in 1970, but it would be three years before the decision was handed down. After long consideration about how to write the majority opinion by Justice Harry Blackmun, along with two new additions to the court, Justices William Rehnquist and Lewis F. Powell Jr, it was decided the case needed to be reargued. 

After Roe v. Wade was reargued on October 11, 1972, Blackmun continued writing his opinion. While Justices Powell and Marshall both felt state intervention should be permitted at the point of viability, other members of the majority intended to go a step further. Blackmun, in an internal memo, admitted that the trimester framework he proposed, which hindered states’ abilities to heavily restrict abortion in the first two trimesters, or 26 weeks, was, “...arbitrary,” but defended it, arguing, “but perhaps any other selected point… is equally arbitrary.”

Finally, on January 22, 1973, the court handed down its decision, declaring the Texas abortion ban unconstitutional. In its majority opinion, the Court argued, “This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether to terminate her pregnancy.” Ruling in favor of Roe, this decision, arguably the most controversial in modern American jurisprudence, effectively dismantled most of the law regarding abortion restrictions.

Essentially, critics argue, the majority found the right to privacy included the right to terminate a pregnancy without precedent or text in the Constitution to back it up. Besides the fact that this conviction is not substantiated by the Constitutional text, many opponents contend, it also lacks historical support. Restrictive abortion laws were on the books in twenty-seven of thirty-seven states by 1868, the year the 14th Amendment was passed. In his dissent upon Roe, Justice Rehnquist cited these past abortion laws and wrote, “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.”

Concerns about Roe were immediately shared throughout the legal community, with John Hart Ely, in the Yale Law Journal, writing, “ [Roe] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” The view that the majority simply legislated from the bench was echoed by many others, with Laurence Trobe, a constitutional law scholar, writing, “... behind its own verbal smokescreen, the substantive judgment on which it [Roe] rests is nowhere to be found."