What is Roe v. Wade?
Roe v. Wade and its companion case Doe v. Bolton are the 1973 Supreme Court cases that struck down protections for preborn children nationwide and created a fictional right to abortion on-demand for any reason through all nine months of pregnancy.
Prior to the Supreme Court ruling on abortion in 1973, America had no federal laws regarding abortion.
Because abortion is not found in the Constitution, abortion was left to individual states to regulate.
The Supreme Court is only supposed to interpret the Constitution and reject cases that cannot be ruled on via an interpretation of the Constitution as written. Therefore, before Roe, each state had the ability to make its own laws on abortion
In places like California, abortion was legal prior to Roe. In some states, abortion was not legal under any circumstances.
Abortion enthusiasm grew when Americans obtained unrestricted access to birth control after the 1965 Supreme Court case Griswold v. Connecticut. In Griswold, the Supreme Court ruled that Americans had a constitutional right to access birth control, and their reasoning for this ruling is what laid the foundation for abortion on-demand.
The majority in Griswold, whose opinion was authored by Justice William Douglas, ruled that the Bill of Rights contained a “right to privacy,” and according to Douglas, this “right to privacy” was found in “emanations of penumbras” from the Bill of Rights.
In legalese, that doesn’t really mean anything; the Court essentially made up a right to privacy in order to have a legal justification for something that was clearly not found in the Constitution.
It was this “right to privacy” that served as the legal justification for abortion several years later in Roe v. Wade.
When we talk about Roe, we should be aware that the decision wasn’t an island unto itself; it occurred within the context of a cultural attitude shift toward sex and responsibility that we have to address if we want to walk back Roe.
In Roe, 7 male Supreme Court Justices (with 2 men dissenting) essentially ruled that women have a Constitutional right to abortion based on the fictional right to privacy.
The legal rationale for this ruling is extremely bad, and scholars on both sides of the abortion debate acknowledge how weak of a ruling Roe actually was.
In the course of establishing a right to abortion, the majority in Roe had to deal with the inconvenient fact that settled science said the preborn child is a human being. So how could one person’s right to privacy override another person’s right to life?
To dispense of this dilemma, the court said that it didn’t even need to examine the question of when life begins, saying:
“We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” [p160]
This reasoning is eerily akin to the Court’s rationale for slavery. We should know by now from history that when the Court pontificates on which humans are persons, things go terribly wrong.
In short, Roe sacrificed the right to life of the preborn child to the right to abortion.
According to the United States Conference of Catholic Bishops, which has long studied the legal underpinnings of abortion, the following notable individuals have objected to the legal basis Roe, even when they agreed with its outcome:
- Six justices of the U.S. Supreme Court, unfortunately not simultaneously seated – White, Rehnquist, Scalia, Thomas, Kennedy3 and O’Connor4;
- Justice Sandra Day O’Connor, who was staunchly pro-abortion, said in 1983 that “The Roe .. is clearly on a collision course with itself.”
- Virtually every recognized constitutional scholar who has published a book or article on Roe – including many, like Harvard’s Laurence Tribe, who support Roe’s outcome on other grounds (although he’s switched grounds over the years).
- Yale Law School professor John Hart Ely spoke for many when he stated: Roe v. Wade “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”;6 and
- Edward Lazarus, a former law clerk to Roe’s author, Justice Harry Blackmun, who writes:
“…The proof of Roe’s failings comes not from the writings of those unsympathetic to women’s rights, but from the decision itself and the friends who have tried to sustain it. Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.”
Finally, it’s worth noting that Norma McCorvey, the Jane Roe in Roe v. Wade, never had an abortion.
Norma was enlisted as the plaintiff in Roe by radical pro-abortion lawyers who essentially used Norma as a pawn.
During the Roe proceedings, Norma gave birth and placed her daughter with an adoptive family.
After becoming pro-life as an adult, she spent the rest of her life regretful of her cooperation with the lawyers who argued for Roe and spoke out against the decision until her death.
On the same day Roe was decided, a less well-known but extremely important case called Doe v. Bolton was handed down by the Supreme Court
In short, Doe ruled that women could obtain an abortion for any reason.
So, between Roe and Doe, the Supreme Court currently holds that women in America can procure abortions
- For any reason
- Through all nine months of pregnancy
Today, only a small minority of Americans agree that abortion should be legal for any reason through all nine months of pregnancy on-demand.
Why is Roe important?
Abortion in America does not have a strong legal foundation.
Abortion’s legality currently rests on the very shaky foundation of the wildly flawed, unconstitutional Supreme Court ruling of Roe v. Wade. When Roe is overturned, pro-lifers will have much more power on a state-by-state level to make abortion unthinkable and unavailable in their own communities.
More than 62 million children have been slaughtered in abortion since Roe. So, can we overturn Roe v. Wade? Under President Trump, we have seen a slew of unprecedented pro-life legal progress through appointment of pro-life judges across the country, and the confirmation of two Supreme Court justices who might side, if given the opportunity, to overturn Roe.
We know that overturning Roe is not going to end abortion overnight. When the Supreme Court overturns Roe, the question of abortion legality will return to the individual states. This was the situation prior to Roe, and in that era, a few states permitted abortion while the rest by and large prohibited it.
Even if Roe were overturned AND Congress passed a law banning abortion nationwide, abortion would not cease to be a problem for America. People do things that are illegal all the time. When abortion was illegal in Ireland, which is about the size of Alabama, thousands of Irish women traveled abroad for abortions every year.
In order to end abortion, we have to understand what causes it. And as the largest pro-life organization serving women seeking abortion, Human Coalition has learned a thing or two of what drives the abortion industry.
We’ve learned that women seek abortions because they are afraid; they are afraid of raising a child without support from the child’s father or extended family. They are afraid of raising a child in poverty. They are afraid that their other children will suffer because they feel they can barely care for the ones they already have. They are afraid of bringing a child into a household with an abusive partner. They are afraid of not being able to hold down a job or finish school to provide the life they want for their child.
And the abortion industry gleefully exploits this fear, reinforcing it until the abortion sale is made. If we cannot reach into that fear and disrupt the fear-exploitation cycle that the abortion industry relies on, there is little reason to believe that a change from the Supreme Court or a change in law will totally eradicate abortion.
As Colin LeCroy and Az Rahlouni explained for The Hill in 2017,
Abortion will not end just because the Supreme Court throws out bad precedent and Congress stops subsidizing an abortion juggernaut.
It will only end when culture is transformed to support women and men facing unplanned pregnancies and value the dignity of its most oppressed class, the pre-born.
Overturning Roe may change the status quo around abortion enough, by stirring up awareness that the preborn child is someone worth protecting, that some women who might have considered abortion before Roe would reject abortion if the Supreme Court overturned it.
The sobering fact remains: pregnant women in crisis are largely unreached and underserved by pro-lifers. And if we don‘t change our own behavior, and change the culture, a Supreme Court ruling in our favor may not turn the tide for them. We must address the root causes of their fear — the circumstances driving them toward abortion in the first place. This is not easy work. But it is neessary.
There’s debate over whether law follows culture or vice-versa.
But what we do know is that law and culture influence one another. There is little doubt that overturning Roe would result in a culture shift — potentially one more dramatic than the small, incremental moves of public opinion toward the pro-life position we’ve been seeing year over year.
Beyond its likely effect on culture, overturning Roe is simply the right thing to do.
Roe is the vestige of this era of American history wherein the preborn child has been discarded. The pregnant mother has been pushed aside by partners, families, neighborhoods, churches. The abortion industry has lied to and exploited her for profit, violently killing children in an environment where the culture has been largely hamstrung from doing anything to stop it.
Overturning Roe would upend that status quo, giving the pro-life movement a fresh start and renewed energy.
Whatever happens with the Supreme Court in the coming months and years, let’s commit today, right now, to doing everything in our power to restore our culture to the defense of life.
How can you effect change?
So what can you do to end abortion? We are glad you asked.
Elect Pro-Life Presidents and Senators
The Supreme Court is shaped by the President, who nominates Supreme Court Justices, and the Senate, which confirms the nominees.
It is crucially important to elect pro-life leaders to these positions if we want to see Roe overturned.
Sign the Petition To Overturn RoeSign the Petition Now
Share The Truth About Roe v. Wade
Many Americans claim that they support Roe v. Wade. But when pollsters ask Americans if they support abortion through all nine months of pregnancy, on-demand, for any reason, we find that the truth is that Roe is wildly unpopular.
Educate your family and friends about what the Roe decision really allows and help turn the tide of well-informed popular opinion.
Citations and Resources
Doe (companion case to Roe):
Casey (reaffirmed Roe 2 decades later):
The True Story Behind Roe v. Wade:
Good summary of Roe:
Roe doesn’t have widespread support:
Legal critique of Roe from both sides:
Will the Pro-Life Movement Be A Victim Of Its Own Success?
Number of Abortions: