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April 10, 2026

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"43. Grounding the right to abortion in the Fourteenth Amendment and in the concept of substantive due process (Roe v Wade 153, 164) was, and still is, one of the most controversial aspects of Roe v Wade. Justice Stewart concurred in Roe v Wade mainly to pay homage to substantive due process and the Court’s willingness to invoke it so explicitly after having seemingly put the doctrine to rest in Ferguson v Skrupa. Justice Stewart noted that Griswold v Connecticut should itself be understood as a substantive due process case, although the case did not rest expressly on that basis. 44. Justice Rehnquist, one of two dissenters in Roe v Wade, took issue with the new right. He thought the right to an abortion was a form of ‘liberty’ protected by the Fourteenth Amendment, but the Fourteenth Amendment imposed a procedural requirement, not a substantive one. The right, therefore, was only protected against its deprivation without due process of law (Roe v Wade 173). He disagreed that abortion was part of a right to privacy because neither the abortion procedure was private, as abortion involved a doctor, nor was abortion connected to the ‘privacy’ associated with the Fourth Amendment’s protection against unreasonable searches and seizures (ibid 172). Moreover, although Justice Rehnquist conceded that due process protected some substantive rights, he thought abortion was not among those because approximately 36 state and territorial legislatures limited abortion at the time the Fourteenth Amendment was adopted (ibid 174–75). He preferred a rational basis test that would permit more deference to the legislature, especially for some restrictions on first-trimester abortions. He thought the ‘compelling state interest’ test was inappropriate: it was borrowed from Equal Protection cases and would leave ‘this area of the law more confused’ (ibid 173), and it would trample upon the legislature’s judgment (ibid 174). He called the Court’s tripartite framework ‘judicial legislation’ not reflective of the founders’ intent (ibid 174). 45. Justice White also dissented. He focused on the claims of women who had no threat to their life or health from carrying a fetus to term, like the plaintiffs before the Court, and noted that they wanted to end the pregnancy potentially for ‘convenience, sham or caprice’ (ibid 221). He thought the resolution of the competing interests ‘should be left with the people and to the political processes’ because ‘nothing in the language or history of the Constitution’ required otherwise (ibid 221–22)."

- Roe v. Wade

• 0 likes• 1973• women• abortion-in-the-united-states• united-states-case-law• 1970s-in-the-united-states•
"37. According to polls, most Americans held views that aligned with Roe v Wade at the time it was decided: ‘64 percent of American believed that abortion should be a personal decision to be made by a woman and her physician’ (Faux 304). Nonetheless, opponents of the decision tried to reverse Roe v Wade with congressional legislation (Emerson 129–30), with a constitutional amendment (Faux 318), and with litigation before the → Inter-American Court of Human Rights (IACtHR) (Baby Boy Case 18(h), 30–31). All of these efforts failed. 38. More limited efforts to cabin the effects of Roe v Wade proved successful, however. In 1976, Congress passed the Hyde Amendment, which barred federal Medicaid funds for abortion and thereby made abortion inaccessible for many poor women, at least in those states without state funds for such purposes. A narrowly divided Supreme Court upheld the law in Harris v McRae. Opponents of abortion also advanced other laws that impeded access to abortion to varying degrees (Thornburgh v American College of Obstetricians and Gynaecologists 759), noting that such laws will ‘often shut down clinics’ (Biskupic). Roe v Wade itself signaled that some of these efforts might be permissible by acknowledging the state’s interest in maternal health (Roe v Wade 165), although Doe v Bolton suggested real limits. These efforts caused courts to be ‘drawn further and further into an array of subsidiary technical questions regarding abortion’ (Wilkinson 276). As of 2009, the Supreme Court had decided ‘more than twenty-five cases involving abortion’ (ibid)."

- Roe v. Wade

• 0 likes• 1973• women• abortion-in-the-united-states• united-states-case-law• 1970s-in-the-united-states•
"47. Scholars are divided about whether the Court should have created a constitutional right to abortion. John Hart Ely criticized the Court for not explaining why privacy is involved, and argued the right ‘lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine’ (Ely 931–32, 943). Others have echoed this sentiment, calling the Court’s analysis ‘startlingly shoddy’, (Myers at 1027) and ‘outcome-based jurisprudence’ (Lamparello and Swann 2–3). Ronald Dworkin, in contrast, found critics’ distinction between ‘unenumerated rights’ and ‘enumerated rights’ preposterous (Dworkin 390). He applauded the Court’s ability to derive the right to procreative autonomy from a ‘holistic interpretation of the Bill of Rights’ (Dworkin 418–26). Yet others have suggested that the Equal Protection Clause would have been a preferable or an additional justification for the holding (see eg Ginsburg), and that rationale has crept into some subsequent cases. For example, the joint opinion in Planned Parenthood of Southeastern Pennsylvania v Casey mentioned that ‘[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives’ (Planned Parenthood of Southeastern Pennsylvania v Casey 856). Justice Ginsburg has also mentioned that rationale in later cases (see eg Gonzales v Carhart 172 (Ginsburg, J, dissenting))."

- Roe v. Wade

• 0 likes• 1973• women• abortion-in-the-united-states• united-states-case-law• 1970s-in-the-united-states•
"3. The case has influenced jurists outside the United States. Judges have cited the decision in judgments that liberalize abortion law. For example, this has happened in Canada (see R v Morgentaler (Dickson, CJ at 46; Beetz, J at 113; Wilson, J at 169–171, 181) (holding that Section 251 of the Criminal Code, which restricted access to nontherapeutic abortion, infringed a woman’s right to personal security under § 7 of the Canadian Charter of Rights and Freedoms), in South Africa (see Christian Lawyers Association of South Africa and Others v Minister of Health and Others (upholding legislation permitting abortion during the first twelve weeks of pregnancy; → right to life provision in the constitution did not apply to the fetus); Christian Lawyers Association v National Minister of Health and Others (upholding legislation allowing those under the age of 18 to get an abortion without consent of their parents or guardians)), and in Colombia (see Decision C-355/06 (striking as unconstitutional a statute that barred abortion in all instances)). Jurists who have dissented from decisions that restrict abortion have also cited Roe v Wade, such as in Germany (see Schwangerschaftsabbruch I (dissenting opinion of Rupp-von Brünneck, J and Simon, J)). At times, adjudicators have cited the case when they have decided issues outside the abortion context. Examples exist in England (see Rance v Mid-Downs Health Authority and Another (citing Roe v Wade’s summary of English common law in evaluation of plaintiff’s wrongful birth tort claim)) and India (see Gobind v State of M.P (citing Roe v Wade’s privacy language when deciding a constitutional challenge to surveillance law); Naz Foundation v Govt of NCT of Delhi (citing Roe v Wade’s privacy language when invalidating as unconstitutional a criminal law prohibiting homosexual conduct in private), rev’d Suresh Kumar Koushal v Naz Foundation)."

- Roe v. Wade

• 0 likes• 1973• women• abortion-in-the-united-states• united-states-case-law• 1970s-in-the-united-states•
"I look back in history, and there was a time when many states had laws making contraception illegal. The Supreme Court in ’65 ruled (in Griswold v. Connecticut) that there is a right of privacy and that married people have the right to use contraception. And then the Supreme Court in Baird vs. Eisenstadt (1972) said that right of privacy to decide whether you want to bear or beget a child, and therefore the right to use contraception, is [for] married and single people. So, I thought that this would be a case where Roe vs. Wade would be accepted, maybe not just right at first, but within a few years. And that we could go ahead and move on to work on other issues. But while we were doing that, the opposition was gaining strength. And today, we see the opposition being strong, very strong, and we see a lot of people who have forgotten what it was like when abortion was illegal. And you can’t blame ‘em. They’re too young to remember! What we know from the past is that if abortion is illegal, there will be illegal abortion. And if we come to a period that abortion is theoretically legal, but the laws in various states make it almost impossible for women who are younger or poorer to have access, you’re going to have more illegal or self-abortion. So, I still worry. I’m not as frantic now as I was then, because I think, looking at the Supreme Court, we have a better chance of good decisions right now."

- Roe v. Wade

• 0 likes• 1973• women• abortion-in-the-united-states• united-states-case-law• 1970s-in-the-united-states•
"[M]ost of the quotations I read that day reflected my thoughts accurately. The Houston Post quoted me as “feeling glad for the women of Texas, who now will have access to abortion services.” It also noted my statement that “I would much prefer [that] we did not have the abortion problem, that instead pregnancies be prevented,” and my vow “to lead the legislative battle to liberalize the flow of contraceptive information to minors.” One of the few stories that captured my real feelings on the day we won, however, didn’t appear until a few weeks later, in the Milwaukee Journal: “Sarah Weddington looked uncomfortable as the women pressed close to her, offering their thanks. ‘If I hadn’t done it, someone else would have,’ she explained to them.” Indeed, I saw Roe as part of a much larger effort by many attorneys. I was the one who, through a series of quirks, stood before the Court to represent all of us. Had a different string of events occurred, another case might have been the one to make history. Ron and I also read observations from those who were distressed by the Court’s decision; obviously, not everyone was as pleased as we were about the news. Around the country the antis too had been burning up the telephone wires-but they were talking about how they could overturn the decision, or avoid or blunt its impact. I have always wondered if some of the anti-abortion folk thought the fact that United States and Texas flags flew at half-mast on that January 22, as they did because of President Johnson’s death, was doubly appropriate because of the depths of their disagreement with the decision."

- Roe v. Wade

• 0 likes• 1973• women• abortion-in-the-united-states• united-states-case-law• 1970s-in-the-united-states•
"Sitting with Linda and me in the courtroom were Fred Bruner and Roy L. Merrill, Jr. two Dallas lawyers who had joined our case on behalf of their client, James Hubert Hallford, a physician under indictment for allegedly performing illegal abortions. On March 19 they had filed an application for intervention asking that Hallford be included as a third plaintiff. Hallford had been a licensed physician since 1958; among the women who had come to him seeking abortions were rape and incest victims, women suffering from cancer, and women who had contracted German measles, a virus that can cause gross fetal abnormalities, while pregnant. We welcome Hallford’s participation because his problems added weight to our arguments that the statute was vague and could be interpreted in many ways. We were skeptical that he would be recognized to have standing, however; very seldom do federal courts allow people with criminal charges pending against them in state court to escape from the litigation already in progress to a federal court. At another table in the courtroom were representatives of DA Henry Wade and of the Texas attorney general, Crawford Martin. Judge Hughes had notified Martin of the suit because he was the elected official responsible for defending state laws. Linda and were up against the combined forces of the AG’s experienced legal force of some 130 attorneys and the DA’ s legal staff."

- Roe v. Wade

• 0 likes• 1973• women• abortion-in-the-united-states• united-states-case-law• 1970s-in-the-united-states•