What Lead Up to Roe v. Wade?

The Background and the Players

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Roe v Wade. AP

Roe v. Wade was originally presented on May 23, 1970 in the Fifth Circuit Court in Dallas before three judges. During that time, abortion was regulated at the state level. Roe v. Wade was ultimately argued before the Supreme Court. This historic case legalized a woman's right to have an abortion throughout the entire United States. How did this landmark case come to be?

Background Leading Up to Roe v. Wade:

In 1969, at the age of 22, Norma McCorvey became pregnant.

She had just lost her job, was poor, and did not want to continue with her pregnancy. Texas law prohibited abortion with the exception to save a woman's life. Norma McCorvey tried to find a doctor who would be willing to perform an illegal abortion. Though she did not succeed in finding a doctor, McCorvey meet Sarah Weddington and Linda Coffee - two attorneys who were concerned about changing the abortion laws. These lawyers were trying to find a woman who wanted an abortion, but did not have the means or money to obtain one. They needed a plaintiff who would remain pregnant and would not travel to another state or country where abortion was legal. Norma McCorvey fit the bill perfectly, and soon they were introduced to McCorvey via an adoption attorney.

Texas Abortion Laws:

Texas passed its anti-abortion law in 1859. Like other such laws in the U.S., it only punished the persons performing or furnishing the means for an abortion.

So, even though the law does not punish the woman who is trying to persuade her doctor to perform an abortion, Texas anti-abortion statutes made it a criminal offense for any persons who provided abortion except for the purpose of saving the mother's life. Also, hospitals could lose their operating license for permitting an illegal abortion within their facilities.

However, Texas anti-abortion statues were unclear in their potential application to the situations in which women request abortions. This left doctors and hospitals needing to exercise special caution to avoid prosecution. It seemed that the only clear case of legal abortion was if the pregnancy would likely cause the woman’s death. Given the rarity of this happening, the majority of cases presented legal uncertainty, so doctors turned away most abortion cases to avoid the reasonable possibility of receiving significant penal (a felony sanction of up to five years in jail) and/or administrative sanctions (revocation of medical license).

Who Were Roe and Wade?

  • Norma McCorvey, the plaintiff, took on the alias, "Jane Roe" to protect her real identity (McCorvey actually remained anonymous until the 1980s). The case was originally filed on Roe’s behalf (who was 6 months pregnant at the time), but it turned into a class-action suit so that McCorvey would represent, not just herself, but all pregnant women.
  • The defendant was Henry B. Wade, the district attorney of Dallas County, Texas.

Plaintiff's Claim in Roe v. Wade:

Though the plaintiff had two major hurdles to get over:

  1. A pregnant woman lacked standing to sue over a law's potential unconstitutionality since the law applied to medical practice (and not patients).
  2. Given the lengthiness of court proceedings, the case may be declared no longer applicable and thrown out of court once McCorvey gave birth (or at least passed the point where an abortion could be safely performed).

The case was filed anyway, arguing that the 1859 Texas abortion law violated women's constitutional right to have an abortion.

The Attorneys:

Sarah Weddington and Linda Coffee were the plaintiff's lawyers. The defendant's lawyers were John Tolle (chosen to defend the enforcement of the Texas abortion law) and Jay Floyd (to defend the law itself).

The Original Roe v. Wade Case - May 23, 1970:

The case was first argued in the Fifth Circuit Court in Dallas before three judges. Weddington and Coffee wanted the court to decide whether or not a pregnant woman had the right to decide for herself if an abortion was necessary. They built their arguments on the Ninth and Fourteenth amendments to the U.S. Constitution. Though a bit confusing, the Ninth Amendment protects implicit rights hinted at but not explicated elsewhere in the Constitution. The Fourteenth Amendment prohibits states from denying citizens life, liberty or property without due process of law.

The U.S. Supreme Court had already established, in the 1965 Griswold v. Connecticut case, that a constitutional right to privacy was found in and protected by both the Ninth and Fourteenth amendments. So, Weddington and Coffee argued that the Texas Abortion Law denied Roe her right to privacy -- claiming that the Texas law was unconstitutional as it violated the privacy protections the Court had previously found in both amendments. They further disputed that the right to privacy should protect the right of a woman to decide whether or not to become a mother.

The defendant chiefly argued their case on the basis that a fetus had legal rights which must be protected by the Constitution, claiming, "that the right of the child to life is superior to that of a woman's right to privacy." The judges ultimately ruled that the Texas law violated Roe's right to privacy found in the Ninth and Fourteenth Amendment and that a woman did have the right to terminate her pregnancy. McCorvey was pregnant when she became the lead plaintiff in the case. In June 1970, she gave birth and placed her child up for adoption.  

In 1971, the Roe v Wade district court decision is appealed, so the case is sent on to the first round of US Supreme Court arguments.

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