ADVERTISEMENT

ADVERTISEMENT

Abortion and the Supreme Court: A short legal history of Roe

In the fall of the 1971, when the abortion case was heard for the first time, the justices were focused on an equally momentous clash over the fate of the death penalty.

United States Supreme Court overturns the landmark Roe v Wade abortion decision
Anti-abortion demonstrators celebrate Friday, June 24, 2022, outside the United States Supreme Court as the court ruled in the Dobbs v Women’s Health Organization abortion case, overturning the landmark Roe v Wade abortion decision.
Evelyn Hockstein / Reuters
We are part of The Trust Project.

WASHINGTON — The early American laws prohibiting abortion were adopted in the 19th century in an era when women could not vote or hold elective office.

Many of them made abortion a crime, except when it was done for the purpose of saving the mother's life.

Those strict bans came under attack in the late 1960s as part of the women's liberation movement.

Several states adopted laws that permitted doctors to terminate pregnancies for several reasons, including in cases of rape or when the woman's health was endangered.

But when the Supreme Court first weighed a constitutional challenge to abortion laws, only four states, led by New York, had legalized the procedure.

ADVERTISEMENT

The issue came before a court that was in transition.

Five justices remained from the liberal court led by Chief Justice Earl Warren, and they were joined by four new appointees of President Richard Nixon.

In the fall of the 1971, when the abortion case was heard for the first time, the justices were focused on an equally momentous clash over the fate of the death penalty.

United States Supreme Court overturns the landmark Roe v Wade abortion decision
Abortion rights demonstrators protest outside the United States Supreme Court on Friday, June 24, 2022, as the court ruled in the Dobbs v Women's Health Organization abortion case, overturning the landmark Roe v Wade abortion decision.
Evelyn Hockstein / Reuters

In June 1972, the same month as the Watergate break-in, the Supreme Court struck down all the death penalty laws in a splintered 5-4 decision, with the Nixon appointees in dissent.

The court then agreed to put off a decision on the abortion issue until the next term.

Two of Nixon's justices had a surprise for their colleagues. Justice Harry Blackmun had been the general counsel for the Mayo Clinic in Minnesota before becoming a judge, and he saw the abortion issue from the viewpoint of a physician.

He did not see why 19th century laws should restrict a doctor from performing a medical procedure that was, by the middle of the 20th century, safe and effective.

Justice Lewis Powell, a prominent lawyer from Richmond, Virginia, had once comforted a distraught young man at his law firm whose girlfriend had died from a botched abortion. He too thought abortions should be safe and legal.

ADVERTISEMENT

With Blackmun and Powell on board, there was clear majority for striking down the laws on abortion.

Chief Justice Warren Burger had assigned the abortion cases to Blackmun, believing he would turn out a careful and modest opinion.

Instead, he wrote an essay on the history of abortion extending back to Greek and Roman times, followed by a set of rules for abortions going forward.

The most significant part of the ruling was added only weeks before the opinion was released in January 1973. It said states may not forbid abortions until "viability," which occurred about the 28th week of a pregnancy.

Until that point in a pregnancy, "the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician," wrote Blackmun, characterizing it as a matter of doctors' rights, not women's rights.

Blackmun did little to explain how the Constitution included a previously unnoticed right to abortion, other than to note the court in the past had cited an implicit right to privacy.

Years later, this failure helped launch a conservative legal movement devoted to the belief the Constitution should be interpreted based on its words and original history.

He also rejected the Texas claim that the state had the power to protect the life of the unborn.

ADVERTISEMENT

"The unborn have never been recognized in the law as persons in the whole sense...and we don't agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman."

That conclusion helped launch the "right to life" movement which, decades later, became the base of the Republican Party.

©2022 Los Angeles Times. Distributed by Tribune Content Agency, LLC.

______________________________________________________

This story was written by one of our partner news agencies. Forum Communications Company uses content from agencies such as Reuters, Kaiser Health News, Tribune News Service and others to provide a wider range of news to our readers. Learn more about the news services FCC uses here.

What to read next
House Oversight Committee Chairwoman Carolyn Maloney and Stephen Lynch, Chairman of the Subcommittee on National Security, urged chief executives to act fast in letters addressed to eight internet companies, including Facebook-parent Meta Platforms Inc., Twitter Inc. and TikTok.
Allen Weisselberg, 75, the former chief financial officer at the Trump Organization, entered his plea to all 15 charges he faced in a New York state court in Manhattan. Weisselberg, who has worked for Trump for about a half-century, is not expected to cooperate with Manhattan prosecutors in a larger probe they are conducting into Trump.
A briefing document provided by the agency on Wednesday said an external report into its response found public guidance had caused confusion, while important information were sometimes released too late to inform federal decisions. CDC Director Rochelle Walensky said in response the agency was undertaking a series of changes designed to make it more nimble at responding, quicker at providing data and less focused on publishing fully vetted scientific papers.
Because President Biden is considered a close contact of the first lady according to CDC guidance, he will wear a mask for 10 days when indoors and when in close proximity to others.