As Supreme Court Justice Harry Blackmun opened his 112-paragraph majority opinion in Roe v. Wade, he made it clear the justices understood the legal and legislative minefield they had entered.
We “acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires,” he wrote.
In the nearly five decades since, the abortion debate has become no less emotional and divisive while the ruling has been referenced countless times in efforts to overturn or strengthen the opinion.
Still, from today's more politically polarized era, the 7-2 decision in 1973 — which struck down an 1854 Texas law that banned abortions unless needed to save the mother’s life – looks oddly bi-partisan with justices nominated by Republican and Democratic presidents lining up on both sides of the debate.
Most of the focus of the Roe v. Wade opinion has been on the final paragraphs where the justices ruled that criminal abortion laws violated the Due Process Clause of the Fourteenth Amendment "which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy."
While those paragraphs established a key precedent for future courts and held up in the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey ruling, it's illuminating to consider the long lens Blackmun used in crafting the entire opinion.
Roe v. Wade is broken into 12 sections, but it's the sixth section where Blackmun takes great pains (nearly a third of the opinion) to dive deep into historical precedents.
Here's a brief look at each of the sections with the exact words Blackmun used in each section. Some are edited solely for length and retain the original context. Sections in italics are not from the ruling.
Section I: Texas abortion statute at issue
The seven paragraphs provide the introductory context for considering the case: Changing attitudes toward abortion that have sparked debate in multiple states and a Texas law — like many others — that was more than a century old.
Section II: Four initial litigants
Three cases combined into Roe v. Wade:
- Norma McCorvey, a Texas mother of two known by her pseudonym Jane Roe, who against state laws wanted to end a pregnancy.
- James Hubert Hallford, a licensed physician, who had been arrested for violations of the Texas abortion statutes.
- John and Mary Doe, a Texas couple, who wanted access to an abortion should Mary Doe, who suffered from a 'neural-chemical' disorder, become pregnant.
Section III: Why they skipped a step
Section IV: Why the court took just the Roe case
Roe was part of a 1970 class action case, and even though Roe and the other women were no longer pregnant, the justices chose to consider the case because no pregnancy would likely last the length of the judicial process.
The other two cases, though, fell short.
- Hallford had not been unfairly arrested or prosecuted for performing abortions in Texas.
- The Does case was similar to the Roe case, but the justices viewed it as too speculative.
Section V: The personal right at issue in Roe
Section VI: Abortion throughout history
Section VII: Why abortion laws were established
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. ... Modern medical techniques have altered this situation.
The third reason is the State's interest — some phrase it in terms of duty — in protecting prenatal life:
- Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception.
- Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life.
Section VIII: Proper breadth of abortion laws
Section IX: Protections of the Fourteenth Amendment
Section X: Aspects of abortion that can be regulated
Section XI: Summary
The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.
Section XII: Concurring opinion and dissent
Contributing: John Fritze, Chelsey Cox
Source: Cornell Law School Legal Information Institute