Everybody, at some point in their life, sees ways in which society can be changed to make life better for themselves and others. Bringing a legal challenge in the courts is one way in which ordinary citizens can bring about the change they wish to see when politicians and governments refuse to act. Women have campaigned across the world for a very long time, and continue to do so, for not only equality but for autonomy – the right to control their lives, bodies and future independent of others. This post is about one such fight, a famous US Supreme Court case called, Roe v Wade, in which two campaigning attorneys fought through the courts to give women the right to control their bodies rather than having decisions made for them by state legislatures and governments, composed mostly of men. As we look at it, we’ll take a journey through the legal history of abortion.
An unmarried woman and the mother of two children, Norma McCorvey was living in Dallas, Texas, when she discovered she was pregnant with her third child and sought an abortion. Texas law at the time forbade abortions except in cases where the woman’s life was in danger, so Ms McCorvey tried to secure a safe abortion with properly qualified medical doctors by falsely claimed she had been raped, wrongly believing that this was an exception under Texas law. The only alternative at the time was an illegal, backstairs, abortion but her attempts there also came to nought. Desperate to find a safe solution to her unwanted pregnancy, Ms McCovey was put in touch with Linda Coffee, a lawyer and member of the Women’s Equity Action League, and Sarah Weddington, a lawyer who had herself been forced to travel to Mexico for an illegal abortion the year she graduated from university.
In 1971, Henry Wade was the District Attorney for Dallas County, so it was upon him that proceedings were served to challenge as unconstitutional the Texan abortion laws. To protect Ms McCorvey’s privacy she was given the pseudonym of Jane Roe in the proceedings and so the soon-to-be world-famous case of Roe v Wade was born. She would soon be joined in the litigation by Dr Hallford and a couple named in the proceedings as Mr and Mrs Doe, more about them later.
Early law on abortion
This is a blog about legal history so let’s take a moment to examine some.
You may, or may not, think of abortion as a modern phenomenon undertaken by skilled doctors dispensing drugs or using surgical techniques. But, abortion has probably been with us since we developed our ability to reason out likely future events and use tools.
Most early civilisations had little problem with abortion. They saw it as neither immoral nor as a crime. Aristotle thought abortion a useful tool to prevent over-population saying that, “when couples have children in excess, let abortion be procured before sense and life have begun”. In his mind, sense and life began sometime after conception but before birth and took longer for a female foetus than for male one. In later centuries, Christian scholars would build on Aristotle’s ideas with the notion that life began in males forty days after conception and eighty days after conception for females. How they proposed to identify the sex of the baby in utero then when it is very difficult for us to do the same in the 21st century presents an obvious problem to using this system to proscribe abortions.
Plato, perhaps unsurprisingly, held much the same opinion as his student stating that feticide is an institution of the ideal state and should be practised whenever a woman over the ideal age for childbirth becomes pregnant. Plato seemed to temper his own opinion by stating that abortions should only be performed when the population of Athens was above 5,040. I have no idea why he chose that number nor is there any indication that it ever formed part of a legal code.
Although Aristotle’s views on abortion were fairly typical for early societies not everybody agreed. Pythagoras of Samos (yes, he of the triangle-fame), who lived around 180-years before Aristotle, believed that life began at the moment of conception and that abortions were thus morally wrong. Hippocrates, the father of medicine, was a contemporary of Pythagoras, although I have no reason to believe they met or knew each other, but the original Hippocratic Oath did mirror the views of Pythagoras on abortion, which the Supreme Court in Roe summed up as:
“I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner, I will not give to a woman a pessary to produce abortion.”
Although Pythagoras and Hippocrates most reflect law as it stood in the 1970s they were very much the minority in their day.
Even if there was no law preventing abortions taking place that did not stop society from punishing women who underwent them, for example, the Cyrene legal code issued between 331 to 326 BC forbade women who had undergone an abortion from entering a temple or sacred place because “she is polluted with death”. https://www.academia.edu/10297925/Abortion_in_ancient_Greece
That abortion was legal and acceptable in societies like ancient Greece should come as no surprise given that leaving unwanted infants to die of exposure would have raised few eyebrows so why should abortion? Aristotle made the point that abortion was preferable to exposure and it is difficult to disagree with that.
England between the Middle Ages and the present
Religion in the Middle Ages begins to proscribe abortion for the same reason Catholicism frowns on contraception, because the Bible commands people to “be fruitful and multiply”. The earliest references to abortion in English law appear in the 13th century and followed Church teachings. Nonetheless, abortion was not widely seen as a crime and Wolfgang Muller notes in his book The Criminalization of Abortion in the West: Its Origins in Medieval Law that there were relatively few women were prosecuted for abortion in Europe during the Middle Ages.
Lord Ellenborough’s Act of 1803, 43 Geo 3 c.58, criminalised abortion, setting the penalty for abortion performed after the “quickening” at death. The quickening is the point when the mother feels the baby moving, around 13 to 16 weeks after conception. Pre-quickening abortions received less severe punishments. In 1837, things became really tough with the removal of the distinction of abortion before and after the quickening, meaning any abortion could be punished with a death sentence. The Offences Against the Person Act 1861, sections 58 and 59 made it an offence to procure an abortion or to self-abort either through the use of physical instruments or through the use of drugs. The maximum sentence was originally penal servitude for life or up to two years imprisonment with hard labour or solitary confinement. Both sections remain good law today and still carry maximum sentences of life imprisonment. Despite the OAPA’s blanket ban, abortions were still permissible if continuing with a pregnancy would “make the woman a physical or mental wreck”, R v Bourne,  1 K.B. 687, a case in which a 14-year-old girl was impregnated while being raped by five soldiers. The gynaecologist who performed her abortion was acquitted on the basis that the abortion was necessary to protect the girl’s physical and mental health. Today, the effects of the OAPA 1861 are today further tempered by the Abortion Act 1967, which permits abortion in certain circumstances.
US law prior to Roe v Wade
The American law in the mid-19th century broadly followed the English law as it stood at that point, although did not prescribe the death penalty. In 1828, New York State enacted legislation making a termination in early pregnancy a misdemeanour offence while a termination post-quickening was to be classed as second-degree manslaughter. The New York law incorporated defences for abortions undertaken for medical reasons. This became a template for many other US states.
Toward the end of the 19th century states began to remove the distinction between pre- and post-quickening abortions and increased the penalties for the offence. By the time, Ms McCorvey became pregnant for the third time in the 1970s a majority of US states had completely banned abortions except those undertaken to save the life of the mother. The ban applied even in cases of rape and incest.
The US has a strong tradition of campaigning lawyers who use the law to change and shape society in ways they feel make a positive difference to people’s lives, health and well-being, or at least that’s how it seems to an English lawyer like me. And, that is precisely what was happening in the Roe case. To strengthen their hand the lawyers found two more parties to join the action. First was a Texan doctor named James Hallford who had been prosecuted in the past for providing abortions and who was facing more charges for the same offence. Second, was a married, childless couple, known by the pseudonyms John and Mary Doe. Mrs Doe had been told simultaneously not to get pregnant due to some undisclosed mental health condition and to stop taking the pill, the couple therefore brought proceedings on the basis that if she were to get pregnant in future she would want the right to terminate the pregnancy. All three parties sought a declaration that the Texan code was void plus injunctions preventing the authorities from enforcing the abortion laws.
If you want to bring legal proceedings against someone, whether it is an individual, a company or the government, you can only do so if you have locus standi, the right to be heard in court. For our purposes, it is enough to say that this means you are directly affected by a law you want declared unconstitutional. Your relationship to the issue at hand must be sufficiently close that a court ought to hear your complaint. This is a problem for the Does because while they clearly had worries that the Texas abortion laws might at some point in the future affect them a lot of things had to happen before they would be affected by those laws. For example, there was no reason that the couple could not use an alternative contraception method to the pill, so first that had to fail. Secondly, Mrs Doe had to become pregnant and then she had to decide at that point that her mental illness was such that an abortion was the only option for her. It is quite possible that some, all or none of these things could happen. Henry Wade clearly thought the Does lacked standing to bring the case against him and sought to have their claim struck out.
Mr Wade also wanted to strike out the claim of Dr Hallford as lacking standing in so far as the prospect of future criminal charges was too speculative and because if Dr Hallford believed the charges he currently faced at the time of the proceedings were unconstitutional then the proper place to make that challenge was before the criminal court hearing his case. Mr Wade viewed Dr Hallford’s case as an attempt to circumvent the proper workings of the criminal courts.
The District Court agreed with Mr Wade that the Does lacked standing but the three judges on the panel found that Dr Hallford had a good case and allowed him to proceed. The court went on to declare the Texas abortion laws to be in breach of the US Constitution and thus void; however, they declined to grant an injunction against the state from enforcing the law, which meant that although the law was unconstitutional it remained enforceable by the State.
Everybody appealed, the Does against the dismissal of their case and Ms Roe and Dr Hallford against the refusal of the injunction. The District Attorney, appealed against the grant of declaratory relief and sought to argue that neither Dr Hallford nor Ms Roe had standing to bring proceedings at all.
Thus, the scene was set for the case to be brought to the Supreme Court of the United States.
The appeal in the Supreme Court of the United States
Sarah Weddington for the plaintiffs put her case on the basis that the Texas state law was too vague to be permitted to stand and that it violated a woman’s right to continue or terminate a pregnancy.
The Texas law was too vague because, Ms Weddington argued, it permitted an abortion only when a woman’s life is in danger whereas in other states the law permitted abortions where the woman’s life or health was threatened. This latter approach is the more sensible says Ms Weddington because “health is a continuum” not a black and white issue. So, how is a doctor to know whether, for example, an abortion performed not because the woman’s life is in immediate danger but because continuing with the pregnancy will shorten her life, is legal or not? She argued, “he does not know whether death must be certain or whether it may be an increase in probability of her death”. Ms Weddington made many other arguments about the effect of pregnancy on women in Texas, particularly with regard to their education, employment and family. You can read her full comments here, or listen to the recordings of the legal arguments here – if you happen to be a law student then this is excellent advocacy so well worth a listen.
Next Ms Weddington turned to specific parts of the Constitution that she says are violated by the Texas law. She makes the point that in 1787, when the US Constitution was signed, there were no laws in the USA prohibiting abortions – even where English law applied the Constitution pre-dates Ellenborough’s Act and so the framers could never have regarded that as part of the existing law at the time. As such, the Ninth Amendment comes into play. That Amendment is part of the Bill of Rights and it makes clear that, “The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.” Ms Weddington argued that the Ninth Amendment was breached because, “… one of the purposes of the Constitution was to guarantee to the individual the right to determine the course of their own lives” and you might think, as Ms Weddington did, that the right to continue or end a pregnancy is an important personal right affecting the course of a woman’s life.
Ms Weddington also sought to argue that by legislating against abortion, the Texas state government was interfering with the Fourteenth Amendment rights to life, liberty and due process by removing a woman’s right to choose whether to proceed with an unwanted pregnancy or not.
In response, Jay Floyd appeared on behalf of Mr Wade. He opened with a bad joke referencing his two opponents’ attractiveness that is reported to have angered Chief Justice Burger so much that he glared at Mr Floyd with such venom a witness thought he might leap across the bench at the unfortunate advocate.
Mr Floyd’s approach was to argue that none of the plaintiffs had standing in the proceedings. The Does had already been disposed off and Mr Floyd repeated the lower courts reasons for excluding them. He repeated the arguments we’ve already heard for striking out Dr Hallford’s claim. Finally, he sought to strike out Ms Roe’s claim on the basis at she had already given birth by the time of the appeal and so no longer had anything to gain or lose by the action. He was successful with respect to Dr Hallford and the Does but the court held that to prevent Ms Roe continuing would effectively mean no pregnant woman whose case was based on her pregnancy could ever appeal.
The State’s substantive argument was that it had the right to govern abortions so as to protect the life of the unborn child, which harks back to a Pythagorean and Hippocratic world-view. He argued that a foetus is a person and as such their life is guaranteed by the Constitution. The Fourteenth Amendment tells us that “… nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. So, if a foetus is a person then the State is barred from doing anything to deprive the foetus of its life and would have to prosecute anybody who did. Texas cited known facts of foetal development show that a foetus is a person; however, I think that misses the point because the question is not whether the foetus is morally a person but whether they are a person within the meaning of the US Constitution and it is there that the State’s argument fails. The Fourteenth Amendment opens with the words, “[a]ll persons born…” – well a foetus by its very nature has not been born. The word “person” is used in several places in the Constitution but nearly all the uses could only apply after birth and none clearly apply to a foetus. So, the Supreme Court held that the Fourteenth Amendment cannot be read to protect the life of an unborn child.
Mr Floyd also argued that giving women the right to an abortion ignores the opinion of the father who may object to the termination, which on any reckoning is a weak argument since no law at the time required both father and mother to agree to an abortion. Perhaps a stronger argument was that women do have a choice in determining the course of the own lives, but that choice comes before, and at the point, that a woman chooses to become pregnant not after conception, which is how Mr Floyd sought to conclude his case. Justice Stewart immediately attacked the rather obvious flaw in this argument that Texas law provided no exemption in the case of rape, as Ms Roe had already discovered, and that as such the State cannot reasonably argue that it has legislated with the intention that women can make a free choice in all circumstances prior to conception.
Mr Justice Blackmun gave the opinion of the court.
Having heard the case, which included evidence that abortion becomes more dangerous for the mother after the first trimester of pregnancy and that there is a point prior to birth at which the foetus is capable of living outside of the mother’s womb, the Supreme Court created the concept of the “compelling point”. The compelling point will come about once the foetus can have a meaningful life outside the womb. The court also identified as important, the point at which abortion becomes hazardous to the mother’s life. At these points, there are both biological and logical reasons for permitting the State to regulate abortion including to the point of prohibiting it except where necessary to preserve the life or health of the mother.
The court said that in early pregnancy, where the foetus is not viable and there is little risk to the mother then, “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.”
When the stage of pregnancy is reached where the mother may be harmed by an abortion then the State may choose to regulate abortion, “in ways that are reasonably related to maternal health”.
Once the foetus is viable, “the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Texas law permitted abortion only where the mother’s life was at risk and made no distinction between safe, early abortions and those performed after the compelling point it therefore the court said that it, “cannot survive the constitutional attack made upon it here.”
The Supreme Court decision was not unanimous, and Mr Justice Rehnquist gave the dissenting judgment, which took a very legalistic view of the case. He argued that because there was no evidence of Roe’s stage of pregnancy at the time proceedings began the court had overstepped its authority by mandating what states could do in the early stages of pregnancy. He felt that by breaking down the States role in regulating abortion into three stages the court had entered the realm of legislating rather than interpreting law. Justice Rehnquist also took the view that the drafters of the Fourteenth Amendment could not have intended to protect the right to abortion, which was unknown to them.
Despite the dissension, Roe v Wade has been good law in the USA for the past 45 years. It has had an impact far beyond the USA and has influenced people and societies around the world ever since the decision was handed down on the 22 January 1973.