The Many Lives of Roe v. Wade

Joanne Freeman: Ever since Justice Harry Blackmun issued the famous ruling in 1973, the issues to come out of Roe have changed sometimes drastically. I got in touch with law professor Mary Ziegler to get the story of the case, from a fateful trip Justice Blackmun took to the Mayo Clinic to the woman known as Jane Roe. I started by asking Mary to set the stage for the landmark ruling in Roe v. Wade by looking back to another important case in 1965, Griswold v. Connecticut.

Mary Ziegler: Griswold was about a law that was unique at the time. It was a Connecticut law that prohibited married couples from using contraception, not from purchasing it but from actually using it. The Supreme Court struck down that law and more controversially, based that ruling on a right to privacy. That right to privacy wasn’t spelled out in the text of the Constitution or its history, but Justice William Douglas reasoned that if you looked at what he called the penumbras of the Constitution, implications from what was spelled out in the Constitution, that there would have to be a right to privacy broad enough to cover married couples’ access to contraception.

Mary Ziegler: That right to privacy would ultimately come to be the basis for the abortion right in Roe v. Wade.

Joanne Freeman: Wow, which I bet is something that most people don’t know at all, that it had to do with the right to privacy and not so much initially with abortion.

Mary Ziegler: Right. Well, I mean I think that there were already questions at the time of Griswold about just how broad this right of privacy would be. Was this really about marriage, which had been pretty central to the court’s opinion in Griswold, or was it more about the privacy that applied to contraceptive decisions for anybody, married or unmarried? If it did apply to contraceptive decisions, there was an open question about whether that would extend to abortion or whether the court would see abortion as being a totally unrelated issue to contraception.

Joanne Freeman: So then Griswold is about contraception. It’s not about abortion. Let’s focus a little bit more in then on Roe v. Wade. Tell us a little bit about Norma McCorvey and Sarah Weddington.

Mary Ziegler: Norma McCorvey at the time, in 1969, was 21. She already had two children. She learned she was pregnant again and her friends advised her to claim that she had been raped. They thought that Texas would allow for abortion in cases of rape or incest. This wasn’t actually true. Texas allowed only for abortions in cases in which a woman’s life would be at risk. She tried to get an illegal abortion, but found that the facility that she was looking for had actually been shut down by the police and eventually found her way to two attorneys, Linda Coffee and Sarah Weddington.

Mary Ziegler: Weddington at that point had had an abortion herself in a Mexican clinic when she was 22. So I think she understood the stakes of this in a way that others didn’t. Weddington and Coffee actually filed a lawsuit on McCorvey’s behalf using the alias, Jane Roe, seeking a declaration that Texas’ abortion law was unconstitutional. That was how the case Roe v. Wade got started.

Joanne Freeman: It starts out in Texas, and then how does it work its way up to the Supreme Court?

Mary Ziegler: In 1970 there was actually a three-judge panel of the district court in Texas, which is fairly unusual. That court declared the law unconstitutional. The Supreme Court decided to hear the case. Actually the process in the Supreme Court was kind of a long and complicated one. Justice Blackmun had initially wanted to write the opinion differently and the court had had Roe in front of it since 1971 and then didn’t wind up issuing a final opinion until January of 1973.

Joanne Freeman: That’s interesting. So then in the end, how would you sum up the main arguments being presented by the plaintiffs and the defendants in the case as a whole?

Mary Ziegler: Well, Weddington and her colleagues made a variety of arguments.

Speaker 8: We hear arguments in number 18, Roe against Wade.

Sarah W.: Mr. Chief Justice, and may it please the court-

Mary Ziegler: They obviously used the privacy argument that had been made in Griswold and then I think more forcefully in a case the year before Roe came down, called Eisenstadt v. Baird. Eisenstadt involved a Massachusetts law that allowed married couples to use contraception either to prevent STDs or to prevent contraception, but allowed single people only to use contraception for the purposes of preventing STDs. So the courts struck that law down and in passing said that if the right to privacy means anything, it means the right of an individual to control when and whether he or she bears or begets a child, I’m paraphrasing.

Mary Ziegler: Weddington and other abortion rights amici relied on that right to privacy and said it should be broad enough to extend to abortion rights. They made a variety of other arguments too. For example, they pointed to the 13th amendment, which abolished slavery, and described forced pregnancy as a form of involuntary servitude. They gestured to the idea of equality for women-

Sarah W.: A pregnancy to a woman is perhaps one of the most determinative aspects of her life. It disrupts her body. It disrupts her education. It disrupts her employment, and it often disrupts her entire family life. We feel that because of the impact on the woman, this certainly in as far as there are any rights which are fundamental is a matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or to terminate her pregnancy.

Mary Ziegler: The state of Texas and anti-abortion amici made a variety of arguments too. Probably the most significant ones were first that a fetus or unborn child was a person within the meaning of the 14th amendment. What that would mean would be that that fetus or unborn child would be entitled to both due process of the law and equal protection of the law, which would make an abortion right impossible. Texas also argued that it had a compelling interest in protecting life from the moment of fertilization.

Speaker 8: Now, the appellee does not disagree with the appellant’s statement that the woman has a choice. But as we have previously mentioned we feel that this choice is the woman’s prior to the time that she becomes pregnant. This is the time of the choice.

Mary Ziegler: A lot of anti-abortion groups relied pretty heavily on what they saw as scientific evidence. Fetology as a medical specialty was relatively new back then. So there was a lot of arguments to the effect that if you understood what a fetus or unborn child was scientifically, you would have to grant fetal rights.

Joanne Freeman: So then what was the final opinion. How did the Supreme Court sift through that, and how did they come up with their final opinion, and what did they base it on?

Mary Ziegler: Well, yeah. Initially Blackmun had wanted to hold that Texas’ law was just unconstitutionally vague, which would have been a pretty narrow opinion. Essentially he wanted to say that it wasn’t clear ahead of time when a procedure would be needed to save a woman’s life and that that didn’t give doctors enough notice. But a lot of his liberal colleagues weren’t satisfied with that. So over the summer when the court was in recess, he went to the Mayo Clinic in Minnesota and then developed a very different opinion, which is the Roe opinion that we have now. The fact that Blackmun was at the Mayo Clinic is pretty evident in the opinion. There’s a lot of discussion of the medical history of abortion, and even the kind of rule of law that comes out of Roe is a very medical one.

Mary Ziegler: In the first trimester, the court held that abortion regulations were broadly unconstitutional, that the state didn’t have much authority to regulate at all, that in the second trimester the state could regulate only to protect women’s health and only after fetal viability, which was the point the court defined as when a child could survive outside of the womb independently. The court, in reaching this conclusion, relied on the right to privacy and on precedents like Griswold but framed them very much in medical terms, said that the abortion decision is something that a woman will make in consultation with her doctor. This was not strongly feminist language about a woman’s right to choose, which basically doesn’t appear anywhere in the Roe opinion.

Mary Ziegler: The court also rejected the key anti-abortion arguments, so when it came to personhood the court said that the word person in the Constitution seems to apply only to people after birth. So it wouldn’t have been intended by the framers to include life in utero. When it came to a compelling interest in protecting life, the courts said that religious authorities and doctors and philosophers all have adopted different understandings when life begins, so the Supreme Court would be in no position to impose one of those definitions on everyone else.

Joanne Freeman: Wow. That’s fascinating that they had no idea about the visit to the Mayo Clinic and the way in which medicine worked its way through this decision to such an extreme degree. Do you think that’s part of what explains the relative harmony around the ruling? I mean, I gather that there were only two justices that dissented.

Mary Ziegler: Yeah. I think at the time many of the justices thought that this was a fairly moderate decision and really thought, I think, that abortion was a medical matter and that it should be left to doctors. I think Blackmun, for example, in his files had clipped a poll saying that over 70% of Americans thought that abortion should be a decision between a woman and her doctor. I really don’t think the justices anticipated there being anything like the backlash and the controversy that really ensued after the decision.

Joanne Freeman: How does that controversy begin to build, and what impact does that begin to gradually have on Roe v. Wade?

Mary Ziegler: Well, I think probably the most important thing to note here was that Roe v. Wade came in the middle of a controversy. It didn’t really start a controversy. So by the time you got to the early 1970s you had a very organized anti-abortion movement. It wasn’t particularly a nationally organized movement, but there were a lot of very effective state organizations that were quite powerful. Just to give a particularly striking example, New York was one of very few states before Roe that had repealed all of its abortion restrictions. But anti-abortion forces in New York were so well-organized that they managed to convince the legislature to repeal its repeal and to reinstate abortion restrictions.

Mary Ziegler: The only thing that prevented that from happening was when Republican governor, Nelson Rockefeller, vetoed the bill. Both sides were already taking pretty sharply polarized positions on abortion before Roe, so when the Supreme Court intervened, it wasn’t surprising that there was a lot of controversy. Roe did change things because it gave the national anti-abortion movement a push to organize and also gave the national anti-abortion movement a singular goal. Before, a lot of anti-abortion groups had just been fighting on a state-by-state level and didn’t have a single target, if you will, and after Roe they did.

Joanne Freeman: Then how does the gradual chipping away at Roe begin? I mean, I gather that as always this is a federalism issue. So that really begins on a state level?

Mary Ziegler: It does. Well, actually at the beginning, the chipping away was almost like a side job for anti-abortion activists. They initially wanted to amend the Constitution to criminalize all abortions. After a while it became pretty clear though that these laws, the Constitutional amendments, weren’t going very quickly and so these groups instead or in addition began introducing these incremental laws. At first these laws were mostly designed to keep down the abortion rates and limit access to abortion while the Constitutional amendment battle continued.

Mary Ziegler: But over time, after Ronald Reagan was elected and abortion opponents seemed to have control of both houses of Congress, the anti-abortion movement itself was too divided about what strategy to pursue to get an amendment, so nothing actually happened. Abortion opponents needed to come up with another goal. If the whole movement had been organized around this Constitutional amendment, there is a question about what could be done when the Constitutional amendment was off the table. Leading anti-abortion groups proposed that the movement should focus on controlling nominations to the Supreme Court and ensuring that Roe was overturned.

Mary Ziegler: Once that happened, these incremental laws took on much more importance because they were no longer just a way to keep the abortion rate down. They were a part of a strategy to overturn Roe.

Joanne Freeman: Then in 1992, Roe is directly challenged in the case of Planned Parenthood v. Casey. What happens there?

Mary Ziegler: Well, so between 1986 and 1992, many expected the court to overturn Roe because Republicans who had campaigned on the idea of overturning Roe had nominated more than five justices to the US Supreme Court. When Casey came around, many commentators expected the court to overturn Roe. In fact, the pro-choice movement’s entire strategy at the time was predicated on the idea that Roe would be overturned and that they would capitalize on it at the polls, essentially electing a pro-choice president and a pro-choice Congress and maybe passing federal legislation to protect abortion rights.

Mary Ziegler: Casey, of course, defied expectations and many Republican nominees including Anthony Kennedy, Sandra Day O’Connor, and David Souter all voted to preserve what the court called the essential holding of Roe, namely that there was a Constitutional abortion right. But Casey overhauled abortion jurisprudence in other ways. Casey in particular dropped a lot of the language about doctors. It’s very much Casey in opinion about women’s autonomy. There is much more explicit language in Casey about equality for women as well as privacy and autonomy. Casey also adopted a rule of law that was much less protective of abortion arguably than the trimester framework from Roe, called the undue burden test.

Mary Ziegler: Under this test, the state can’t have the purpose or effect of placing a substantial obstacle in the path of a woman seeking abortion. That was pretty vague at the time, but what people noticed was that the court applied this rule to a Pennsylvania statute that was at bar and upheld all but one part of it. So it seemed that many or maybe even most abortion restrictions wouldn’t be unduly burdensome. At least that was the thought right after Casey came down.

Joanne Freeman: It’s interesting because what you’re describing is a sort of balancing act between medical provisions, rights talk, legal strategy, I mean, in a sense, the sorts of things I suppose that have been juggled forever, but there are balance shifts over time. Is that, in a sense, what we’re looking at here?

Mary Ziegler: Mm-hmm (affirmative). The Casey court saw the abortion issue as really being about women’s equality and autonomy on the one hand and the state’s interest in fetal life on the other hand. The reason that Casey gave for undoing the trimester framework was that if the state had an interest in fetal life, Casey thought it applied throughout pregnancy, not just after viability. In Roe, I think you see the court pitching this much more as being about medicine and something that, in large part, courts and legislators and politicians should stay out of. By the time you get to Casey, the court is saying this is very much a kind of profound Constitutional and moral issue where there are important values on each side, like women’s equality and autonomy and the government’s interest in life.

Mary Ziegler: When we talk now about whether the court is going to overturn Roe, we’re not really talking about 1973 Roe, which no longer exists. We’re talking about Roe as it’s been changed and transformed over time by Casey and other opinions.

Joanne Freeman: Along those lines then, obviously one of the reasons we’re having this conversation right now is because we’re looking at so many actions going on now on a state level in which states are passing laws that are deliberately and directly in violation of Roe v. Wade. Obviously a lot of people are looking at that and thinking it’s only a matter of time until that decision is overturned. I wonder, given your knowledge of the background of this, what do you think the future holds for Roe specifically and for abortion rights more generally?

Mary Ziegler: Well, it’s hard to say. I think people who are predicting the demise of Roe have good … I mean, I include myself in that. I think have good reason for making that prediction in part because they’re relying on the fact that The Federalist Society, which is the conservative group that helps select judicial nominees for Republican presidents, has done so with the goal of overturning Roe. Now, that was true of course in the ’80s when Justice Kennedy and O’Connor were picked as well, and it didn’t work. But if I had to put my money on it, I would put my money on The Federalist Society getting it right.

Mary Ziegler: I think the only reason there’s uncertainty is because this is such a political matter, you can have justices who both as a matter of ideological priors and jurisprudential philosophy don’t think Roe was rightly decided who are reluctant to actually be the deciding vote to undo the decision because of concerns about what that’ll mean for the court’s reputation or the political controversy surrounding the court. If there is going to be a decision overturning Roe, if you look at the history you would think that it would be much more likely to be the kind of incremental strategy that will deliver that and not the more flashy stringent bills we’ve seen in the news lately banning abortion, for example, at six weeks or at fertilization.

Joanne Freeman: Now, we’ve been talking on a high level, but I actually also am curious about one additional fact. What, in the end, happens with Norma McCorvey after the ruling?

Mary Ziegler: Well, Norma McCorvey interestingly sort of undergoes almost a conversion experience. Roe, I think, in some ways ends up not really being that important from the standpoint of her pregnancy. She wasn’t actually pregnant any more. She wound up giving birth to that child. She had been in a lesbian relationship for some time. But then in the 1990s, underwent a conversion to Christianity, began expressing remorse for her part in Roe v. Wade, and began working in the pro-life movement, particularly with the group, Operation Rescue, which led clinic blockades in the 1990s.

Mary Ziegler: She became a fairly prominent member of the anti-abortion movement. She actually sought in the mid-2000s to file a case to overturn Roe v. Wade on the basis that there was evidence that the procedure hurt women. She still continued participating in anti-abortion rallies until her death in 2017.

Joanne Freeman: Wow. Wow. Wow. Okay. I almost don’t know what to say to that. It’s almost like the final example of the complexity of this issue is the person at the center of it shifting like that.

Mary Ziegler: There are lots of figures like that. Just recently in the New York Times on May 30th, Rob Schenck, who was a prominent member of Operation Rescue and an evangelical minister, wrote on op-ed in the New York Times arguing that overturning Roe would be not pro-life and that he had been wrong about his earlier views. So these kinds of conversion stories are not that uncommon and they do, I think, drive home how complicated the issue is.

Joanne Freeman: Mary Ziegler teaches law at Florida State University. Her most recent book is Beyond Abortion: Roe v. Wade and the Fight for Privacy.

Nathan Connolly: As Mary mentioned just there, challenges to the Roe v. Wade ruling started almost immediately, but so too did Ms. Magazine’s defense of it.

Kathy Spillar: In fact, in 1973 shortly after the Roe v. Wade decision, Ms. Magazine ran a full-page photograph of a woman who on a hotel room floor had bled out from a self-induced abortion and was found by the police. It was actually a photograph taken by the police as part of their investigation. They ran this very graphic photo of a woman who had died because she had sought an illegal abortion, a self-induced abortion, with the headline, Never Again. I think that caught the spirit of that moment when Roe v. Wade was decided and when women all across the country now had access to safe abortion care.

Nathan Connolly: In 2006, Ms. Magazine published an updated version of its We Had an Abortion petition that included the signatures of some 5000 women. In the wake of the controversial laws in states like Alabama and Missouri, women had taken to social media using hashtags like youknowme, to share their own experiences with abortion.

Nathan Connolly: We ended our conversation with Kathy by asking why it’s still so important for so many women to put a personal face on such a charged issue.

Kathy Spillar: I think the most important reason is that people understand how common a medical procedure this is today and how you know someone who’s had an abortion. It’s about still I think about one in three women will have an abortion some time in their lifetime. The more that people understand that this is a very common medical procedure, a safe procedure, I think is very critically important. The other thing that women are saying as they are signing these petitions and posting on Facebook and Instagram is that we’re not going to go back. Women are simply not going to go back.

Kathy Spillar: They are not going to endanger their lives again as women did commonly before 1973. I’ve never seen such activism across the country among women of all ages, women who are in their 70s and 80s and who remember what it was like when abortion was illegal and inaccessible, and young women and pre-teenagers who understand the importance of having control over your body. That’s an intergenerational fight that is ongoing and with great energy and purpose and determination. Women simply are not going to go back.

Nathan Connolly: That’s Kathy Spillar. She’s the executive editor of Ms. Magazine and the executive director of the Feminist Majority Foundation.