Abortion rights in the US (part 1)

Image: Lorie Shaull from St Paul, United States, CC BY-SA 2.0, via Wikimedia Commons

A brief overview of Roe v. Wade

by Zefferin LLamas

How did it start?

During the 1950s and 1960s, marginalized groups were inspired by the progress being made by the Civil Rights movement to secure African American civil liberties that were once only available to white, heterosexual, cisgendered men. During that time, female-bodied people did not have the right to use contraception or get abortions.

The collective consciousness of US society was evolving and people began to realize that a government limiting a person’s bodily autonomy (by prohibiting access to contraception or abortion, for example) was a violation of a person’s basic civil rights. People were like, “hold on, the government does not have the right to control my body or to infringe on my reproductive health.”

How decisions are made when there is a problem

If a certain issue is not explicitly addressed in the US Constitution, then sometimes a decision will have to be made by the highest court in the country, the Supreme Court, which is composed of nine members. Five is the magic number; if five of the nine judges agree with the solution to the issue (following a trial), then they will issue a ruling, which then becomes law.

“Jane Roe”

In 1970, “Jane Roe” (pseudonym for Norma McCorvey) wanted to get an abortion in Texas. She was denied, and so decided to sue the state. In Texas at the time, abortion was prohibited absolutely, no exceptions were made, not even for cases of rape or incest.

At the same time, other similar cases of women being denied access to abortion around the country were being brought to high courts. In 1971, Jane Roe’s case went to the Supreme Court but was unsuccessful.

Roe’s Big Break – the Right to Privacy

Before 1965, contraceptives (birth control) were illegal in many US states. A Supreme Court case called “Griswold v. Connecticut,” resulted in a ruling that stated that the US Constitution protected the freedom of married couples to buy and use contraceptives without government interference. This was considered a “right to privacy.”

Then, in March of 1972, the Supreme Court issued a ruling in the court case “Eisenstadt v. Baird,” which stated that the US Constitution also protects the freedom of single women to access birth control. So, single people were now also guaranteed a “right to privacy”. This would be the key to Roe’s victory.

Roe wins and abortion becomes legal … technically

Roe’s case was allowed before the Supreme Court for a second time in October of 1972, and this allowed Roe to argue that the same right to privacy that allows for a single woman to access contraception should also extend to abortion.

The privacy argument was used together with the 5th and 14th amendments, which both include language in their due process clauses that state that nobody shall be “deprived of life, liberty or property without due process of law.”

The case was won in favor of Roe and abortion became legal on a federal level during the first three months of pregnancy (the first trimester). However, states were still empowered to put limits on access to abortion.

So, what’s the problem now?

1. States can and do restrict abortion access. Some states to this day only have one location where abortions are performed, so although it is technically legal, abortions have remained difficult to access in many places across the country. Some states require waiting periods and other restrictions (like spousal notices and parental notices for teens) that are designed to prolong the process into the second trimester, which means that the abortion is no longer legal. Most negatively affected are people who cannot access these services, namely people of color, low-income people, and teenagers.

2. Roe was won based on a broad and general argument that stated that all people are guaranteed a right to privacy. But this question itself is controversial. Is privacy a fundamental right? If you’ve been living in the USA during the past 10 years, you know that the government infringes on the privacy of citizens literally every day.

3. Roe was not won on the idea that people have a right to bodily autonomy or reproductive freedoms. The right to privacy argument has allowed for the case to be challenged over the years. It almost was overturned in 1992 (Planned Parenthood v. Casey), and now again in 2022 (pending a decision on Dobbs v. Jackson Women’s Health Organization).