This paper traces the history of Roe v. Wade from its origins as a challenge to a pre-Civil War Texas anti-abortion statute through the U.S. Supreme Court's landmark 1973 ruling. It examines the role of attorneys Sarah Weddington and Linda Coffee, the progression of the case through the Texas courts, and the constitutional arguments grounded in privacy and the Ninth Amendment. The paper also explores how the decision transformed American politics, energized single-issue candidacies, and created an enduring cycle of legislative challenges at state and federal levels — challenges that continue to define the abortion debate decades after the original ruling.
Roe v. Wade is probably the most recognized of all U.S. Supreme Court rulings of the twentieth century. Yet few people are fully aware of the facts that precipitate its history and evolution. The case was demonstrative of a broader trend to develop litigation as a tool for social change — a trend that followed Brown v. Board of Education in 1954 (Rubin, 1987, pp. 1–2). Like all Supreme Court rulings, Roe v. Wade was required to pass through all lower courts in conjunction with the source of the law or constitutional question raised. This means that the case began at the U.S. District Court in Texas, where two enterprising attorneys sought to challenge the pre-Civil War Texas law making abortion illegal in every case, with the only exception being the imminent death of the mother.
During the early 1970s, Texas women played key roles in this landmark case. Sarah Weddington and Linda Coffee, two Dallas lawyers, filed a legal action in March 1970 on behalf of "Jane Roe" and all other women "who were or might become pregnant and want to consider all options" (Campbell, 2003, p. 440). The case challenged a Texas statute that made all abortions illegal except those necessary to save the life of the pregnant woman.
Weddington, prompted by memories of her own experience "as a scared graduate student in 1967 in a dirty, dusty Mexican border town to have an abortion," argued the case twice before the U.S. Supreme Court, which ruled in January 1973 that the Texas law violated a woman's constitutional right to privacy. The decision in Roe v. Wade proved to be more of an opening gun than a final victory in the battle for reproductive freedom. Anti-abortion forces subsequently persuaded legislators to prohibit abortion in the third trimester of pregnancy, and "right to life" conservatives continued to insist that the Supreme Court would overturn the decision in the near future. Nevertheless, the ruling symbolized greater control for women over their own lives (Campbell, 2003, p. 440).
The initial ruling by the Texas District Court was limited. The court did find in favor of the plaintiff (Roe) on grounds of the Ninth Amendment — which holds that individual states cannot usurp rights not specifically addressed in the U.S. Constitution — but refused to provide the injunction that would have stopped Henry Wade, the local District Attorney, from enforcing the earlier Texas statute.
Roe v. Wade then moved forward to the Texas Supreme Court, where the district court's decision was again upheld and a partial victory was achieved, yet no injunction was ordered. The case was subsequently presented to the U.S. Supreme Court, partly at the behest of a flood of newly formed organizations and legal challenges regarding the abortion question. When the Court was inundated with requests to hear cases challenging state laws criminalizing abortion, the justices selected the case with the greatest litigious merit as a challenge to individual rights — and the Texas case, Roe v. Wade, was chosen.
A notable analysis by Conway and Butler demonstrates that prior to Roe v. Wade, individual states had the express right to restrict or support abortion availability. Their work uses prior abortion legislation at the state level to assess whether a given state would or would not restrict abortion if Roe were overturned:
"Prior to the 1973 Roe v. Wade ruling, each state could choose whether to restrict the availability of abortions just as it could choose to regulate the availability or total amount of any publicly provided good. In this paper we extend the theory of public goods and collective decision-making to abortion legislation. Abortion legislation is treated as a publicly provided good that results from the collective decision-making of the electorate. The median voter theorem then provides a convenient framework in which to identify the determinants of abortion legislation. Using state-level data prior to Roe v. Wade, we estimate the public demand for abortion legislation and predict the likely outcome for each state if Roe v. Wade is overturned. Our predictions should remain relevant even if it is not overturned, inasmuch as the Supreme Court's decision in Webster v. Reproductive Services (1989) upheld states' rights to regulate or restrict the availability of abortion." (Conway & Butler, 1992, p. 609)
The most fascinating aspect of this example is the sheer volume of conjecture and research devoted to this single issue, simply because Roe was upheld in favor of the plaintiff. The issue has been one of divisive uncertainty since Roe emerged in 1969 and will likely continue to be so for decades to come.
Later organizers argue that the rapid manner in which the ruling was achieved — a period of fewer than four years — created more conflict than the Supreme Court ruling resolved. Much of the organizational infrastructure and public consensus needed to sustain the law was still in its infancy and had not yet won the court of public opinion (Rubin, 1987, p. 4). The issue of abortion, ruled by the U.S. Supreme Court to be a matter of a woman's constitutional right to privacy, became a defining issue for many individuals, policies, and organizations — and continues today to be a divisive social and political concern.
Karen Mulhauser, director of the National Abortion Rights Action League (NARAL), expressed the view that "had we made more gains through the legislative and referendum processes, and taken a little longer at it, the public would have moved with us" (Rubin, 1987, p. 5).
"Party platforms, lobbying, and single-issue candidacies"
The ensuing demonstration of change in legal form is one of the best examples of the way in which the evolving, almost living, legal and legislative system in the United States works. Each subsequent challenge must follow the line of the original legal standing in Roe to either further restrict or unequivocally uphold the ruling. Yet the corresponding changes in political form are troubling for many who see abortion legislation and platform development as a distraction from the vast range of other issues essential to governing at the local, regional, and national levels.
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