roe v wade essay topics

Roe v Wade - Free Essay Samples And Topic Ideas

If you are looking to write an argumentative essay about the controversial topic of abortion in the USA, Roe V Wade is a crucial landmark case to examine. To help you get started, our team of experts has compiled a list of free persuasive essays on Roe V Wade that can serve as valuable resources.

Roe V Wade, a 1973 Supreme Court case, affirmed a woman’s right to a voluntary pregnancy termination in the United States. The decision caused intense debate, with arguments from both sides about whether it was right or wrong. If you are interested in exploring this topic further, there are many essay topics and research questions about Roe V Wade that you can delve into.

Before writing your own research paper on this topic, it is essential to develop a strong thesis statement and essay outline. The introduction of your essay should provide background information on the case and a clear statement of your argument. In the conclusion, summarize your main points and make sure to reinforce your thesis.

Our collection of Roe V Wade argumentative essay examples can help you better understand the issues at play, including abortion laws, and how to construct compelling reasoning. By studying these essays, you can gain insights into how to effectively structure your own essay, identify key arguments, and develop a persuasive writing style.

History, Methods and Side Effects of Abortion after Case Roe V Wade

Abortion has been around for many years, but it was only 43 years ago when it was made legal. Abortion is the process by which an unborn child is removed from the mother's uterus, a procedure that results in the death of the child. People take many sides when it comes to this sensitive subject. Some believe that it is wrong and cruel, while others regard it as humane. In this essay, I will discuss the history of abortion, the […]

The Affects of Legalized Abortion on High School Graduation Rates

The legalization of terminating a pregnancy in the United Sates has been one of the greatest and most controversial debates in history starting as early as the 1900s. Decriminalizing abortion was thought to affect many aspects of our society; one of the main aspects being our economy through the increase of high school graduates. High school drop out rates have proven to be directly connected to the legalization of abortion as many teens choose to drop out of school to […]

Abortion should not be Legalized: Examining Ethical and Social Concerns

Abortion is ending a pregnancy so that one may not have a child if they choose not to. Dated way back, abortion has always existed, and people's views on it started to form after the Supreme Court case of Roe vs. Wade in 1973. Pro-Choice vs. Pro-Life Perspectives These two views are pro-choice and pro-life. Pro-choice believe that choosing abortion is a woman's right that shouldn't be limited by governmental or religious authorities, and that there should be a safe […]

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Reflections on Abortions after Roe V. Wade

The increasing uncertainty of what can and cannot be said within a professional setting is something that has confounded me many times throughout my limited time in the workforce. As a member of the National Forensics League, it is easy for me to consider the advantages of individuals "sometimes sacrificing their own voice" in favor of giving way to others to avoid what is socially seen as "civil discourse" (Davenport-Sypher). Obviously, it would be easier to assert ourselves if everyone […]

Abortion as a Crime: Ethical Considerations and the Need for Safe Access

Based on the ethical frameworks discussed in class, assigned essays, and 'The Last Abortion Clinic', I believe abortion is permissible. I agree with the statement, 'termination is permissible up to 23 weeks or unviability outside the womb.' Abortion may be necessary for health and social purposes or as the result of crime, such as rape and incest. Justifications for Permissible Abortion To begin, if a woman requests an abortion as a result of a crime such as rape or incest, […]

Revisiting the Legal Milestone: Roe V. Wade from a Fresh Perspective

In the annals of American legal history, few cases have left as indelible a mark as Roe v. Wade. This landmark decision, rendered by the United States Supreme Court in 1973, has sparked enduring debates and reshaped the discourse surrounding reproductive rights in the country. Delving into the intricacies of Roe v. Wade unveils a rich tapestry of legal principles, societal values, and political dynamics that continue to influence contemporary jurisprudence. At its core, Roe v. Wade grappled with the […]

The Evolution of Reproductive Rights: Analyzing Roe V. Wade in Contemporary Context

In the intricate tapestry of human history, the story of reproductive rights unfurls as a dynamic saga of struggle and progress, woven with threads of autonomy, dignity, and equality. Central to this narrative is the pivotal Supreme Court ruling of Roe v. Wade, a legal landmark that reshaped the contours of reproductive rights in the United States. Rendered in 1973, Roe v. Wade heralded a watershed moment, affirming a woman's constitutional right to privacy and effectively legalizing abortion nationwide. Yet, […]

Roe V. Wade: a Landmark Decision and its Impact on American Society

In the intricate mosaic of American legal history, Roe v. Wade stands as a bold stroke of judicial brushwork that forever altered the canvas of reproductive rights. Delivered by the United States Supreme Court in 1973, this groundbreaking decision splashed vibrant hues of controversy and progress onto the societal tableau, leaving an indelible mark on the fabric of American society. Before Roe v. Wade, the landscape of abortion rights resembled a patchwork quilt of conflicting state laws, leaving women's access […]

The Evolving Landscape of Roe V. Wade: Challenges and Prospects

As the political and judicial landscapes of the United States continue to shift, the future of Roe v. Wade, the landmark Supreme Court decision that established a woman's constitutional right to choose an abortion, stands at a critical juncture. This pivotal ruling, which has been a cornerstone of reproductive rights for nearly five decades, faces unprecedented challenges and scrutiny in today's increasingly polarized environment. The composition of the Supreme Court, with recent appointments tilting the balance towards a more conservative […]

Roe V. Wade: Shaping the Conversation on Privacy and Choice

In 1973, the pronouncement rendered by the Supreme Court in Roe v. Wade constituted a pivotal moment in American jurisprudence, transcending mere abortion adjudication to redefine societal conceptions of privacy, autonomy, and the boundaries of governmental authority. Penned by Justice Harry Blackmun, the decree represented a resolute affirmation of women's entitlements, rooted in the constitutional safeguard of privacy enshrined within the Fourteenth Amendment. This judicial decree was not a spontaneous event; rather, it marked the culmination of protracted deliberations, protests, […]

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Roe v. Wade

By: History.com Editors

Updated: April 21, 2023 | Original: March 27, 2018

Roe v. Wade was a landmark legal decision issued on January 22, 1973, in which the U.S. Supreme Court struck down a Texas statute banning abortion, effectively legalizing the procedure across the United States. The court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment to the Constitution . Prior to Roe v. Wade , abortion had been illegal throughout much of the country since the late 19th century. Since the 1973 ruling, many states imposed restrictions on abortion rights. The Supreme Court overturned Roe v. Wade  on June 24, 2022, holding that there was no longer a federal constitutional right to an abortion.

Abortion Before Roe v. Wade

Until the late 19th century, abortion was legal in the United States before “quickening,” the point at which a woman could first feel movements of the fetus, typically around the fourth month of pregnancy.

Some of the early regulations related to abortion were enacted in the 1820s and 1830s and dealt with the sale of dangerous drugs that women used to induce abortions. Despite these regulations and the fact that the drugs sometimes proved fatal to women, they continued to be advertised and sold.

In the late 1850s, the newly established American Medical Association began calling for the criminalization of abortion, partly in an effort to eliminate doctors’ competitors such as midwives and homeopaths.

Additionally, some nativists, alarmed by the country’s growing population of immigrants, were anti-abortion because they feared declining birth rates among white, American-born, Protestant women.

In 1869, the Catholic Church banned abortion at any stage of pregnancy, while in 1873, Congress passed the Comstock law, which made it illegal to distribute contraceptives and abortion-inducing drugs through the U.S. mail. By the 1880s, abortion was outlawed across most of the country.

During the 1960s, during the women’s rights movement, court cases involving contraceptives laid the groundwork for Roe v. Wade .

In 1965, the U.S. Supreme Court struck down a law banning the distribution of birth control to married couples, ruling that the law violated their implied right to privacy under the U.S. Constitution . And in 1972, the Supreme Court struck down a law prohibiting the distribution of contraceptives to unmarried adults.

Meanwhile, in 1970, Hawaii became the first state to legalize abortion, although the law only applied to the state’s residents. That same year, New York legalized abortion, with no residency requirement. By the time of Roe v. Wade in 1973, abortion was also legally available in Alaska and Washington .

In 1969, Norma McCorvey, a Texas woman in her early 20s, sought to terminate an unwanted pregnancy. McCorvey, who had grown up in difficult, impoverished circumstances, previously had given birth twice and given up both children for adoption. At the time of McCorvey’s pregnancy in 1969 abortion was legal in Texas—but only for the purpose of saving a woman’s life.

While American women with the financial means could obtain abortions by traveling to other countries where the procedure was safe and legal, or pay a large fee to a U.S. doctor willing to secretly perform an abortion, those options were out of reach to McCorvey and many other women.

As a result, some women resorted to illegal, dangerous, “back-alley” abortions or self-induced abortions. In the 1950s and 1960s, the estimated number of illegal abortions in the United States ranged from 200,000 to 1.2 million per year, according to the Guttmacher Institute.

After trying unsuccessfully to get an illegal abortion, McCorvey was referred to Texas attorneys Linda Coffee and Sarah Weddington, who were interested in challenging anti-abortion laws.

In court documents, McCorvey became known as “Jane Roe.”

In 1970, the attorneys filed a lawsuit on behalf of McCorvey and all the other women “who were or might become pregnant and want to consider all options,” against Henry Wade, the district attorney of Dallas County, where McCorvey lived.

Earlier, in 1964, Wade was in the national spotlight when he prosecuted Jack Ruby , who killed Lee Harvey Oswald , the alleged assassin of President John F. Kennedy .

Supreme Court Ruling

In June 1970, a Texas district court ruled that the state’s abortion ban was illegal because it violated a constitutional right to privacy. Afterward, Wade declared he’d continue to prosecute doctors who performed abortions.

The case eventually was appealed to the U.S. Supreme Court. Meanwhile, McCovey gave birth and put the child up for adoption.

On Jan 22, 1973, the Supreme Court, in a 7-2 decision, struck down the Texas law banning abortion, effectively legalizing the procedure nationwide. In a majority opinion written by Justice Harry Blackmun , the court declared that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment .

The court divided pregnancy into three trimesters, and declared that the choice to end a pregnancy in the first trimester was solely up to the woman. In the second trimester, the government could regulate abortion, although not ban it, in order to protect the mother’s health.

In the third trimester, the state could prohibit abortion to protect a fetus that could survive on its own outside the womb, except when a woman’s health was in danger.

5 Historic Supreme Court Rulings Based on the 14th Amendment

The 14th Amendment's guarantee to "due process" provided a basis for these five Supreme Court rulings that have impacted Americans' lives.

Reproductive Rights in the US: Timeline

Since the early 1800s, U.S. federal and state governments have taken steps both securing and limiting access to contraception and abortion.

Ruth Bader Ginsburg’s Landmark Opinions on Women’s Rights

The Supreme Court Justice was the second woman to hold the role—and battled gender discrimination since the 1970s.

Legacy of Roe v. Wade

Norma McCorvey maintained a low profile following the court’s decision, but in the 1980s she was active in the abortion rights movement.

However, in the mid-1990s, after becoming friends with the head of an anti-abortion group and converting to Catholicism, she turned into a vocal opponent of the procedure.

Since Roe v. Wade , many states imposed restrictions that weaken abortion rights, and Americans remain divided over support for a woman’s right to choose an abortion.

In 1992, litigation against Pennsylvania’s Abortion Control Act reached the Supreme Court in a case called Planned Parenthood of Southeastern Pennsylvania v. Casey . The court upheld the central ruling in Roe v. Wade but allowed states to pass more abortion restrictions as long as they did not pose an “undue burden."

Roe v. Wade Overturned

In 2022, the nation's highest court deliberated on Dobbs v. Jackson Women’s Health Organization , which regarded the constitutionality of a Mississippi law banning most abortions after 15 weeks of pregnancy. Lower courts had ruled the law was unconstitutional under Roe v. Wade . Under Roe , states had been prohibited from banning abortions before around 23 weeks—when a fetus is considered able to survive outside a woman's womb.

In its decision , the Supreme Court ruled 6-3 in favor of Mississippi's law—and overturned Roe after its nearly 50 years as precedent.

Abortion in American History. The Atlantic . High Court Rules Abortion Legal in First 3 Months. The New York Times . Norma McCorvey. The Washington Post . Sarah Weddington. Time . When Abortion Was a Crime , Leslie J. Reagan. University of California Press .

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Home — Essay Samples — Law, Crime & Punishment — Legal Cases — Roe V Wade

Essays on Roe V Wade

Roe v. wade essay topics and outline examples, essay title 1: roe v. wade and the shaping of reproductive rights in america.

Thesis Statement: The landmark Supreme Court case of Roe v. Wade in 1973 not only established a woman's constitutional right to abortion but also ignited a decades-long debate over reproductive rights, privacy, and the role of government in personal decisions.

• Introduction
• The Historical Context of Abortion Laws in America
• Key Arguments and Legal Implications of Roe v. Wade
• Impact on Women's Rights and Healthcare Access
• The Ongoing Debate: Pro-Choice vs. Pro-Life Movements

Essay Title 2: The Evolution of Roe v. Wade: Legal Challenges and Implications

Thesis Statement: Since its landmark ruling, Roe v. Wade has faced numerous legal challenges and adaptations, resulting in a complex legal landscape that continues to shape abortion rights and access in the United States.

• Subsequent Supreme Court Cases and Rulings
• State-Level Legislation and Restrictions
• Impact on Women's Healthcare Clinics and Access
• Legal Strategies and Advocacy on Both Sides of the Debate

Essay Title 3: Reproductive Rights and Social Justice: Examining the Broader Implications of Roe v. Wade

Thesis Statement: Beyond the legal aspects, Roe v. Wade has significant implications for social justice, equality, and the intersection of reproductive rights with issues such as poverty, healthcare disparities, and women's autonomy.

• Roe v. Wade as a Catalyst for Feminist Movements
• Reproductive Justice: The Intersection of Race, Class, and Gender
• Access to Safe and Affordable Healthcare Services
• The Broader Social and Political Implications

What Would Happen if Roe V. Wade Case Get Overturned

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The Role of The American Women’s Health Movement and Roe V. Wade Case in Modern Day Women’s Fight for Reproductive Rights

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Roe V Wade: Abortion Laws Impact on Youth

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The Controversy: Should Roe V. Wade Be Overturned

Roe wade: impact on reproductive rights, autonomy, viability, and moral perspectives and abortion rights, the roe v wade case, relevant topics.

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Equality Arguments for Abortion Rights

Introduction.

Roe v. Wade grounds constitutional protections for women’s decision wheth­er to end a pregnancy in the Due Process Clauses. 1   But in the four decades since Roe , the U.S. Supreme Court has come to recognize the abortion right as an equality right as well as a liberty right.  In this Essay, we describe some distinctive features of equality arguments for abortion rights.  We then show how, over time, the Court and individual Justices have begun to employ equal­ity arguments in analyzing the constitutionality of abortion restrictions.  These arguments first appear inside of substantive due process case law, and then as claims on the Equal Protection Clause.  Finally, we explain why there may be inde­­­pendent political significance in grounding abortion rights in equality values.

Before proceeding, we offer two important caveats.  First, in this brief Essay we discuss equality arguments that Supreme Court justices have recognized—not arguments that social movement activists made in the years before Roe , that academics made in their wake, or that ordinary Americans might have made then or might make now.  Second, we address, separately, arguments based on the Due Process Clauses and the Equal Protection Clause.  In most respects but one, 2 however, we emphasize that a constitutional interpreter’s attention to the social organization of reproduction could play a more important role in de­termining the permissibility of various abortion-restrictive regulations than the particular constitutional clause on which an argument is based.

I. Equality Arguments for Abortion Rights

Equality arguments are also concerned about the gendered impact of abortion restrictions.  Sex equality arguments observe that abortion restrictions deprive women of control over the timing of motherhood and so predictably exacerbate the inequalities in educational, economic, and political life engen­dered by childbearing and childrearing.  Sex equality arguments ask whether, in protecting unborn life, the state has taken steps to ameliorate the effects of compelled motherhood on women, or whether the state has proceeded with indifference to the impact of its actions on women. 5   Liberty arguments focus less on these gendered biases and burdens on women.

To be clear, equality arguments do not suppose that restrictions on abor­tio­n are only about women.  Rather, equality arguments are premised on the view that restrictions on abortion may be about both women and the unborn— both and .  Instead of assuming that restrictions on abortion are entirely benign or entirely invidious, equality analysis entertains the possibility that gender stereotypes may shape how the state pursues otherwise benign ends.  The state may protect unborn life in ways it would not, but for stereotypical assumptions about women’s sexual or maternal roles.

For example, the state’s bona fide interest in protecting potential life does not suffice to explain the traditional form of criminal abortion statutes in America.  Such statutes impose the entire burden of coerced childbirth on preg­­nant women and provide little or no material support for new mothers.  In this way, abortion restrictions reflect views about how it is “natural” and appropriate for a woman to respond to a pregnancy.  If abortion restrictions were not prem­ised on these views, legislatures that sought to coerce childbirth in the name of protecting life would bend over backwards to provide material support for the wo­men who are required to bear—too often alone—the awesome physical, emotional, and financial costs of pregnancy, childbirth, and childrearing. 6   Only by viewing pregnancy and motherhood as a part of the natural order can a leg­islature dismiss these costs as modest in size and private in nature.  Nothing about a desire to protect fetal life compels or commends this state of affairs.  When abortion restrictions reflect or enforce traditional sex-role stereotypes, equality arguments insist that such restrictions are suspect and may violate the U.S. Constitution.

II. Equality Arguments in Legal Doctrine

While Roe locates the abortion right in the Due Process Clauses, the Supreme Court has since come to conceive of it as an equality right as well as a liberty right.  The Court’s case law now recognizes equality arguments for the abortion right based on the Due Process Clauses.  Additionally, a growing num­ber of justices have asserted equality arguments for the abortion right inde­pendently based on the Equal Protection Clause.

A. Equality Arguments for Abortion Rights and the Due Process Clauses

The Court has also invoked equality concerns to make sense of the Due Process Clauses in the area of abortion rights.  The opinion of the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey 11 is shaped to a sub­stantial degree by equality values.  At the very moment in Casey when the Court reaffirms constitutional protection for abortion rights, the Court ex­plains that a pregnant woman’s “suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture.” 12   This emphasis on the role autonomy of the pregnant woman reflects the in­fluence of the equal protection sex discrimination cases, which prohibit the government from en­forcing stereotypical roles on women.  Likewise, in the stare decisis passages of Casey , the Court emphasizes, as a reason to reaffirm Roe , that “[t]he ability of women to participate equally in the economic and so­cial life of the Nation has been facilitated by their ability to control their re­productive lives.” 13   Here, as elsewhere in Casey , the Court is interpreting the Due Process Clause and draw­ing on equality values in order to make sense of the substance of the right.

The equality reasoning threading through Casey is not mere surplusage.  Equality values help to identify the kinds of restrictions on abortion that are unconstitutional under Casey ’s undue burden test.  As the joint opinion applies the test, abortion restrictions that deny women’s equality impose an undue burden on women’s fundamental right to decide whether to become a mother.  Thus, the Casey Court upheld a twenty-four-hour waiting period, but struck down a spousal notification provision that was eerily reminiscent of the com­mon law’s enforcement of a hierarchical relationship between husband and wife.  Just as the law of coverture gave husbands absolute dominion over their wives, so “[a] State may not give to a man the kind of dominion over his wife that parents exercise over their children.” 14   An equality-informed understanding of Casey ’s undue burden test prohibits government from coercing, manipulating, misleading, or stereotyping pregnant women.

B. Equality Arguments for Abortion Rights and the Equal Protection Clause

In Carhart , Justice Ginsburg invoked equal protection cases—including Virginia —to counter woman-protective arguments for restricting access to abortion, which appear in the majority opinion.  Woman-protective arguments are premised on certain judgments about women’s nature and decisional com­petence. 22 But the equal protection precedents that Justice Ginsburg cited are responsive both to woman-protective and to fetal-protective anti-abortion ar­guments.  As Justice Blackmun’s Casey opinion illustrates, equality arguments are concerned that gender assumptions shape abortion restrictions, even when genuine concern about fetal life is present.

C. What About Geduldig ?

Equality arguments complement liberty arguments, and are likely to travel together.  There is therefore little reason to reach the abstract question of wheth­er, if Roe and Casey were overruled, courts applying existing equal protection doc­trine would accord constitutional protection to decisions concerning abortion .

Proponents of equality arguments have long regarded the state’s reg­ulation of pregnant women as suspect—as potentially involving problems of sex-role stereotyping.  But in one of its early equal protection sex discrimination decisions, the Court reasoned about the regulation of pregnancy in ways not necessarily consistent with this view.  In Geduldig , the Court upheld a California law that provided workers comprehensive disability insurance for all tempo­rarily disabling conditions that might prevent them from working, except preg­nancy.  According to the conventional reading of Geduldig , the Court held categorically that the regulation of pregnancy is never sex based, so that such reg­ulation warrants very deferential scrutiny from the courts.

The conventional wisdom about Geduldig , however, is incorrect.  The Geduldig Court did not hold that governmental regulation of pregnancy never qualifies as a sex classification.  Rather, the Geduldig Court held that governmen­tal regulation of pregnancy does not always qualify as a sex classification. 24   The Court acknowledged that “distinctions involving pregnancy” might inflict “an invidious discrimination against the members of one sex or the other.” 25   This reference to invidiousness by the Geduldig Court is best understood in the same way that Wendy Williams’s brief in Geduldig used the term “invidious”—namely, as referring to traditional sex-role stereotypes. 26   Particularly in light of the Court’s recognition in Nevada Department of Human Resources v. Hibbs 27 that pregnant women are routinely subject to sex-role stereotyping, 28 Geduldig should be read to say what it actually says, not what most commentators and courts have assumed it to say.

Geduldig was decided at the dawn of the Court’s sex discrimination case law and at the dawn of the Court’s modern substantive due process jurispru­dence.  The risk of traditional sex-role stereotyping and stereotyping around preg­­nancy was developed more fully in later cases, including in twenty-five years of litigation over the Pregnancy Discrimination Act. 29   This explains why, when Hibbs was decided in 2003, the Court could reason about pregnancy in ways that the Geduldig Court contemplated in theory but could not register in fact.

III. The Political Authority of the Equal Protection Clause

We have thus far considered the distinctive concerns and grounds of equal­­ity arguments, which enable them to complement liberty arguments for abor­tion rights.  We close by considering some distinctive forms of political authority that equality arguments confer.

Some critics pejoratively refer to certain of the Court’s Due Process deci­sions as recognizing “unenumerated” constitutional rights.  Although there are two Due Process Clauses in the Constitution, these interpreters regard decisions like Roe , Casey , and Lawrence , which recognize substantive rather than pro­cedural due process rights, as lacking a basis in the text of the Constitution, hence as recognizing “unenumerated rights.”

The pejorative “unenumerated rights” is often deployed against Roe and Lawrence in an ad hoc manner, without clarification of whether the critic of unenumerated rights is prepared to abandon all bodies of law that have similar roots or structure.  For example, those who use the objection from unenu­merated rights to attack Roe and Lawrence generally assume that the First Amendment limits state governments; but of course, incorporation of the Bill of Rights against the states is also a feature of the Court’s substantive due process doctrine. 30   Other “unenumerated rights” to which most critics of Roe and Lawrence are committed include the applicability of equal protection prin­ciples to the conduct of the federal government. 31   And this view cannot readily distinguish other “unenumerated” rights of unquestioned authority, such as the rights to travel (or not), 32 marry (or not), 33 procreate (or not), 34 and use contra­ceptives (or not). 35   At their Supreme Court confirmation hearings, Chief Justice Roberts and Justice Alito learned from the experience of Judge Robert Bork by swearing allegiance to Griswold .

But even if the pejorative term “unenumerated” is deployed selectively and inconsistently, it has frequently been deployed in such a way as to affect popular perceptions of Roe ’s authority.  Accordingly, in light of criticism of the abortion right as “unenumerated,” it is worth asking whether grounding the right in the Equal Protection Clause, as well as the Due Process Clauses, can enhance the political authority of the right.

Adding claims on the Equal Protection Clause to the due process basis for abortion rights can strengthen the case for those rights in constitutional politics as well as constitutional law.  The Equal Protection Clause is a widely ven­erated constitutional text to which Americans across the political spectrum have long laid claim.  And crucially, once the Supreme Court recognizes that people have a right to engage in certain conduct by virtue of equal citizenship, Americans do not count stripping them of this right as an increase in con­sti­tutional legitimacy.  We cannot think of a precedent for this dynamic.  And so: If the Court were to recognize the abortion right as an equality right, a future Court might be less likely to take this right away.

This understanding has increasingly come to shape constitutional law.  We have documented the Supreme Court’s equality-informed understanding of the Due Process Clause in Lawrence and Casey .  We have also identified the grow­ing number of justices who view the Equal Protection Clause as an inde­pendent source of authority for abortion rights.  We view this reading of the substantive due process and equal protection cases as contributing to a synthetic understanding of the constitutional basis of the abortion right—as grounded in both liberty and equality values.  For a variety of reasons this Essay has ex­plored, the synthetic reading leaves abortions right on stronger legal and po­litical footing than a liberty analysis alone.

• Roe v. Wade, 410 U.S. 113 (1973). ↩
• See infra Part III on the political authority of the Equal Protection Clause. ↩
• For examples of work in the equality tradition that emerged in the years before Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833 (1992), see Laurence H. Tribe, American Constitutional Law § 15-10, at 1353–59 (2d ed. 1990); Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375 (1985); Sylvia A. Law, Rethinking Sex and the Constitution , 132 U. Pa. L. Rev. 955 (1984); Catharine A. MacKinnon, Reflections on Sex Equality Under Law , 100 Yale L.J. 1281 (1991); Reva Siegel, Reasoning From the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection , 44 Stan. L. Rev. 261 (1992) [hereinafter Siegel, Reasoning From the Body ]; and Cass R. Sunstein, Neutrality in Constitutional Law (With Special Reference to Pornography, Abortion, and Surrogacy) , 92 Colum. L. Rev. 1 (1992).  For more recent sex equality work, see, for ex­ample, What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision (Jack M. Balkin ed., 2005) (sex equality opinions by Jack Balkin, Reva Siegel, and Robin West); and Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression , 56 Emory L.J. 815, 833–34 (2007) [hereinafter Siegel, Sex Equality Arguments for Reproductive Rights ] (surveying equality arguments after Casey ). ↩
• See, e.g. , Siegel, Sex Equality Arguments for Reproductive Rights , supra note 3, at 817–22. ↩
• See id. at 819. ↩
• See generally Siegel, Reasoning From the Body , supra note 3. ↩
• 539 U.S. 558 (2003). ↩
• Id. at 578. ↩
• Id. at 575. ↩
• Thus the Court wrote that the very “continuance” of Bowers v. Hardwick , 478 U.S. 186 (1986), “as precedent demeans the lives of homosexual persons.”  Lawrence , 539 U.S. at 575. ↩
• 505 U.S. 833 (1992). ↩
• Id. at 852. ↩
• Id. at 856. ↩
• Id. at 898. ↩
• Id. at 928 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part). ↩
• Id. ↩
• 550 U.S. 124 (2007). ↩
• Id. at 172 (Ginsburg, J., dissenting).  For an argument that “equal citizenship stature” is central to Justice Ginsburg’s constitutional vision, see generally Neil S. Siegel, “Equal Citizenship Stature”: Justice Ginsburg’s Constitutional Vision , 43 New Eng. L. Rev. 799 (2009). ↩
• 518 U.S. 515 (1996). ↩
• Id. at 534. ↩
• See generally Neil S. Siegel, The Virtue of Judicial Statesmanship , 86 Tex. L. Rev. 959, 1014–30 (2008); Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey / Carhart, 117 Yale L.J. 1694 (2008). ↩
• 417 U.S. 484 (1974). ↩
• See Neil S. Siegel & Reva B. Siegel, Pregnancy and Sex Role Stereotyping: From Struck to Carhart, 70 Ohio St. L.J. 1095, 1111–13 (2009); Reva B. Siegel, You’ve Come a Long Way, Baby: Rehnquist’s New Approach to Pregnancy Discrimination in Hibbs, 58 Stan. L. Rev. 1871, 1891–97 (2006). ↩
• Geduldig , 417 U.S. at 496–97 n.20. ↩
• See Brief for Appellees at 38, Geduldig , 417 U.S. 484 (No. 73-640), 1974 WL 185752, at *38 (“The issue for courts is not whether pregnancy is, in the abstract, sui generis, but whether the legal treatment of pregnancy in various contexts is justified or invidious.  The ‘gross, stereotypical dis­tinc­tions between the sexes’ . . . are at the root of many laws and regulations relating to preg­nancy.” (quoting Frontiero v. Richardson, 411 U.S. 677, 685 (1973))). ↩
• 538 U.S. 721 (2003). ↩
• Id. at 731 (majority opinion of Rehnquist, C.J.) (asserting that differential workplace leave policies for fathers and mothers “were not attributable to any differential physical needs of men and wo­men, but rather to the pervasive sex-role stereotype that caring for family members is women’s work”); id. at 736 (quoting Congress’s finding that the “prevailing ideology about women’s roles has . . . justified discrimination against women when they are mothers or mothers-to-be” (cita­tion omitted) (internal quotation marks omitted)). ↩
• Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (2006) (“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of preg­nancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . .”).  Concerns about sex-role stereotyping played a significant part in Congress’s decision to amend Title VII .  See, e.g. , H.R. Rep. No. 95-948, at 3 (1978) (“[T]he assumption that women will become [pregnant] and leave the labor force leads to the view of women as marginal workers, and is at the root of the discriminatory practices which keep women in low-paying and dead-end jobs.”). ↩
• See, e.g. , McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010) (Scalia, J., concurring) (“Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights ‘because it is both long es­tab­lished and narrowly limited.’”  This case does not require me to reconsider that view, since straightfor­ward application of settled doctrine suffices to decide it.” (quoting Albright v. Oliver, 510 U.S. 266, 275 (1994))). ↩
• See Bolling v. Sharpe, 347 U.S. 497 (1954) (holding that de jure school segregation in Washington, D.C. violates the equal protection component of the Due Process Clause of the Fifth Amendment); see also, e.g. , Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (1995) (Thomas, J., concurring in part and concurring in the judgment) (“These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle.  Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society.” (emphasis added)). ↩
• See Shapiro v. Thompson, 394 U.S. 618 (1969) (right to travel as a fundamental right). ↩
• See Zablocki v. Redhail, 434 U.S. 374 (1978) (right to marry as a fundamental right); Loving v. Virginia, 388 U.S. 1 (1967) (same). ↩
• See Skinner v. Oklahoma, 316 U.S. 535 (1942) (right to procreate as a fundamental right). ↩
• See Eisenstadt v. Baird, 405 U.S. 438 (1972) (right to contraception for all individuals as a fundamental right); Griswold v. Connecticut, 381 U.S. 479 (1965) (right to contraception for married couples as a fundamental right). ↩
• Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting). ↩

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About the author.

Neil S. Siegel is Professor of Law and Political Science, Co-Director, Program in Public Law, Duke Law School. Reva B. Siegel is Nicholas deB. Katzenbach Professor of Law, Yale University.

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The first amendment, supreme court case, roe v. wade (1973).

410 U.S. 113 (1973)

“We . . . conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

Selected by

Caroline Fredrickson

Visiting Professor, Georgetown University Law Center and Senior Fellow at the Brennan Center for Justice

Ilan Wurman

Associate Professor, Sandra Day O'Connor College of Law at Arizona State University

At a time when Texas law restricted abortions except to save the life of the mother, Jane Roe (a single, pregnant woman) sued Henry Wade, the local district attorney tasked with enforcing the abortion statute. She argued that the Texas law was unconstitutional. The Supreme Court agreed, holding that the right of privacy, inherent in the Due Process Clause of the Fourteenth Amendment, protects a woman’s choice to have an abortion. That right is limited, however, as the pregnancy advances, by the State’s interest in maternal health and in fetal life after viability. Amid national debate over this issue, this was the first time the Court took up this question and affirmed the “right to choose,” as it is often titled.

Read the Full Opinion

Excerpt: Majority Opinion, Justice Harry Blackmun

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment; in the Fourth and Fifth Amendments; in the penumbras of the Bill of Rights; in the Ninth Amendment; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage; procreation; contraception; family relationships; and child rearing and education.

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. . . .

The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. [A] State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim . . .  that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. 

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, 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. . . .

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. 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. . . .

Excerpt: Dissent, Justice William Rehnquist

The Court’s opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent. . . .

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not ‘private’ in the ordinary usage of that word. Nor is the ‘privacy’ that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy.

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. . . . The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective . . . . But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one. . . .

The fact that a majority of the States reflecting, after all the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the ‘right’ to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. . . . By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857, and “has remained substantially unchanged to the present time.” . . .

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter. . . .

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The Rhetoric That Shaped The Abortion Debate

Women take part in a 1977 demonstration in New York City demanding safe and legal abortions for all women. Peter Keegan/Stringer/Hulton Archive/Getty Images hide caption

Women take part in a 1977 demonstration in New York City demanding safe and legal abortions for all women.

Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling By Linda Greenhouse and Reva B. Siegel Hardcover, 352 pages Kaplan Publishing List Price: $26

Before the Supreme Court struck down many state laws restricting abortion in the 1973 landmark case Roe v. Wade , the Justices read briefs from both abortion-rights supporters and opponents.

Pulitzer Prize-winning journalist Linda Greenhouse has collected the best of these briefs -- as well as important documents leading up to the decision -- in a new book, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling.

In an interview on Fresh Air, Greenhouse explains the arguments in favor of decriminalizing abortion -- and the rhetoric used by both sides of the debate that continues to resonate more than 35 years after Roe.

After researching the book, Greenhouse says, she came away with a more nuanced understanding of how the abortion debate has affected so many other issues.

"What the research did indicate to me is how multifaceted the issue is and how the word [abortion] came over time to stand for so much more than the termination of a pregnancy," she says. "It really came to stand for a debate about the place of women in the world."

Linda Greenhouse is a senior fellow at Yale Law School. She covered the Supreme Court for The New York Times for three decades. courtesy of the author hide caption

Linda Greenhouse is a senior fellow at Yale Law School. She covered the Supreme Court for The New York Times for three decades.

Interview Highlights

On why the medical community's lobbying groups shifted to support the decriminalization of abortion

"The medical impetus to start reforming the old abortion laws actually came, not from the American Medical Association but from the American Public Health Association -- from the public health profession. There is a public health doctor, Mary Calderon, who was medical director of Planned Parenthood and also very active in professional public health circles. She wrote some influential articles depicting abortion as a serious public health issue -- that is to say, illegal abortion, back-alley abortion, as a serious public health issue -- and basically started calling on the medical profession to take a new look at this old issue. Abortion could now be a very safe medical procedure when done properly and under the right conditions. And so the facts on the ground had changed: Women were having secret abortions in large numbers; there was a good deal of medical bad consequences and suffering because of this, and it was really the public health doctors who sounded the call."

On the use of the phrase 'the right to choose'

"Jimmye Kimmey was a young woman who was executive director of an organization called the Association for the Study of Abortion (ASA), which was one of the early reform groups and was migrating in the early 1970s from a position of reforming the existing abortion laws to the outright repeal of existing abortion laws, and she wrote a memorandum framing the issue of how the pro-repeal position should be described: 'Right to life is short, catchy, composed of monosyllabic words -- an important consideration in English. We need something comparable. Right to choose would seem to do the job. And ... choice has to do with action, and it's action that we're concerned with.' "

On the significance of J.C. Willke, who wrote Handbook on Abortion

"He is a key figure in the right-to-life movement. He and his wife self-published this little book called Handbook on Abortion in 1971 in the form of questions and answers about abortions from the right-to-life point of view. And it got distributed like wildfire. It now exists in many, many editions. People can go on Google and Amazon and find it easily. It's been translated in many languages, and it really became a Bible of the right-to-life movement. And we were grateful to Dr. Willke for giving us permission to republish it. The reason we wanted to have a substantial excerpt from it is because people on the pro-choice side, I'm quite certain, have never seen it. And it's a very striking document and his voice was and continues to be an important voice on that side."

On feminism's role in shaping the abortion debate

"The feminist community at that time, in the mid-'60s, was much more interested in empowering women to take a full place in the economy, in the world-place. Things like child care. Things like equal pay. Things like getting rid of sex-specific help-wanted ads. Woman wanted, man wanted -- that type of thing. And there wasn't much talk about abortion reform in feminist circles until quite late in the '60s, when Betty Friedan, in a very influential speech, drew the connection between the ability of women to participate fully in the economy and the ability of women to control their reproductive lives. That began a reframing in feminist terms of the issue of abortion reform as part of women's empowerment and of women assuming a new role in society."

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Before Roe v. Wade

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Excerpt: 'Before Roe v. Wade'

Roe v Wade: a philosopher on the true meaning of ‘my body, my choice’

Professor of Philosophy, University of Southampton

Disclosure statement

Fiona Woollard held a Non-Residential Fellowship in Philosophy of Transformative Experience at the Experience Project (September 2016-February 2017), funded by the Templeton Foundation, the University of Notre Dame, and the University of North Carolina at Chapel Hill. She has also received funding from the Mind Association, the ESRC, the AHRC, and been on a project funded by the European Research Council.

University of Southampton provides funding as a member of The Conversation UK.

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The overturning of Roe v Wade harms all women and all who can get pregnant around the world by making their body-ownership merely conditional. This undermines their equality with others.

Many people are reeling from the recent decision by the US Supreme Court to overturn Roe v Wade, so that states may now make it illegal to obtain or perform an abortion. For many of us, even if we do not live in the US, this feels like a personal blow. I use my work in moral philosophy to explain this feeling. If we feel personally affected it is because we are personally affected. The ruling diminishes the self-ownership of all women (even if they cannot get pregnant) and all those who can get pregnant, wherever they live.

The decision is likely to leave 33 million people in the US without access to abortion. These are the people most directly affected by the ruling. Evidence shows that being denied an abortion harms a person’s health, finances and family life . Those in the US who are forced to continue pregnancy may lose their dreams, or even their lives .

But the effects of the US ruling are global. Anyone who can get pregnant now knows that they cannot travel or move to the US and be recognised as an equal with equal rights. The same is not true for our male compatriots.

Of course, the US is not the only place where access to abortion is restricted so the development in the US amounts to an additional blow to equality, rather than a loss of what had been perfect equality. But the size and influence of the US make this additional blow very significant.

What is body ownership and why does it matter?

You own your body when you have the authority to make decisions about what is done to it and how it is used on the basis of your own interests and desires.

Body ownership is a fundamental part of moral standing for humans . It is through my body that I act on the world: when I bake a cake, write a book or build a house, I use my body. It is through my body that the world acts on me. When I am struck by the beauty of a sunrise, enjoy a cool breeze, find myself convinced by an argument, these effects on me need to go through my body. How my body is, makes up a major part of how I am: if my body is hurt, I am hurt. Body ownership is needed to respect the unique relationship between me and my body.

Body ownership is needed for a valuable kind of agency that I call full-fledged agency – the freedom to select one’s own ends and adopt a settled course of action in line with those ends. Maybe I value helping the sick and want to become a doctor. This requires me to commit to study for many years. I can only do this if I have at least some authority to decide what happens to my body.

None of this means that you are never required to use your body for others: it’s pretty uncontroversial that I am required to call an ambulance if the person next to me has a heart attack and this does not undermine self-ownership. However, for me to genuinely own my body, there must be limits on these requirements. I must have a say in how my body is used for the benefit of others.

Lack of access to abortion can undermine your body ownership even if you never actually need an abortion. If you can get pregnant but access to abortion is limited, then you only get to decide what happens to your body so long as you are not pregnant. You are not entirely free to decide on the actions needed to achieve your goals.

Indeed, I believe legal restrictions on abortion undermine body ownership for any woman, even if she cannot get pregnant and even if she never plans to travel to the US. Her control over her body still depends on the ability or inability to get pregnant and on where she is in the world. A woman’s right to control her body should not rest on such accidents.

Philosopher T.M. Scanlon discusses a “friend” who would steal a kidney for you if you needed one. Scanlon argues that this person is not a true friend to you, because of what his view must be of your right to your own body parts: “He wouldn’t steal them [from you], but that is only because he happens to like you.”

We need our friends to recognise that we have rights to our body parts because we are people, not just because they happen to like us. As a woman, I need recognition that my body belongs to me because I am a person, not merely because I happen not to be able to get pregnant or happen not to need to go to the US.

So all women and all those who can get pregnant are personally affected by the overturning of Roe v Wade – and all threats to abortion access. Recognition of why this is might help us understand otherwise puzzling feelings, both in ourselves and others. It might also help us to work together to defend reproductive rights .

• US politics
• Abortion rights
• Moral philosophy
• Women's rights
• Abortion access
• bodily autonomy

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