Many Americans today think of Roe v. Wade as a radical, left-wing decision. That was not the view at the time. The story of how we got to Roe, like the story of how we got to Brown v. Board of Education or how we got to Obergefell v. Hodges, is important to remember, for it gives both content and context to the often furious debates of the present.
Although it is impossible to know how common abortion was in England in the 18th century, we do know that it was often relied on by single and widowed women to avoid the stigma and consequences of illegitimate births. At this time, women used a variety of means to terminate unwanted pregnancies, including bleedings, strenuous exercise, tight lacing, pessaries, and herbal abortifacients.
Public attitudes toward abortion in this era turned on the circumstances. The time of abortion was critical. Abortions before quickening (defined as the point at which the woman could feel movement—typically around four and a half months) generally were not regarded as immoral, and the common law did not regard such abortions as unlawful. The American colonies followed the English approach on this issue, but prosecutions even for post-quickening abortions were few and far between.
Over the course of the 19th century, there was a significant shift in attitudes toward birth control. This was evident in the fact that the birth rate fell dramatically from 1800 to 1900. In the colonial era, the average family had nine children. By 1900, that number was only three. In the agrarian world of the 18th century, children were an important economic asset; by the end of the 19th century, with greater urbanization and industrialization, they were increasingly seen as a financial burden that could cause a family’s economic ruin. By the late 19th century, it was commonly understood that a large family was no longer a cause of congratulation, but an indication of carelessness. For most families, birth control of one sort or another had become essential.
These changes brought about a dramatic shift in the public acknowledgment of abortion. Before 1840, abortion was perceived primarily as the business of prostitutes and as a recourse for the desperate. In the years after 1840, however, the social character of the practice began to change. Abortion rates soared, and a high proportion of the women having abortions were, for the first time, married women of middle – or upper-class status. By the 1850s, abortion was increasingly acknowledged as a legitimate practice to maintain and improve a family’s economic welfare. By this time, roughly 20 percent of all pregnancies were purposefully terminated.
Contributing to the increase in abortion was the wide availability of abortifacients in this era from mail-order firms and pharmacists. Daily newspapers regularly ran ads for products that promised to “cure” pregnancy—a euphemism for terminating a pregnancy. And those who provided abortion services often did so quite openly. The flamboyant Ann Lohman Restell of New York City, popularly known as “Madame Restell,” maintained a highly profitable abortion business serving a genteel, middle- and upper-middle-class clientele. She touted her “celebrated powers for married ladies” and advertised extensively in the penny press of the day.
This general acceptance of abortion began to change at mid-century. Several factors contributed to this shift. First, the number of abortions at every level of society grew dramatically in the first half of the 19th century, to the point where abortion opponents came to refer to it as “the Evil of the Age.”
Second, religious perspectives on abortion shifted during the Second Great Awakening. The traditional Protestant conception of the fetus assumed that it was not alive until quickening. Abandoning the conventional view that “human life was dormant like an unsprouted seed, until the mother could first sense foetal stirrings,” evangelicals during the Second Great Awakening preached that a separate, distinct, and precious life came into being at the instant of conception.
Third, and perhaps even more significant, medical professionals increasingly came to the view, based partly on religion and partly on science, that life begins at conception. In 1839, for example, Hugh Lenox Hodge, a professor at the University of Pennsylvania Medical School, published a pamphlet in which he confidently asserted that embryos could think and could perceive right and wrong. In 1857, the Boston gynecologist Horatio Storer initiated a “Physicians’ Crusade Against Abortion” and persuaded the newly founded American Medical Association (AMA) to create a new Committee on Criminal Abortion.
The committee, chaired by Storer, presented its report at the AMA’s 1859 meeting. The report decried the growing frequency of the “heinous” act of abortion among all classes of society and maintained that the primary cause of this “general demoralization” of women was the “wide-spread popular ignorance of the true character” of abortion. The report called upon the AMA to condemn “the act of producing abortion, at every stage of gestation, except as necessary for preserving the life” of the woman. After some deliberation, the AMA endorsed the committee’s recommendations.
While purported concerns about women’s health also became an argument against abortion, Storer emphatically rejected the proposition that the woman should be able to decide this question for herself, noting that if she were given this responsibility “her decision . . . would be . . . warped by personal considerations,” particularly because, during pregnancy, a “woman’s mind is prone to depression, and, indeed, to temporary actual derangement, under the stimulus of uterine excitement.” Moreover, he added, women were born to bear children. Thus, for a woman “intentionally to prevent the occurrence of pregnancy,” or “intentionally to bring it, when begun, to a premature close, are alike disastrous to a woman’s mental, moral, and physical well-being.”
Over the next several decades, the AMA launched an aggressive campaign to rid the nation of abortion. The success of this campaign was facilitated by the late 19th-century “social purity” movement, which sought to impose conservative religious and moral values on the whole society and to give the state greater power over areas of life once considered private. The desire of women to control their own bodies and lives was thus castigated by doctors and religious leaders alike as the product of a deformed and insatiable appetite for sex and a selfish desire for economic well-being. As the leading voice of the antiabortion movement, Horatio Storer insisted that women must remain within their “God-given sphere.” The purpose of “American women,” he declared, was to produce children, not to “butcher” them.
By the end of the 19th century, every state had enacted legislation prohibiting abortion at any stage of pregnancy unless a doctor certified that it was necessary to save the life of the mother. For the first time, women who sought abortions were now themselves subject to prosecution, and government for the first time aggressively sought to suppress all information about abortion.
Despite the threat of criminal sanctions, the medical profession’s warnings about the dangers of abortion, and the preaching of religious moralists, women in the late 19th century continued to seek abortions in record numbers. By the turn of the 20th century, as many as two million abortions were being performed in the United States annually, and almost a third of all pregnancies ended in abortion. Now, though, these abortions had to be performed illegally, in less safe circumstances, and by less reliable practitioners than in the past.
The Situation in 1960
By the early 1960s, abortion at any stage of pregnancy had been illegal in the United States for almost a century. Although a few states allowed abortion when necessary to prevent serious harm to the pregnant woman’s health, the vast majority of states permitted abortion only when necessary to save the life of the woman. At that time, some 8,000 legal abortions and about 1,000,000 illegal abortions were performed every year. Thus, the vast majority of women who wanted to terminate an unwanted pregnancy at this time had to turn in desperation to dangerous “back-alley” abortions.
Critics of abortion argued that the issue was simple: Women ought to just accept the consequences of sex or abstain. That was the choice. As one abortion opponent put the point: “If you don’t want a pregnancy, don’t do anything to get pregnant.” Of course, not everyone accepted that view. Beginning in the 1950s, some members of the medical profession began to express frustration with this state of affairs. Increasingly, doctors resented being shackled by restrictive abortions laws, which prevented them from serving the needs of their patients and effectively forced women to seek illegal, unregulated, and often unsafe abortions.
A number of physicians called for change in the laws governing abortion, even though their advocacy of this position risked their standing in the profession. At this time, those concerned about the issue of abortion focused primarily on the rights of doctors rather than on the rights of women, which were not yet seen as “rights” at all. The problem was not so much that women could not have abortions but that doctors couldn’t treat their patients in a “proper” manner.
In 1962, the American Law Institute (ALI) endorsed a reform proposal as part of its Model Penal Code. The proposal called on states to legalize abortions whenever two or more doctors agreed that there was a “substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother,” that “the child would be born with a grave physical or mental defect,” or that “the pregnancy resulted from rape, incest, or other felonious intercourse.” The ALI’s proposal carried considerable weight. Within a few years, 12 states had amended their laws to adopt some or all of the ALI’s recommendations.
But this reform addressed the needs of only a small percentage of the women each year who sought to terminate an unwanted pregnancy. Some of the one million or so women who resorted each year to unlawful abortions were fortunate enough and wealthy enough to find doctors who were willing to perform such abortions. The going rate for an illegal abortion performed by a qualified physician was typically in the range of $1,000 to $1,500 (about $8,000 to $12,000 in today’s dollars). Most women who could afford to pay a doctor to perform an illegal abortion were married, wealthy, and well connected. Even for them, though, it was frequently difficult to find such physicians. Often they would have to ask friends whether they “knew anyone who knew anyone,” an inquiry that could be quite mortifying. To avoid that humiliation, some women who could afford to do so simply left the country to get an abortion elsewhere.
The vast majority of women who found themselves facing the dilemma of an unwanted pregnancy could not afford either to leave the country or to pay a physician in the United States. Instead, they turned either to self-induced abortion or to the dark and often forbidding underworld of untrained and unreliable “back-alley” abortionists. Women who resorted to self-induced abortion typically relied on such methods as throwing themselves down a flight of stairs or ingesting, douching with, or inserting into themselves a chilling variety of chemicals and toxins ranging from bleach to potassium permanganate to turpentine to gunpowder to whiskey. Knitting needles, crochet hooks, scissors, and coat hangers were among the tools commonly used by women who attempted to self-abort. Some 30 percent of all illegal abortions were self-induced.
Women who sought abortions from back-alley abortionists encountered similar horrors. To find someone to perform an illegal abortion, women often had to rely on the advice of friends or acquaintances or on tips from elevator operators, taxi cab drivers, salesmen, and the like. Moreover, because of the clandestine nature of illegal abortions, the very process of finding an abortionist was often dangerous and terrifying. Women who sought back-alley abortions were sometimes blindfolded, driven to remote areas, and passed off to people they did not know and could not even see during the entire process. Such abortions were performed not only in secret offices and hotel rooms but also in bathrooms, in the backseats of cars, and also, literally, in back alleys. The vast majority of these abortions were performed either by persons with only limited medical training, such as physiotherapists, midwives, and chiropractors, or by rank amateurs, including elevator operators, prostitutes, barbers, and unskilled laborers.
In the 1960s, an average of more than 200 women every year died as a result of botched illegal abortions. The mortality rate for black and Hispanic women was 12 times the mortality rate for white women. In addition to those who died in the course of illegal abortions, many thousands more suffered serious illness or injury. Because of the humiliation associated with having an illegal abortion, many women who suffered complications were reluctant to visit a doctor for treatment.
The stories of women who suffered through this nightmare are legion.
One woman recalled how a fellow college student who had had an illegal abortion was too frightened to tell anyone what she had done. She locked herself in the bathroom in her dorm and quietly bled to death. In another incident, 28-year-old Geraldine Santoro bled to death on the floor of a Connecticut hotel room after she and her former lover attempted an abortion on their own. The former lover, who had no medical experience, used a textbook and some borrowed tools. When things went terribly wrong, he fled the scene, and Santoro died alone.
Support Builds for Abortion
Such incidents led some religious organizations that had previously been silent on abortion to address the issue more directly. Protestant churches varied in their opinions. Most supported some variation of the ALI’s position, but some went even further. The United Methodist Church, for example, acknowledged “the sanctity of unborn human life” but nonetheless proclaimed that, because “we are equally bound to respect the sacredness of the life and well-being of the mother, for whom devastating damage may result from an unacceptable pregnancy,” they “support the removal of abortion from the criminal code, placing it instead under laws relating to other procedures of standard medical practice.”
Similarly, in 1968, the American Baptist Convention came to the conclusion that abortion should be a matter of “responsible personal decision” that should be available as an “elective medical procedure” at the “request of the individual” at any time before the end of the first trimester of pregnancy.
Three years later, the more conservative evangelical Southern Baptist Convention endorsed the ALI’s approach and called on Southern Baptists to support laws that would permit abortion in cases of rape, incest, or fetal deformity or where the emotional, mental, and physical health of the mother was clearly at risk. Although some fundamentalist Christians maintained that abortion was condemned in the Bible, the vast majority of evangelicals took a more moderate approach. Indeed, the National Association of Evangelicals expressly endorsed “the necessity for therapeutic abortion to safeguard the health or the life of the mother.”
The Catholic Church, on the other hand, insisted that abortion was always and unequivocally forbidden, even when necessary to save the life of the woman. This led the politics of abortion to play out in interesting ways. Because Catholics had traditionally identified with the Democratic Party and because Catholics were more likely than others to oppose abortion, Republicans at this time were more “pro-abortion” than Democrats. According to a Gallup poll in early 1972, for example, 68 percent of Republicans, as compared with 59 percent of Democrats, thought that “the decision to have an abortion should be made solely by a woman and her physician.”
But because of other, more liberal elements in the Democratic Party, the Democratic Party was officially more pro-abortion than the Republican Party. Seeing an opportunity to draw disaffected Catholic voters away from the Democrats, Republican leaders began to move toward a more antiabortion stance. They knew that, if they could succeed in this effort, they could bring about a profound shift in the future of American politics.
This strategy was clearly evident in President Richard Nixon’s policies. In 1970, Nixon authorized military hospitals to perform therapeutic abortions without regard to the law of the state in which the hospital was located. A year later, however, with a clearer sense of the potential political ramifications of the abortion issue, Nixon revoked that policy. Influenced by Republican Party strategist Kevin Phillips’s influential book The Emerging Republican Majority (1969), Nixon then sharply attacked the Democrats for their support of abortion and embraced an increasingly strident antiabortion stance in a concerted effort to draw Catholics into the Republican camp. Nixon applauded those who defended “the right to life of the unborn.” This campaign, he declared, “is truly a noble endeavor,” and in “this calling,” you and your allies “have my admiration, sympathy and support.”
Nixon knew what he was doing. Large numbers of Catholics who were prepared to cast single-issue votes on the abortion issue voted Republican for the first time in their lives in 1972, helping Nixon win an overwhelming victory in that year’s presidential election, winning 49 of the 50 states.
At roughly the same time, though, the rising voice of the women’s movement began to shape the public discourse on abortion. In February 1969, Betty Friedan, the founding president of the National Organization for Women (NOW), which had been established in 1966, delivered a rousing address in Chicago at what was billed as the First National Conference on Abortion Laws. Friedan focused publicly on a new argument in support of legal abortion: “[T]here is no freedom, no equality, . . . possible for women until we assert and demand the control over our own bodies, over our own reproductive process.” She proclaimed that the “right of woman to control her reproductive process must be established as a basic and valuable human civil right not to be denied or abridged by the state.” This was essential, she maintained, to the full human “personhood and dignity of woman.”
By the end of the conference in Chicago, participants founded the National Association for the Repeal of Abortion Laws (NARAL) on the premise that what was needed was not ALI-type reform, which had focused narrowly on protecting women’s health, but a complete overhaul of America’s abortion laws. In November of 1969, Planned Parenthood and the American Public Health Association both called for repeal rather than reform of America’s abortion laws and declared abortion to be a personal right of the woman.
In a profound shift, the campaign for abortion reform was now about the rights of women rather than the rights of doctors. These three organizations maintained that denial of a woman’s right to control her own reproductive destiny violated her fundamental right to decide for herself whether—or not—“to bear or beget a child.”
As these organizations moved to the forefront of national debate, public opinion rapidly changed in parallel. By October 1971, 50 percent of Americans believed that, at least in the first trimester of pregnancy, abortion should be a decision for a woman and her doctor. Less than a year later, that figure had climbed to 64 percent. In 1970, four states—Alaska, Hawaii, New York, and Washington—legalized abortion at least in the first trimester, thus restoring the state of the law to what it had been 150 years earlier.
Between 1967 and 1970, the abortion rights movement won a series of legislative victories. Thirteen states liberalized their abortion laws by enacting a version of the ALI proposal, and four others legalized abortion in at least the first trimester. Then, suddenly, the legislative progress ground to a halt. Despite increasing—and clear majority—public support for leaving the abortion decision to the woman and her doctor, no state legislature enacted reform legislation after 1970.
Several factors contributed to this legislative paralysis. First, the initial round of legislative victories both surprised and energized abortion opponents, especially the Catholic leadership, and after getting their act together, they organized with extraordinary effectiveness. Second, those opposed to abortion threatened quite credibly to act as single-issue voters and they communicated that intention to elected officials with perfect clarity. Third, Catholic leaders worked tirelessly not only to mobilize Catholics but also to bring non-Catholic antiabortion voters into the single-issue-voter fold. Legislators knew all too well that, although a substantial majority of citizens supported legalizing abortion, committed single-issue voters could effectively vote them out of office when election day rolled around.
The Battle Moves to Court
Faced with such obstacles in the legislative arena, those seeking to continue the momentum of the prior decade began to think more seriously about challenging the constitutionality of antiabortion statutes in the courts. Initially, this seemed a long shot because, in the words of New York Times columnist Linda Greenhouse, the idea of a constitutional right of abortion seemed somewhat “illusory.” But with legislative change effectively blocked, the courts were the only alternative.
In 1967, Roy Lucas, a New York University law student, wrote a student essay arguing that a woman’s right to decide for herself whether or not to have a child should be understood as a fundamental constitutional right protected by the concept of personal liberty. Although Lucas’s professors thought the argument implausible, others did not.
Harriet Pilpel, who had served as general counsel for both Planned Parenthood and the American Civil Liberties Union, was sufficiently intrigued by the idea of a direct, frontal challenge to antiabortion laws on constitutional privacy grounds that she and Lucas began to craft a test case to pose the question. In 1970, relying in part on Lucas’s theory, a group of lawyers filed four separate cases in federal court challenging the constitutionality of New York’s 19th-century antiabortion law. Before the federal district court could decide the case, however, the New York legislature repealed its statute and thus rendered the cases moot.
At the same time in Connecticut, after the legislature repeatedly refused even to consider amending its mid-19th-century antiabortion statute, a group of women’s liberation activists formed a new group, Women versus Connecticut, to challenge the constitutionality of the law. “We want control over our own bodies,” they declared. “We are tired of being pressured to have children or not to have children. It’s our decision.” The current state of the law was intolerable, they proclaimed, because “as long as the law makes obtaining an abortion a criminal act, we will continue to be forced to behave like—and thus to feel like—criminals.” Because getting a new law through Connecticut’s heavily Catholic legislature seemed unlikely, they concluded that asking the courts to find Connecticut’s abortion law unconstitutional seemed “more apt to succeed.”
On March 2, 1971, Women versus Connecticut filed its complaint in federal district court on behalf of 858 women plaintiffs. Six weeks later, a three-judge federal court, in a 2–1 decision, held the Connecticut statute unconstitutional. Judge J. Edward Lumbard, an Eisenhower appointee, held that, in this law, “Connecticut trespasses unjustifiably on the personal privacy and liberty of its female citizens in violation of the Ninth Amendment and the Due Process Clause.” “The decision to carry and bear a child,” he explained, “has extraordinary ramifications for a woman,” including possible issues of health, “psychological and social adjustments,” and potentially serious effects on “her family’s financial or emotional resources.” Moreover, if the woman is unmarried, she “will suffer the stigma of having an illegitimate child.” Abele v. Markle, 342 F. Supp. 800 (D. Conn. 1972).
Judge Lumbard reasoned that, in such circumstances, “determining whether or not to bear a child is of fundamental importance to a woman.” Whatever the role of women in 1860 when the Connecticut statute was enacted, “the changed role of women in society and the changed attitudes toward them reflect the societal judgment that women can competently order their own lives and that they are the appropriate decisionmakers about matters affecting their fundamental concerns.” Balancing the competing interests, including the state’s interest in protecting “the rights of the fetus,” Judge Lumbard concluded that “the state’s interests are insufficient to take from the woman the decision after conception whether she will bear a child and that she, as the appropriate decisionmaker, must be free to choose.”
By 1970, cases challenging state antiabortion laws were now popping up everywhere. In Georgia, a group of 24 plaintiffs, including doctors, nurses, social workers, and members of the clergy, challenged the constitutionality of Georgia’s recently enacted abortion statute, which had embraced the reforms recommended by the ALI. A three-judge federal district court unanimously held the Georgia statute unconstitutional. Although conceding that, as with any medical procedure, the state could reasonably regulate certain aspects of abortion, the court ruled that the constitutional “concept of personal liberty embodies a right to privacy” that is “broad enough to include the decision to abort a pregnancy” and that by limiting “the number of reasons for which an abortion may be sought,” the Georgia law “unduly restricts a decision sheltered by the Constitutional right to privacy.” Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970).
At roughly the same time in Texas, Linda Coffee and Sarah Weddington, recent graduates of the University of Texas Law School, teamed up to bring a test case to challenge the Texas antiabortion statute. The plaintiff, identified as “Jane Roe,” alleged that the Texas law unconstitutionally infringed the fundamental right of women to decide for themselves whether or not to bear children.
On June 17, 1970, a three-judge federal district court ruled unanimously that the “fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment,” which provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and which had been invoked by the Supreme Court five years earlier in Griswold v. Connecticut in holding unconstitutional a state law that prohibited married couples from using contraceptives. The three-judge court held the Texas antiabortion statute unconstitutional because it infringed Jane Roe’s Ninth Amendment right to decide for herself whether to have an abortion. Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970).
On May 3, 1971, the U.S. Supreme Court announced that it would consider Roe v. Wade.
Roe v. Wade
Despite the efforts of the Catholic Church and the Republican Party, by 1973 a substantial majority of Americans supported the right of a woman to terminate an unwanted pregnancy. Gallup polls at the time showed that “two out of three Americans think abortion should be a matter for decision solely between a woman and her physician.” Moreover, lower courts were already moving in a direction that clearly anticipated Roe.
Strikingly, three of the four justices appointed to the Supreme Court by Richard Nixon, who had dedicated himself to appointing “conservative” justices, joined the decision. Indeed, without their support, Roe would have come out the other way. That Chief Justice Warren Burger and Justices Harry Blackmun and Lewis Powell joined Justices Douglas, Brennan, Stewart, and Marshall in Roe speaks volumes about the mainstream nature of the decision.
The plain and simple fact is that, at the time Roe was decided, Blackmun, Burger, and Powell did not view the abortion issue as posing a particularly ideological question. Although all of the justices understood that Roe addressed a highly emotional and important issue, none of them imagined at the time that it would become a flashpoint of American politics and would continue to shape those politics for decades to come.
This understanding of Roe is consistent with both the news coverage and the public reaction at the time. Because Lyndon Johnson died on the same day that the Court announced its decision in Roe, newspapers, magazines, and news shows treated the Court’s decision as only a secondary headline. The primary story was the death of the former president. Although U.S. News & World Report, to cite just one example, described Roe at the time as “a historic resolution of a fiercely controversial issue,” it did not even mention it on the front page of that week’s issue. Forty years later, the editors observed correctly that “the far-reaching effects of the decision weren’t evident at the time.”
This view is consistent with the overall tenor of the editorials and commentary about Roe in the days after the decision. In general, they tended to be approving and relatively moderate in tone. Even newspapers in Georgia and Texas, whose laws had been held unconstitutional, were supportive. The Atlanta Constitution characterized the decision as “realistic and appropriate,” the Houston Chronicle called it “sound,” the San Angelo Standard-Times applauded it as “wise and humane,” and the San Antonio Light gushed that although the ruling was “not perfect, . . . it was as close to it as humanly possible.” These responses were not at all surprising in light of the fact that the American people clearly endorsed the decision. In polls taken at the time, Americans approved of Roe by a significant margin of 52 to 41 percent.
To put that in perspective, it is instructive to compare the public’s reaction to Roe with its reaction to other, more controversial, decisions. In 1962, for example, after the Supreme Court held prayer in public schools unconstitutional, 79 percent of the American people disapproved of the decision. In 1967, after the Court held laws prohibiting interracial marriage unconstitutional, 72 percent disapproved. In 2010, after the Court held laws limiting corporate campaign expenditures unconstitutional, 80 percent of Americans disapproved. But only 41 percent of Americans disagreed with Roe. An additional measure of just how uncontroversial Roe was at the time is the fact that, when President Gerald Ford nominated John Paul Stevens to succeed Justice William O. Douglas in 1975, not a single senator asked Stevens a question about Roe or about his views on abortion.
Even evangelicals did not condemn the decision. To the contrary, as noted earlier, several years before Roe the American Baptist Convention declared that abortion should be available “at the request” of the woman at any time before the end of the first trimester. In 1973, most evangelicals “regarded abortion as a Catholic issue.” Even evangelicals who did not share that view did not make a fuss over the decision. Indeed, it was not until the end of the decade that the evangelical community finally changed its tune and began to focus negatively on Roe as an important religious, moral, and political issue.
The one group that did strongly condemn Roe from the very moment of the decision were Catholics, who disapproved of the decision by a margin of 56 to 40 percent. This was hardly surprising, in light of the fierce legislative battles that had preceded Roe and that had been dominated by Catholic opposition. Within days of the decision, thousands of telegrams and letters of protest from Catholics began pouring into the Court, many of them from Catholic school students denouncing the justices as “murderers” and “butchers.” The vast majority were addressed either to Justice Blackmun, as author of the opinion, or to Justice Brennan, as the Court’s only Catholic justice. Some went so far as to call for Brennan’s excommunication from the Church. Many of the letters to Justice Blackmun invoked God’s wrath and attacked him as “a baby killer.” Blackmun noted that he had “never before been so personally abused and castigated.” For the next several years, antiabortion picketers, often carrying ugly placards, picketed Blackmun and Brennan at all of their public appearances.
The campaign to overturn Roe v. Wade was officially underway.
Roe in Hindsight
In the years since Roe, even some observers who agreed that the Texas law was unconstitutional have charged that the Court in Roe went too far, too fast. They maintain that the Court should have invalidated the Texas law, because it allowed abortion only to save the life of the mother, but should have left the constitutionality of other restrictions on abortion to the future. They insist that the Court’s more ambitious approach unnecessarily ignited a torrent of destructive opposition. They maintain that, had the Court been more tentative in Roe, the issue of abortion might have worked itself out through the legislative process without the Court imposing its will on society. Justice Ruth Bader Ginsburg, for example, has consistently argued that, by venturing “too far in the change it ordered,” Roe “stimulated the mobilization of a right-to-life movement” and put an end to the legislative progress that was already underway.
Why did the Court in Roe eschew this more modest approach? Why did it reach out beyond what was necessary to decide the case before it and address such issues as trimesters, viability, and medical regulations? Given that public opinion clearly supported the right of a woman to terminate an unwanted pregnancy, why did the justices feel the need to move so far, so fast? If the state legislatures would eventually have reached the same outcome themselves, shouldn’t the Court have let the issue percolate through the political process and addressed the constitutional questions in a more incremental manner, one by one, as they arose over time?
At least two considerations help explain why the Court moved as boldly as it did. First, and perhaps most obviously, it was clear by 1973 that, despite the state of public opinion, most legislatures were unlikely to act on the majority view anytime soon. Only four states had enacted an approach similar to the one embraced in Roe; none had done so since 1970. The plain and simple fact is that by 1973, the power of determined, passionate, single-issue voting had effectively frozen the legislative process. It was clear by 1973 that any further progress in the state legislatures was likely to be slow, painful, and halting, at best.
Second, although patience may be a virtue in most circumstances, it is not necessarily a virtue when legislative paralysis denies millions of Americans a fundamental constitutional right and causes as many as one million women each year to have to resort to dangerous, degrading, and illegal back-alley abortions. It must have seemed clear to the justices that the option of sitting back and patiently letting the state legislatures dither over these issues for five, 10, or 20 years was not a responsible option.
Whatever the reason, or combination of reasons, for the Court’s decision to act as decisively as it did in Roe, it is clear that the justices in Roe intended to settle the abortion issue then and there, once and for all.
It turned out not to be that simple.