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Taking a look back at Roe v. Wade

As the Supreme Court considers a Mississippi case that could impact the future of Roe v. Wade, here's what to know about that 1973 decision.
Credit: ASSOCIATED PRESS
Norma McCorvey, the "Jane Roe" of Supreme Court's Roe v. Wade decision, is seen in 1990. (AP Photo)

INDIANAPOLIS — Half a century of constitutional protections for women seeking abortions could soon be overturned as the Supreme Court plans to consider a Mississippi law that bans abortion after 15 weeks of pregnancy in the Dobbs v. Jackson Women's Health Organization case.

The decision in that case could have the ability to make changes to Roe v. Wade, a Supreme Court case from the 1970s,  which rules women's access to an abortion is a constitutional right. 

Although we're hearing about Roe v. Wade a lot more now, there can be some misinformation about what the nation's highest court actually decided in their 1973 landmark decision. 

Here's what went down in that case, and a brief history of legalized abortion in the United States you'll need to know in the coming weeks. 

1. Before Roe v. Wade, a woman's access to abortions largely depended on which state she lived in. Illegal or self-induced procedures were also more common. 

The Centers for Disease Control and Prevention estimates that in 1972 alone — the year before the Roe v. Wade ruling — 130,000 women obtained illegal or self-induced procedures.

Thirty-nine women died. 

From 1972 to 1974, the mortality rate due to illegal abortion for nonwhite women was 12 times that for white women.

A woman's ability to receive an abortion varied across the country. 

Credit: AP
FILE - A group of anti-abortion protesters pray together in front of the U.S. Supreme Court, Dec. 1, 2021, in Washington, as the court hears arguments in a case from Mississippi, where a 2018 law would ban abortions after 15 weeks of pregnancy, well before viability. As the Supreme Court court weighs the future of the landmark 1973 Roe v. Wade decision, a resurgent anti-abortion movement is looking to press its advantage in state-by-state battles while abortion-rights supporters prepare to play defense. (AP Photo/Andrew Harnik, File)

According to an analysis by the Alan Guttmacher Institute, an estimated 50,000 women traveled more than 500 miles to obtain a legal abortion in New York City; nearly 7,000 women traveled more than 1,000 miles, and some 250 traveled more than 2,000 miles, from places as far as Arizona, Idaho and Nevada.

That institute also found the year before the Supreme Court's decision in Roe v. Wade, just over 100,000 women left their own state to obtain a legal abortion in New York City. 

In the 1950s and 1960s, the estimated number of illegal abortions ranged from 200,000 to 1.2 million per year, according to the Guttmacher Institute.

2. For much of United States history, abortion wasn't a hot-button issue like it is today. 

People used plants like black root and cedar root to herbally induce abortions long before European settlers arrived in the colonies. 

In colonial America, the legality of abortion depended on which European colony settled that particular area. In British colonies, abortions were legal if they were performed prior to quickening — or fetal movement that usually occurs around five months.

In the Spanish and Portuguese colonies, abortion was largely illegal.

Credit: AP
FILE - The Supreme Court is seen on the first day of the new term as activists demonstrate on the plaza, in Washington, Monday, Oct. 4, 2021. Arguments are planned for December challenging Roe v. Wade and Planned Parenthood v. Casey, the Supreme Court's major decisions over the last half-century that guarantee a woman's right to an abortion nationwide. (AP Photo/J. Scott Applewhite, File)

Enslaved people in the United States had no legal right over their bodies. 

Enslaved women were expected to maintain slave populations for centuries, and expected to perform forced reproductive labor.  African-American enslaved women were systemically raped or forced to make children with other slaves, overseers, or master. 

Once born, the baby was considered the property of a master and not the woman herself. For enslaved women, contraception became an ultimate form of resistance

There is documentation enslaved women used cotton root and peacock flower as ways to take their reproductive health into their own hands. 

The country's first laws regarding abortion centered more on the distribution of poisonous medicine that would be used during procedures, not the overall morality of abortions.  

By the 1960s, states began reforming their strict anti-abortion laws.

When the Supreme Court made abortion legal nationwide, abortions were already available in 17 states under a range of circumstances beyond those necessary to save a woman's life according to the Guttmacher Institute. 

3. Roe was a pseudonym for Norma McCorvey, a pregnant single mother of two who wanted an abortion in the state of Texas. 

Norma McCorvey, known in court documents as Jane Roe, filed a lawsuit against the attorney general of Texas, Henry Wade, in 1971. 

McCorvey was a mother of two from Texas. She struggled with substance abuse, and one of her children had already been adopted after they were born. Her firstborn was raised primarily by her mother.

Credit: ASSOCIATED PRESS
Norma McCorvey, the "Jane Roe" of Supreme Court's Roe v. Wade decision, is seen in 1990. (AP Photo)

By the time she got pregnant a third time in 1969, McCorvey did not feel prepared or ready to have another child. 

At the time, Texas outlawed any type of abortion, aside from cases which threatened the mother's life. 

McCorvey argued that was unconstitutional, and sued Dallas County district attorney Henry Wade, who had to enforce that law. 

Wade was well known at the time for his involvement in the JFK assassination investigation. 

By the time the Supreme Court handed down its decision in her favor, she was forced to go through with the pregnancy. Her child was adopted.

Later in life, McCorvey became a vocal advocate within the pro-life movement. But shortly before her death in 2017, McCorvey claimed she only did that to collect money from pro-life organizations in the documentary "AKA Jane Roe."

4. Sarah Waddington, one of Roe's lawyer, was just 26 years old when she argued the case in front of an all-male Supreme Court. 

Waddington, who went on to serve three terms in the U.S. House of Representatives, had not turned 30 yet when she argued the case. 

Upon graduation, she joined a cohort of graduates from University of Texas who were researching ways to go after anti-abortion policy.

Waddington connected with McCorvey, and the Supreme Court heard Roe v. Wade Dec. 13, 1971. 

Roe was also represented by attorney Sarah Coffee. 

Credit: AP
A signs hangs outside the Whole Women's Health Clinic in Fort Worth, Texas, Wednesday, Sept. 1, 2021. A Texas law banning most abortions in the state took effect at midnight, but the Supreme Court has yet to act on an emergency appeal to put the law on hold. If allowed to remain in force, the law would be the most dramatic restriction on abortion rights in the United States since the high court's landmark Roe v. Wade decision legalized abortion across the country in 1973. (AP Photo/LM Otero)

5. Texas' case was based on the following arguments: 

  • States have an interest in safeguarding health, maintaining medical standards, and protecting prenatal life.
  • A fetus is a "person" protected by the 14th Amendment.
  • Protecting prenatal life from the time of conception is a compelling state interest.

6. Roe's side presented other points: 

  • The Texas law invaded an individual's right to "liberty" under the 14th Amendment.
  • The Texas law infringed on women's rights to marital, familial, and sexual privacy guaranteed by the Bill of Rights.
  • The right to an abortion is absolute — women are entitled to end a pregnancy at any time, for any reason, in any way they choose

7 . Roe v. Wade passed in a 7-2 vote on Jan. 22, 1973.

The Supreme Court recognized that a woman's right to decide whether to continue her pregnancy was protected under the constitutional provisions of individual autonomy and privacy. 

Supreme Court Justices Harry A. Blackmun, William J. Brennan, Lewis F. Powell Jr., and Thurgood Marshall made up the majority vote.

Supreme Court Justices Warren Burger, William Orville Douglas, Potter Stewart concurred.

Supreme Court Justices William Rehnquist and Byron White held the minority decision. 

8. Justices cited the 14th Amendment, and parts of the Ninth Amendment, in their ruling. 

The court decided in a 7-2 ruling that a woman's right to an abortion was implicit in a woman's right to privacy under the 14th amendment of the U.S. Constitution.

As Justice Harry A. Blackmon wrote in the court's majority opinion, "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...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."

9. Roe v. Wade did not technically, broadly legalize abortion at all stages of pregnancy across the United States. 

Instead, it ruled access to a safe abortion was a constitutional right and put regulations on abortion based around each trimester.

The Roe v. Wade decision gave a woman the right to an abortion during the entirety of the pregnancy, and defined different levels of state interest for regulating abortion in the second and third trimesters.

According to the Center for Reproductive Rights, the opinion was grounded on four constitutional pillars: (1) the decision to have an abortion was accorded the highest level of constitutional protection like any other fundamental constitutional right, (2) the government had to stay neutral, legislatures could not enact laws that pushed women to make one decision or another, (3) in the period before the fetus is viable, the government may restrict abortion only to protect a woman's health, (4) after viability, the government may prohibit abortion, but laws must make exceptions that permit abortion when necessary to protect a woman's health or life. 

Forty-six states had to change their abortion laws in the aftermath of Roe v. Wade. 

10.  Roe v. Wade gave a legal definition to something called fetal viability, which is important to note for future cases.  

In handing out the court's majority opinion — that's a judicial opinion decided by more than half the judges deciding a case — the Supreme Court gave a legal framework to fetal viability. 

In the first trimester of pregnancy, the state may not regulate the abortion decision, only the pregnant woman and her attending physician can make that decision. 

In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. 

In the third trimester, once the fetus reaches the point of "viability," a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.

Credit: AP
FILE - A woman holds a poster that reads "Abortion is Healthcare" as abortion rights advocates and anti-abortion protesters demonstrate in front of the U.S. Supreme Court, Dec. 1, 2021, in Washington, as the court hears arguments in a case from Mississippi, where a 2018 law would ban abortions after 15 weeks of pregnancy, well before viability. As the Supreme Court court weighs the future of the landmark 1973 Roe v. Wade decision, a resurgent anti-abortion movement is looking to press its advantage in state-by-state battles while abortion-rights supporters prepare to play defense. (AP Photo/Andrew Harnik, File)

The current case before the court, Dobbs v. Jackson Women's Health Organization, concerns a Mississippi law that bans abortion after 15 weeks of pregnancy. 

Roe v. Wade allows states to regulate, but not ban abortion, up until the point of fetal viability, at roughly 24 weeks.  

Today, when people talk about challenges to Roe v. Wade, viability is the thing that is most challenged. 

11. Roe v. Wade faced several challenges in the years since it was passed. 

In Planned Parenthood of Southern Pennsylvania vs. Casey, the court established restrictions on abortions are unconstitutional if they place "undue burden" on women seeking abortions before a fetus is viable. 

In Whole Woman's Health v. Hellerstedt from 2016, the Court reiterated its decision in the Casey case to strike down two provisions of a Texas law requiring abortion clinics to meet the standards of ambulatory surgical centers and abortion doctors to have admitting privileges at a nearby hospital.