Roe vs. Wade: A Divisive Decision

By Olivia Z. '24

January 22, 2020 marked the 48th anniversary of the Supreme Court ruling on Roe v. Wade, a significant landmark in the history of abortion legislation and women’s reproductive rights in the United States. There is still contention surrounding the legal status of abortion today, just as there was in 1857, when abortion first came into legal questioning. At this time, there was no regulation on abortion before detectable fetal movement. Then, the American Medical Association began campaigning against abortion unless the pregnancy endangered the mother’s life, claiming that it was immoral to take the life of a fetus. With so much debate surrounding the legality of abortion still ongoing, it is now more important than ever to understand the events that have led the United States to its current status of abortion legailty. 

By 1880, all U.S. states passed legislation criminalizing abortion. While certified physicians sometimes offered illegal abortions, they were subject to prosecution for doing so, making this practice risky. Women who had abortions were rarely prosecuted, but often subpoenaed and forced to act as witnesses in cases against their doctors, leading to public humiliation for the women. Forced underground by criminalization, thousands of illegal abortions were performed by unlicensed individuals with no knowledge of female anatomy. Consequently, the women receiving them faced undeniable risk including death.

After nearly a century of dangerous underground procedures, the American Law Institute began drafting a proposal in 1959 to make abortion legal in the cases of rape, incest, or threat to the woman’s health. Some Americans believed women should have complete freedom to choose whether or not to undergo an abortion. Many abortion opponents, on the other hand, would cite religious ideals; particularly, the Catholic Church worked for years to restrict abortion and make it illegal. Some also cited the Declaration of Independence as the reason abortion should be criminalized, based upon the phrase "Everyone has the right to life, liberty, and security of person.” Pro-life sentiment argued that abortion ignores a fetus’s right to life and therefore violates the Declaration. However, many pro-choice people state that  this idea ignores that the same phrasing should likely be read to include the “security of person” guaranteed to a pregnant woman.  

In 1971, a woman named Norma McCorvey, known as “Jane Roe” to the court, filed a lawsuit against the attorney general of Texas, Henry Wade, asserting that the criminalization of abortion in Texas was unconstitutional. When the case reached the US Supreme Court, the prosecution argued that the law against abortions was a breach of liberty. In an unprecedented victory for women seeking autonomy over their bodies, the Supreme Court ruled that  during a woman’s first trimester, the state could not regulate abortion, and during the second semester, the state could regulate abortion, but not illegalize it. After the start of the third trimester (the point at which a fetus could survive outside of the womb), each state would be able to decide whether or not a woman could retain the right to an abortion. 

Although the court intended that this ruling should strike a balance between both sides, many people were still not satisfied. At its root, the contention around the legislation of abortion rights lies in the complexity of legislating morality and what is fundamentally a women’s health issue. In 1857 when the issue was first open to legislation, US federal governing bodies consisted entirely of male lawmakers. And, although the population of the United States has remained around 51% female over time, in the nearly 165 years since abortion came into question, slow progress has been made in government, with female legislators making up only 27% of congress today. There is no similar legal precedent for restrictions of any male reproductive medical procedures in US law.

Today, abortion seems to be a right-versus-left issue. According to a September 2020 NBC poll, only 12% of Democrats support overturning Roe v. Wade, while 50% of Republicans believe it should be overturned. While this indicates higher dissatisfaction among Republicans, it bears notice that even Republicans are split over the issue and, overall, a majority of 66% of American adults believe that the ruling should not be overturned. While abortion continues to be one of the most divisive political issues in the United States, a slow shift towards viewing the issue as a medical procedure inherent to a woman’s autonomy over her own body as opposed to a moral issue is likely a step towards more freedom for women. But, so long as it remains a moral issue in popular opinion, the controversy surrounding the issue will not be settled anytime soon.