In Part 1, we learned how two young attorneys, Sarah Waddington and Linda Coffee, came to represent Jane Roe, a pseudonym for Norma McCorvey, who was seeking an abortion in Texas in 1970, when abortion was prohibited by a law dating back to the mid 19th century. As the basis of their strategy in suit that they’d be filing in US District Court against Dallas district attorney, Henry Wade, Waddington and Coffee looked to Griswold versus Connecticut, a 1965 SCOTUS decision that married couples had a Constitutional right to use contraceptives. The decision had been reasoned based on “zones of privacy” provided by the Bill of Rights, specifically, the 1st, 3rd, 4th, 5th, and 9th Amendments, and on the due process clause of the 14th Amendment applying such privacy protection to the states. Dovetailing with the legal framework set by the Griswold decision, Americans had been hearing about the thousands of babies born with horrible deformities to mothers who had taken thalidomide, an anti-nausea drug that had been licensed in the UK from 1958 to 1961 and that we now know caused birth defects, only because, to save money, it was formulated as a mixture of its two mirror image forms (one of which causes the birth defects, the other which produced the desired effect). Also, the 1960s had seen an epidemic of rubella virus, causing congenital rubella syndrome, an awareness of which had led to an increase in the number of abortions in states where it was legal, and, for those who could pay, also where it was not legal. I recall my mother mentioning once how she had developed a low grade fever, or a sore throat, while pregnant in the 1960s. It wasn’t rubella, but, concerned that it might be —for the rubella vaccine, that we are so fortunate to have now, would not become available until the end of the decade— she asked her obstetrician what she could do in such a case. This was in Connecticut, where abortion had been illegal since the year 1821. And while New York State was just 15 minutes away by car, New York City just one express stop away by commuter train, New York would not liberalize its abortion laws until 1970 (at which point, more than 100 Connecticut women would cross the border for legal abortions within 45 days of the new law going into effect). But her obstetrician said something like, “Don’t worry. If it’s rubella, we’ll take care of you,” probably with a little wink.
Speaking of that anti-abortion law of 1821, upon which Connecticut had expanded in the year 1860, followed in 1879 by the passage of legislation (co-authored by P. T. Barnum, the circus showman) criminalizing the prescription and use of contraception, leading ultimately to the 1965 Griswold v. Connecticut milestone case, Waddington and Coffee also knew that laws against abortion had been a fairly recent development. Not only had the Connecticut law of 1821 been the earliest, but most 19th century abortion laws that had emerged made distinctions between early and advanced stages of pregnancy, at least in the crude ways of the era, such as before versus after “quickening” (you can feel the fetus move). Otherwise, prohibitions against abortion generally had not emerged until the early 20th century. This was important, because abortion opponents of the early 1970s claimed that such rules had been common since the birth of the United States, implying that the freedoms availed by the Constitution could not include the right to an abortion.
In the US Court for the Northern District of Texas, Waddington and Coffee won their case, in the sense that the court declared that the 19th century Texas statute was unconstitutional. This lower federal court consisted of three judges, whose decision emphasized the 9th Amendment, which states that any rights not mentioned specifically in the Constitution are retained by the people. However, the court did not grant an injunction against enforcement of the old law, so McCorvey was forced to carry her pregnancy to term. Also, since the Dallas district attorney, Henry Wade, vowed to continue prosecuting doctors who performed abortions under that old statute, Coffee and Waddington appealed and took the case all the way to the SCOTUS by 1971.
While initial discussions among the SCOTUS justices revealed a consensus that the laws against abortion around the country were too harsh, the topic didn’t excite the all male court, so Chief Justice Warren Burger assigned the research for the case to the newest guy on the court, Justice Harry Blackmun. Not so much on the radar screen was the fact that Blackmun had personal experience with the issue. In college, his daughter had become pregnant, causing her to drop out and marry early, only to suffer a spontaneous abortion (miscarriage) several weeks later. Moreover, Blackmun had served as general counsel for the Mayo Clinic in Minnesota for many years, so he was somebody who took the authority of doctors and scientists seriously. There was no Internet in 1971, so Blackmun traveled to the Mayo Clinic to do his research, spending time in the library and talking with doctors and scientists, and even historians, which helped him learn that there was no longstanding tradition of governments criminalizing abortion. Yes, abortion was illegal in certain places in ancient times, but often this was about property rights of the father. Even looking to ancient Greece, source of the Hippocratic Oath that condemned abortion, Blackmun found that this idea had been a minority opinion among ancient physicians. Furthermore, religious discussions throughout many centuries, notably in Judaism and Islam, recognized the progressive nature of embryonic and fetal development. Though unaware of the biology, humans putting thought into the matter over the century realized that you just don’t become a sentient being, all of a sudden, at the moment of conception.
More directly relevant to the United States, Blackmun found that English common law carried no longstanding tradition to prohibit abortion going back many centuries. He found no grounds for antiabortion laws in Colonial America and in the early United States, and that antiabortion statutes did not ramp up in the US until the early 20th century. In tune with Waddington and Coffee and with the District of Northern Texas federal court, Blackmun determined the right to privacy provided by the Constitution applied to abortion. In contrast with the district federal court that had emphasized the 9th Amendment, Blackmun grounded his assessment on the 14th Amendment, the due process clause, but he also thought that there must be a balance between the mother’s privacy and the interest of the state to promote the health of the mother and the life of the fetus, and that the balance should shift as pregnancy progressed toward delivery. Based on his discussions with scientists and doctors, Blackmun recommended that the SCOTUS consider pregnancy in terms of a trimester framework, the first trimester being a time when the state should have no say over a woman’s decision to end a pregnancy, other than assuring that abortions are performed only by licensed providers, because abortions were generally safe during this period, and because a first trimester embryo/fetus was not viable, meaning that it could not survive outside the mother. Initially, he suggested the onset of the second trimester as a possible point from which restrictions could be allowed, but discussions with the other justices raised the prospect of the early third trimester as the cutoff point. After further research at the Mayo Clinic, the onset of the third trimester, emerged as the appropriate cutoff point, because fetal viability depended mostly on the lungs, which typically were not mature enough to maintain life in preterm infants born earlier than the 28th week. Today we know that this has to do with anatomic development and with surfactant, a soapy substance produced by certain lung cells, called type 2 pneumocytes. Lung maturity is adequate to support life when the composition and quantity of surfactant keeps the alveoli (air sacs) stretchy enough to allow the exchange of gases between air and blood.
On January 22, 1973, these considerations led to the famous 7-2 Roe v. Wade decision, striking down the old Texas statute, along with all other anti-abortion laws throughout the United States. Women now had the right to choose, but the decision acted as a lightning rod for opponents of abortion who began rallying around the goal of criminalizing abortion once again. Calling themselves “pro-life”, they soon got the Hyde Amendment passed, denying abortion to women dependent on Medicaid.
Then, in 1982, the state of Pennsylvania enacted a law putting various stumbling blocks in the pathway of any Pennsylvania woman seeking pregnancy termination. Within ten years, the Pennsylvania law would be challenged in a new SCOTUS case, Planned Parenthood of Southeast Pennsylvania versus Casey, which we’ll explore in Part 3.