roe v wade persuasive speech

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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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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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Roe v. Wade, 410 U.S. 113 (1973)

A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception.

The law in Texas permitted abortion only in cases where the procedure was necessary to save the life of the mother. When Dallas resident Norma McCorvey found out that she was pregnant with her third child, she tried to falsely claim that she had been raped and then to obtain an illegal abortion. Both of these efforts failed, and she sought the assistance of Linda Coffee and Sarah Weddington, who filed a claim using the alias Jane Roe for McCorvey. (The other named party, Henry Wade, was the District Attorney for Dallas County.) McCorvey gave birth to her child before the case was decided, but the district court ruled in her favor based on a concurrence in the 1965 Supreme Court decision of Griswold v. Connecticut, written by Justice Arthur Goldberg. This concurrence had found that there was a right to privacy based on the Ninth Amendment of the Constitution. However, the district court refrained from issuing an injunction to prevent the state from enforcing the law, leaving the matter unresolved.

• Linda Coffee (plaintiff)
• Sarah Weddington (plaintiff)
• Jay Floyd (defendant)

Issue: Whether a plaintiff still has standing to bring a case based on her pregnancy once she has given birth. Holding: Yes. The mootness doctrine does not bar her case from being heard, even though this individual plaintiff's position would no longer be affected, and she did not have an actual case or controversy. This situation fits within the exception to the mootness rule that covers wrongs that are capable of repetition yet evading review. Most cases are not heard through to appeal in a period shorter than a pregnancy, so strictly applying the mootness doctrine would prevent these issues from ever being resolved.

• Harry Andrew Blackmun (Author)
• Warren Earl Burger
• William Orville Douglas
• William Joseph Brennan, Jr.
• Potter Stewart
• Thurgood Marshall
• Lewis Franklin Powell, Jr.

The majority found that strict scrutiny was appropriate when reviewing restrictions on abortion, since it is part of the fundamental right of privacy. Blackmun was uninterested in identifying the exact part of the Constitution where the right of privacy can be found, although he noted that the Court had previously located it in the Fourteenth rather than the Ninth Amendment. The opinion applied a controversial trimester framework to guide judges and lawmakers in balancing the mother's health against the viability of the fetus in any given situation. In the first trimester, the woman has the exclusive right to pursue an abortion, not subject to any state intervention. In the second trimester, the state cannot intervene unless her health is at risk. If the fetus becomes viable, once the pregnancy has progressed into the third trimester, the state may restrict the right to an abortion but must always include an exception to any regulation that protects the health of the mother. The Court, which included no female Justices at the time, appears to have been confused about the differences between the trimester framework and viability, which are not necessarily interchangeable. It is interesting to note that Blackmun was particularly invested in this case and the opinion, since he had worked at the Mayo Clinic in Minnesota during the 1950s and researched the history of abortions there. This may explain why he framed the opinion largely in terms of protecting the right of physicians to practice medicine without state interference (e.g., by counseling women on whether to pursue abortions) rather than the right of women to bodily autonomy.

• Byron Raymond White (Author)
• William Hubbs Rehnquist

White criticized the majority's arbitrary choice of a rigid framework without any constitutional or other legal foundation to support it. He believed that this aggressive use of judicial power exceeded the Court's appropriate role by taking away power that rested with state legislatures and essentially writing laws for them. White argued that the political process was the appropriate mechanism for seeking reform, rather than letting the Court decide whether and when the mother should be a higher priority than the fetus.

• William Hubbs Rehnquist (Author)

Rehnquist expanded on the historical elements of White's argument. He researched 19th-century laws on abortion and the status of the issue at the time of both the Founding and the Fourteenth Amendment. His originalist approach led him to conclude that state restrictions on abortion were considered valid at the time of the Fourteenth Amendment, so its drafters could not have contemplated creating rights that conflicted with it.

Concurrence

• William Orville Douglas (Author)

More concerned with doctrinal sources than Blackmun, Douglas pointed out more forcefully that the Fourteenth Amendment rather than the Ninth Amendment is the appropriate source of the right of privacy.

• Potter Stewart (Author)

Stewart argued that the right of privacy was specifically rooted in the Due Process Clause of the Fourteenth Amendment.

• Warren Earl Burger (Author)

Burger felt that two physicians rather than one should be required to agree to a woman's request for an abortion.

The Court was praised in many circles for its progressive attitude toward evolving social trends, even though the decision was framed in paternalistic language and seemed more focused on protecting physicians than women. However, many commentators have viewed its decision as a prime example of judicial "activism," a term that refers to when the Court is seen to infringe on the authority of other branches of government.. A magnet for controversy to the current day, Roe has been challenged consistently and lacks support from many current members of the Court. The trimester framework proved less workable than the majority had hoped, and decisions such as Planned Parenthood v. Casey have eroded what initially seemed like a sweeping statement in favor of women's rights. Many states that oppose Roe have enacted laws that will go into effect in the event that it is overturned.

U.S. Supreme Court

Roe v. Wade

Argued December 13, 1971

Reargued October 11, 1972

Decided January 22, 1973

410 U.S. 113

A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and Hallford.

1. While 28 U.S.C. § 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory relief alone, review is not foreclosed when the case is properly before the Court on appeal from specific denial of injunctive relief and the arguments as to both injunctive and declaratory relief are necessarily identical. P. 123.

2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.

(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her suit. Litigation involving pregnancy, which is "capable of repetition, yet evading review," is an exception to the usual federal rule that an actual controversy

must exist at review stages, and not simply when the action is initiated. Pp. 124-125.

(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no federally protected right not assertable as a defense against the good faith state prosecutions pending against him. Samuels v. Mackell , 401 U. S. 66 . Pp. 125-127.

(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to present an actual case or controversy. Pp. 127-129.

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term. Pp. 147-164.

(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. Pp. 163, 164.

(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. Pp. 163, 164.

(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 necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164-165.

4. The State may define the term "physician" to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. P. 165.

5. It is unnecessary to decide the injunctive relief issue, since the Texas authorities will doubtless fully recognize the Court's ruling

that the Texas criminal abortion statutes are unconstitutional. P. 166.

314 F. Supp. 1217 , affirmed in part and reversed in part.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C.J., post, p. 410 U. S. 207 , DOUGLAS, J., post, p. 209, and STEWART, J., post, p. 167, filed concurring opinions. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 221. REHNQUIST, J., filed a dissenting opinion, post, p. 171.

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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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Article contents

• Roe v. Wade
• Mary Ziegler Mary Ziegler College of Law, Florida State University
• https://doi.org/10.1093/acrefore/9780199329175.013.449
• Published online: 27 July 2017

Decided by the Supreme Court in 1973, Roe v. Wade legalized abortion across the United States. The 7-2 decision came at the end of a decades-long struggle to reform—and later repeal—abortion laws. Although all of the justices understood that Roe addressed a profoundly important question, none of them imagined that it would later become a flashpoint of American politics or shape those politics for decades to come.

Holding that the right to privacy covered a woman’s choice to terminate her pregnancy, Roe and its companion case, Doe v. Bolton , struck down many of the abortion regulations on the books. The lead-up to and aftermath of Roe tell a story not only of a single Supreme Court decision but also of the historical shifts that the decision shaped and reflected: the emergence of a movement for women’s liberation, the rise of grassroots conservatism, political party realignment, controversy about the welfare state, changes to the family structure, and the politicization of science. It is a messy and complicated story that evolved parallel to different ideas about the decision itself. In later decades, Roe arguably became the best-known opinion issued by the Supreme Court, a symbol of an ever-changing set of beliefs about family, health care, and the role of the judiciary in American democracy.

• pro-life movement
• pro-choice movement

Decided by the Supreme Court in 1973 , Roe v. Wade legalized abortion across the United States. Roe struck down a Texas law banning abortions unless a woman’s life was in danger, while a companion case, Doe v. Bolton , invalidated a Georgia statute that heavily regulated access. Even from a purely legal standpoint, Roe was a major case. In a single opinion, the justices expanded the ideas of constitutional privacy and equality, struck down over thirty state laws, and concluded that the fetus was not a person as defined by the Fourteenth Amendment. But as it lives on in the public imagination, Roe v. Wade refers not only to what the Court held in 1973 but also to the many meanings Americans later projected onto the decision in the decades to come.

Within months of the Court’s decision, scholars debated the merits of the method the Roe Court used to reach a decision. Over time, attacks on the decision multiplied. Ruth Bader Ginsburg, a future justice of the Supreme Court, contended that the Court’s decision stopped the momentum of the abortion-rights cause by focusing “on a medically approved autonomy idea, to the exclusion of a constitutionally based sex equality perspective.” 1 In 1992 , Justice Antonin Scalia articulated the common view that Roe “destroyed the compromises of the past, rendered impossible the compromises of the future, [and] fanned into life an issue that has inflamed our national politics . . . ever since.” 2 Critics took issue with more than the reasoning of the Court’s decision. Like Scalia, law professors and historians concluded that Roe had eliminated consensus solutions on abortion and polarized gender politics more broadly.

But the political backlash to Roe was more gradual and complex than the firestorm described by Ginsburg and Scalia. Before the Supreme Court intervened, the social movements contesting the abortion issue already championed diametrically opposed constitutional rights. In the early 1970s, Republican leaders tried to make abortion a wedge issue, escalating a conflict that was already unfolding in states considering abortion-law reform. After Roe , the antiabortion movement became better organized, but the bitter stalemate described by some scholars and judges did not take hold until the later 1970s. Even when the abortion debate became extremely polarized, Roe alone was not to blame. Political party realignment, the emergence of the religious right, and the popularization of neoliberalism and small-government politics all raised the stakes of the debate.

Disentangling the myth and reality of Roe v. Wade offers an important window into the evolution of abortion politics and the broader changes to the nation in the closing decades of the 20th century . Better understanding Roe also illustrates how a judicial decision can become a canvas for beliefs, values, and historical events far removed from anything ever considered by the Court.

While Americans always terminated pregnancies, the political controversy now associated with it began relatively recently. During the 18th and 19th centuries , states did not criminalize the termination of pregnancy before “quickening,” the time when fetal movement could be detected. By the mid- 19th century , abortion had become a booming business, led by well-known practitioners like New York’s Madame Restell. The visibility of abortion, together with the murky distinctions among doctors, midwives, and other health providers, inspired a campaign to criminalize the procedure. Led by members of the American Medical Association, physician reformers worked to change ideas about when human life began and when abortion was moral. The physicians’ campaign came at a time when moral crusaders, Anthony Comstock among them, worked to introduce federal legislation to curb the spread of birth control and pornography. 3

By 1880 , every state had introduced criminal abortion laws, making narrow exceptions when the procedure was needed to save a woman’s life. Enforcement of the laws was uneven and difficult to predict. Physicians held varying ideas about when a medical condition justified abortion, and this uncertainty shaped enforcement of laws. Who faced punishment for criminal abortion was also complex. Although some state laws left open the possibility that women seeking abortion could face prosecution as an accomplice or conspirator, prosecutors generally targeted those who performed abortions, particularly when a woman died during a procedure. For some women forced to testify in court and cooperate with law enforcement, intense investigations, publicity, and exposure effectively replaced formal legal punishments. 4

By the 1930s and 1940s, improvements in obstetric and gynecological care disrupted the status quo. As fewer physicians could justify abortion as a means of saving a woman’s life, questions about the meaning of therapeutic exceptions took on new urgency. Hospitals created committees to limit the practice of therapeutic abortion. Family-planning organizations like the Planned Parenthood Federation of American hosted conferences on abortion, pushing for a new model law on the subject. In 1959 , the American Law Institute (ALI), a group of distinguished legal scholars and judges, released a draft proposal that would make abortion legal in cases of fetal abnormality, rape or incest, or a threat to the woman’s health. 5

In 1962 , when the ALI endorsed a final version of the recommendations as part of the Model Penal Code, Shirley Finkbine’s story made abortion front-page news. Finkbine learned that thalidomide, a drug she had taken while pregnant, could lead to severe birth defects. After failing to get an abortion in Arizona, she eventually traveled to Sweden to terminate her pregnancy. Her saga captured the public imagination, and in 1962 , a Gallup poll found that a majority of respondents believed that Finkbine had done the right thing. 6

In the early 1960s, an epidemic of German measles reinforced concerns about the threat of fetal abnormalities. Women exposed in the early months of pregnancy stood a high chance of bearing a child with fetal defects, and experts predicted that as many as 20,000 children would be born with serious disabilities as a result of the outbreak. Media coverage of “rubella babies” helped to change public understandings of abortion. For the first time, many believed that anyone could have a reason to seek out the procedure, including white, middle-class women. 7

Anxieties about German measles came at a time when attitudes about birth control were changing. After World War II, a baby boom convinced some policymakers that the world was on the brink of a population explosion. The population-control movement drew a diverse group of supporters. Cold War hawks worried that out-of-control growth would tip the balance in the conflict with the Soviet Union. Advocates of eugenic legal reform saw a reduction in the quantity of the population as the most politically realistic way to improve its quality. 8

Religious opposition to contraception had also begun to fade. Protestant denominations gradually revised their positions on contraception. Although the Catholic Church remained steadfast in its opposition, lay believers took a different view. Conventionally, believers saw opposition to birth control and abortion as interrelated. For this reason, growing public acceptance of contraception augured well for those seeking to legalize abortion.

While the climate for reform seemed promising, the formal push for it took shape slowly. In 1964 , Dr. Alan Guttmacher of Planned Parenthood organized the Association for the Study of Abortion as an educational organization. With only twenty members, the group primarily lent prestige to the unfolding in the states. In 1967 , Colorado became the first state to adopt a version of the ALI bill. By 1972 , thirteen states had followed.

Nevertheless, the reform laws pleased almost no one. The exceptions carved out by the ALI were vague and unpredictable. Afraid of civil lawsuits and jail time, doctors in reform states took an extremely cautious approach. Some responded by demanding the complete repeal of abortion restrictions, including doctors and population controllers. Whereas some physicians saw legal abortion as a matter of public health, population controllers argued that legalizing the procedure was necessary to conserve scarce national resources.

The repeal movement also struck a chord with the growing women’s movement. The National Organization for Women (NOW), a major feminist organization, demanded the repeal of abortion restrictions in 1968 . Feminists joined in calls for the right of a woman to control her own body and connected legalization to women’s ability to participate fully in the political, social, and economic life of the nation. Supporters of women’s rights also influenced the decision of other major organizations to endorse repeal, including Planned Parenthood in 1968 and NARAL (then the National Association for the Repeal of Abortion Laws) in 1969 .

At the time repeal won support, conflict about abortion had already escalated. In the 1930s and 1940s, the Catholic Church wove concern about the termination of pregnancy into its campaign against birth control. By the 1950s, Catholic doctors and activists moved beyond religious arguments, insisting that legal abortion would violate the constitutional rights of the unborn child. As more states adopted a version of the ALI, abortion opponents changed course. Self-proclaimed right-to-lifers developed a single-issue approach and emphasized the right to life. Movement members saw these arguments as advantageous because some state courts had compensated parents for fetal injuries. Other pro-lifers took inspiration from Supreme Court decisions recognizing rights that were only implied in the text of the Constitution. A rights-based strategy had a broader appeal, helping the right-to-life movement win the support of some Protestants, Mormons, and Jews. 9

The outcome of political struggles over abortion remained unpredictable throughout the early 1970s. In addition to the states that adopted the ALI model, four others eliminated virtually all restrictions on the procedure. Right-to-lifers mobilized to reintroduce restrictions in New York following repeal in 1970 . The effort failed only because of a veto by Governor Nelson Rockefeller. In 1972 , right-to-lifers succeeded in blocking a Michigan referendum that would have liberalized abortion access. National party politics also contributed to a deepening divide on the issue. California Republicans had experimented with using abortion as a wedge issue since 1970 , and two years later, strategists working for Richard Nixon hoped to use the issue to convince Catholics to abandon the Democratic Party. 10

Before the Court heard any argument, abortion politics had become sharply polarized. It was hard to determine who had the upper hand in the battles unfolding from state to state, but with the Roe decision, the course of the conflict would change.

Constitutional Foundations

The groundwork for the constitutional strategy that played out in Roe began with a challenge to Connecticut’s ban on contraceptive use by married couples. In 1961 , a first attempt to undo the law failed. In Poe v. Ullman , the Court saw no need to address the constitutionality of the law when it was never enforced. A local Planned Parenthood affiliate staged a violation of the law, ensuring that it would return to the Supreme Court. 11

In 1965 , in a seven-to-two decision, the Supreme Court in Griswold v. Connecticut agreed that the Connecticut law violated a fundamental constitutional right to privacy. Griswold did not spell out precisely where in the Constitution the right to privacy could be found. Emphasizing the importance of marriage, William O. Douglas’s majority held that text of the Constitution implied the existence of other important liberties. 12

Supporters of legal abortion hoped that the courts would apply the privacy right more broadly. In 1969 , during his prosecution for performing an illegal abortion, Dr. Milan Vuitch argued that the Washington, DC, ordinance under which he was prosecuted was unconstitutionally vague. Vuitch claimed that the law was so poorly written that doctors would not know ahead of time if they had committed a crime. Although the justices in United States v. Vuitch rejected his argument, reformers were heartened by the Court’s 1972 in Eisenstadt v. Baird . 13

That case involved a Massachusetts law limiting single people’s access to birth control. Rather than relying on the privacy strategy honed by repeal proponents, the Court found that Massachusetts had violated the Equal Protection Clause. Eisenstadt reasoned that there was no rational basis for denying single people access to birth control when married people did not face the same issue. William Brennan’s majority sent a hopeful signal to champions of abortion reform. “If the right to privacy means anything,” Brennan reasoned, “it is the right of the individual . . . to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child.” 14

The Court already had Roe before it when Eisenstadt came down. Roe addressed a Texas law allowing abortion only when necessary to save a woman’s life, while Doe involved a Georgia version of the ALI reform bill. While the justices did not easily reach a consensus about the Georgia law, there seemed to be a majority convinced that the Texas law was unconstitutional. Harry Blackmun circulated a majority holding that the law was unconstitutionally vague, but he was unhappy with the lukewarm response from his colleagues and narrowly convinced his colleagues to hold the case for re-argument. 15

When the case returned to the Court, the briefs submitted by the parties and amicus curiae put on display a wide a range of constitutional arguments about abortion. Americans United for Life, an antiabortion group, highlighted the harms that women supposedly experienced as a result of abortion, while the Planned Parenthood Federation of America laid out evidence of the safety of the procedure and the injuries attributable to back-alley abortions. Friend-of-the-court briefs emphasized that abortion undercut women’s interests in liberty, equality, and dignity. Antiabortion briefs pointed to the personhood of the fetus and identified a fundamental right to life in the Fourteenth Amendment.

The Court’s Decision

When the Court handed down Roe in January 1973 , the seven-to-two majority little resembled the draft Blackmun had circulated. Blackmun’s majority began with a history of attitudes toward abortion. Here, Roe emphasized that bans on abortion were recent—dating only to the 19th century . Blackmun also emphasized that major professional organizations, including the American Medical Association and the American Bar Association, had joined calls for legalization.

Roe next held that “[t]he right to privacy is . . . broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The majority stressed the injuries a woman could experience as the result of an unplanned pregnancy, reiterating that the decision belonged to “the woman and her responsible physician.” 16

The Court weighed several potential interests against this constitutional right. First, Roe considered whether the fetus should be considered a person under the Fourteenth Amendment. If the Court answered the question in the affirmative, then the unborn child would be entitled to legal rights, making legal abortion problematic. Canvassing other uses of the word “person” in the constitutional text, the Court concluded that the term applied only after birth.

Next, the Court asked whether the state had a compelling interest in protecting life from the moment of conception. Reasoning that medical, religious, and philosophical authorities had been unable to reach a consensus about when life began, Roe held that Texas could not override the woman’s constitutional rights by adopting one theory over another.

Insisting that the government still had important interests in regulating abortion, the Court set out a trimester framework that would apply to any regulation of abortion. In the first trimester, the state had to leave the decision to the woman and her physician. During the second trimester, laws could regulate abortion to protect women’s health. Only after viability, the point at which a child could survive outside the womb without medical intervention, could the state promote an interest in fetal life.

Doe and Roe struck down the Georgia and Texas laws, functionally invalidating every abortion law then on the books. Doe upheld only a requirement that a physician had to base a decision on “his best clinical judgment,” reasoning that the term required a physician to consider a woman’s age and physical, emotional, and psychological condition. 17

Roe touched off intense discussion in the legal academy. It was no surprise that conservative law professors, many of whom had criticized earlier decisions by the Court under Earl Warren and Warren Burger, saw Roe as flawed. However, Roe also created a crisis for liberal academics. Some, like Laurence Tribe of Harvard Law School, became the first of many to offer a sounder constitutional foundation for the abortion right. Others saw Roe as a signal of the problems with a particular approach to judging, one that discounted the will of the people. 18

Academic analysis of Roe ensured that the decision would become a prime example in scholarly discussions of the role of the judiciary in modern America. Should—and could—courts act as engines of social change? How could the courts act aggressively without interfering with the nation’s commitment to democracy? Roe soon became a key example of the problems with an “activist” judiciary.

Roe also helped to nationalize antiabortion activities. Led by the National Right to Life Committee, right-to-lifers prioritized a constitutional amendment that would restore the right to life, reverse Roe , and ban abortion across the country. For years, movement organizations endlessly debated what a perfect amendment would involve. While fighting about the details, activists agreed on the broad outlines of a constitutional vision. For the most part, right-to-lifers did not immediately take an interest in arguments about judicial activism. Instead of blaming the Court for inventing a constitutional approach whole cloth, movement members faulted the justices for ignoring the unborn child’s right to life and equal treatment.

The abortion-rights movement also changed in the aftermath of Roe . While concerns about women’s rights had always been central to some in the movement, leading organizations like NARAL and Planned Parenthood had sometimes avoided arguments about equality or autonomy for women, believing them to be unnecessarily controversial. After Roe , women took on positions of leadership in most major abortion-rights organizations and emphasized ideas about women’s rights that they tied to Roe itself. At the same time, scandals consuming the population-control movement made it less attractive to tout abortion as a means of curbing demographic growth. A wave of involuntary sterilizations made news not long after the leaders of developing countries charged population controllers with racism and coercion.

The medical practice of abortion also changed in the aftermath of legalization. Following the decision of Roe , a network of clinics opened to serve clients. In the late 1970s, the National Abortion Federation (NAF) organized to set medical standards, provide mutual support, and lend a political voice to abortion providers. After legalization, providers grew concerned that saline abortions, then-common procedures performed by injecting fluid into the uterus, were time consuming, painful, and emotionally difficult for patients. Doctors developed dilation and evacuation, a procedure involving the dilation of the cervix and removal of any uterine contents. Dilation and evacuation proved to be safer and less taxing for staff and patients. 19

Even so, the threat of criminal prosecution was never far away. In the mid-1970s, Boston prosecutors brought manslaughter charges against Dr. Kenneth Edelin for performing an abortion by hysterotomy, a second-trimester procedure similar to a cesarean section. Edelin’s conviction was ultimately overturned on appeal, but the threat of legal intervention scared abortion providers. Many committed to avoiding Edelin’s fate by using only techniques that would eliminate the risk of a live birth during abortion.

Meanwhile, Congress refused to take action on an antiabortion constitutional amendment. Right-to-lifers had more success in the courts. Founded as an educational organization, Americans United for Life (AUL) created an antiabortion public-interest law firm. Rather than asking for the recognition of the right to life, AUL planned to argue that some abortion restrictions were constitutional under Roe .

With the passage of the Hyde Amendment in 1976 , AUL and its allies believed that an incremental attack on Roe would pay off. Following a series of state and local laws, the Hyde Amendment, a rider to an appropriations bill, prohibited Medicaid reimbursement for most abortions. Although the precise scope of the amendment sparked a fight every year, it threatened to cut off abortion access for poor women who could not afford the procedure.

When the Court rejected a constitutional challenge to the Hyde Amendment, some movement members saw the potential for something much more. The movement embraced a form of incrementalism, sponsoring state legislation that might survive Supreme Court review and then litigating to defend it. In this way, the movement planned to hollow out the Court’s decision until it had no real meaning.

Right-to-lifers also influenced electoral politics. Antiabortion political action committees claimed to have influenced key congressional races in the late 1970s. As their opposition evolved, supporters of abortion rights committed to becoming more politically savvy. Arguments about a right to choose had circulated for years, but NARAL and other movement organizations saw the idea of choice as a way to convince ambivalent voters.

While compromise on the abortion issue seemed possible, some activists tried to find common ground on other gender issues, including pregnancy-discrimination legislation. By the early 1980s, however, an evolving political environment ensured that the abortion debate would only become only more bitter. Led by former insiders like Paul Weyrich, the New Right hoped to force the Republican Party to the Right. Weyrich and his allies believed that conservative evangelical Protestants and Catholics could swing elections their way. With Weyrich’s help, new groups organized conservative evangelicals, including the Moral Majority ( 1979 ). 20

Aligning more closely with the newfound Religious Right guaranteed financial stability and political influence for the antiabortion movement. Right-to-lifers also gravitated toward conservatism because of the changing party politics of abortion. Although Republicans had tried to make abortion an election issue in the early 1970s, both parties avoided taking a clear position for most of the decade. The parties took contrasting stands on the issue during the 1976 election, but by 1980 , the divide between Republicans and Democrats had become far more pronounced. Ronald Reagan, who had taken antiabortion positions since 1976 , ran on a Republican platform that endorsed a fetal protective amendment to the Constitution. Carter took the position that Roe was the law of the land and deserved respect. At the end of the election season, the Republican Party had started a relationship with the antiabortion movement that would shape activists’ cause in coming decades.

After Reagan’s election, hopes for a fetal-protective constitutional amendment ran high, but right-to-lifers could not agree on how to proceed. Movement incrementalists favored an approach that would overrule Roe , while hardliners opposed anything that would stop short of ending abortion. By 1983 , a last-ditch attempt to pass the Hatch-Eagleton Amendment failed, convincing abortion opponents that the way forward depended on the courts. Movement leaders worked to popularize claims about judicial activism that had already shaped academic discussion.

The Court’s most recent abortion decision, City of Akron v. Akron Center for Reproductive Health ( 1983 ), only intensified right-to-lifers’ focus. Reagan’s first nominee, Sandra Day O’Connor, dissented from a decision striking down an ordinance that abortion opponents had promoted as a model across the country. Her vote convinced some right-to-lifers that changing the Court’s composition could pay dividends for those dedicated to overturning Roe . 21

In the next decade, the Supreme Court majority in favor of abortion rights shrunk. The Court upheld several parental-consultation laws, pleasing abortion opponents who believed that minors’ rights could be a weakness for the opposition. In Thornburgh v. American College of Obstetricians and Gynecologists ( 1986 ), the Court again struck down a multi-restriction law, but four justices dissented from the majority. Throughout the 1980s, because of decisions like Thornburgh , Supreme Court nominations became more of a focal point during presidential elections, and members of Congress routinely asked judicial nominees for their views about Roe . In 1987 , the most intense such hearing resulted in the defeat of Robert Bork’s nomination to the nation’s highest court. After Bork, judicial nominations remained intensely political. 22

In 1989 , the Court seemed ready to overrule Roe altogether. A plurality opinion, Webster v. Reproductive Health Services , upheld most of a challenged Missouri law. Three justices suggested that “the key elements of the Roe framework . . . are not found in the text of the Constitution, or any place else anyone would expect to find a constitutional principle.” While Justice O’Connor reasoned that the statute was compatible with Roe , Justice Antonin Scalia called for overruling Roe . Webster convinced many that Roe would be overturned soon, if it had not been already. 23

The post- Webster period saw both sides experiment with different strategies. Some right-to-lifers grew frustrated with the pace of change and tried to blockade clinics directly. Led by Randall Terry’s Operation Rescue, clinic blockaders took to the streets at a time when clinic violence was on the rise. Bombings, acid attacks, and vandalism led to a decrease in the number of doctors performing abortions. In the wake of the murder of doctors and clinic staff, Congress passed the Freedom of Access to Clinic Entrances Act (FACE), a law making it a crime to use force, threats, or physical obstruction to prevent people from entering reproductive-health clinics. The clinic-blockade movement declined because of internal divisions, crushing civil penalties, and criminal convictions. 24

Even though clinic blockaders lost credibility, antiabortion violence tested the relationship between providers and those in the political wing of the abortion-rights movement. While political operatives could use the violence to energize supporters and raise money, providers felt vulnerable and unprotected. Supporters of abortion rights invested more in politics. The leaders of the pro-choice movement believed that a decision overruling Roe would energize supporters of legal abortion and put many more sympathetic politicians in office.

By 1990 , Roe had taken on many meanings. Right-to-lifers sometimes presented Roe as a sign of the decay of the traditional family and a culture of selfishness. Others still identified Roe with the rejection of a right to life that defined a cultural tradition of protecting the vulnerable. As part of its “Who Decides?” campaign, NARAL made Roe a symbol of privacy from an overreaching state. Feminists often described Roe as a decision involving women’s autonomy and right to equal treatment. Roe had become as fluid as it was widely known. 25

Casey and the Undue Burden Test

In 1992 , in the decision of Planned Parenthood of Southeastern Pennsylvania v. Casey , the Court defied most expectations. Casey involved a challenge to five provisions of Pennsylvania’s Abortion Control Act, but the case also asked the Court to explain more clearly what would become of Roe . The plurality began by confirming “the essential holding” of Roe that the Constitution protected a liberty interest that covered abortion. The plurality linked abortion to established case law on “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education.” Casey described a similar autonomy interest at stake in abortion—the “right to define one’s own concept of existence.” 26

Casey suggested that the abortion right mattered because of women’s interest in equality as well as autonomy. Given the consequences of an unplanned pregnancy, the woman’s suffering was “too intimate and personal for the State to insist, without more, upon its vision of the woman’s role.” 27

Casey next considered whether there were reasons to depart from stare decisis , the respect due to prior precedents. The plurality concluded that time had not proven Roe to be unworkable or eroded its doctrinal underpinnings. The Court also emphasized the extent to which women had come to rely on the existence of legal abortion in ordering their lives.

Nevertheless, the plurality concluded that medical advances had made Roe ’s trimester framework obsolete. Casey first held that the government’s interest in fetal life continued throughout pregnancy rather than starting after viability. Describing the trimester divisions as rigid and unnecessary, the Court set them aside. Instead, courts would evaluate future abortion regulations under the undue-burden test. A restriction would be unconstitutional if it had “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus.” 28

The Court went on to uphold all but one of the Pennsylvania regulations. Supporters of abortion rights took some hope from Casey ’s holding on a spousal-consultation law. Recognizing that only a small number of women would refrain from telling their spouses because of fears of abuse, Casey nonetheless concluded that the restriction created an undue burden. The plurality also suggested that spousal-consultation laws rested on damaging stereotypes about gender roles.

Right-to-lifers saw the Court’s analysis of an informed-consent provision as especially significant. Casey reasoned that laws requiring providers to recite a script would be constitutional so long as the information included was “truthful and non-misleading.” Casey rejected the idea that such a regulation would compromise the rights of women or physicians’ interest in free speech. The Court also repeated an argument right-to-lifers had used since before Roe about the negative effect of abortion on women. “In attempting to ensure that a woman apprehend the full consequences of her decision,” the Court reasoned, “the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover late, with devastating consequences, that her decision was not fully informed.” 29

After Casey

Casey redefined Roe and changed the course of the conflict. Right-to-life groups used new informed-consent measures as a vehicle for claims about the negative effects of abortion on women. Abortion opponents also redoubled their efforts to introduce onerous facilities regulations, some of which required clinics to meet the same standards as hospitals. Groups like NARAL vowed to make abortion “legal, safe, and rare,” promoting access to contraception as well as abortion. Following the 1994 International Conference on Population and Development, other activists worked to spread the idea of reproductive justice, a framework that brought together access to abortion, contraception, and sex education with demands for the means and support women needed to raise children.

By the mid-1990s, those on opposing sides battled about a particular late-term abortion procedure, intact dilation and extraction. Information about the procedure became public after an abortion opponent leaked part of a presentation given by Dr. Martin Haskell at the annual convention of the National Abortion Federation. Douglas Johnson of the National Right to Life Committee described the procedure as “partial birth abortion,” and movement members launched a campaign to ban it. President Bill Clinton twice vetoed a federal ban on the procedure. In 2000 , in Stenberg v. Carhart , the Supreme Court struck down a similar state law, emphasizing that it made no exception when the procedure was needed to protect a woman’s health. Three years later, President George W. Bush signed the Partial Birth Abortion Ban Act into law. 30

In 2007 , the Supreme Court decided a constitutional challenge to the federal law. In a five-to-four decision, Gonzales v. Carhart applied Casey ’s undue-burden test and upheld the ban. Among the legitimate purposes identified, the Court was protecting women from post-abortion regret. Writing for the majority, Justice Kennedy saw it as “self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished . . . when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child.” Carhart also rejected a challenge to the law based on its lack of a health exception. Citing scientific uncertainty about when intact dilation and extraction would be necessary to help a woman, the Court reasoned that legislation could survive a facial challenge. 31

Carhart exposed the extent to which abortion care had changed. While hospitals had performed most abortions in the immediate aftermath of Roe , almost all women sought out the procedure at independent clinics. Planned Parenthood had stayed mostly out of the abortion business when NAF was founded. By the mid-1980s, the national Planned Parenthood office took a more prominent role in political advocacy for abortion rights. Over time, the number of affiliates offering abortion services increased: whereas the 1979 NAF directory listed only one Planned Parenthood clinic, roughly half the affiliates did so by 2015 . Although many affiliates provided a wide range of reproductive services, Planned Parenthood became the nation’s most visible abortion provider.

Almost a decade went by before the Supreme Court would hear another abortion case. In Whole Woman’s Health v. Hellerstedt , the Court heard a challenge to two provisions of Texas’s HB2, a law alleged to protect women from unsafe clinics and providers. One required doctors performing abortions to have admitting privileges within thirty miles. A second mandated that abortion clinics comply with the many regulations governing ambulatory surgical centers.

By a five-to-three vote, the Court struck down both regulations. The majority agreed with a trial court that HB2 would dramatically undermine access to abortion in the state. Nor was the majority convinced that the law protected women’s health. More importantly, the Court reinterpreted the undue-burden test. Whole Woman’s Health instructed courts to balance the burdens of a law against its benefits. Moreover, the Court clarified that courts should collect extensive evidence about the impact of a law rather than deferring to legislators’ analyses of it.

The abortion debate seemed likely to change again in the wake of Whole Woman’s Health . Some pro-lifers turned back to fetal-protective laws, emphasizing statutes that would ban abortion after twenty weeks, the time when activists claimed that the unborn child could experience pain. Others outlawed “dismemberment” abortions, measures that seemed likely to reach dilation and evacuation, the most common second-trimester procedure. Some movement members argued that it was too early to give up on strategies emphasizing the supposed negative effect of abortion on women.

Supporters of legal abortion also faced an uncertain future. Following the presidential 2016 election, Donald J. Trump vowed to nominate pro-life judges. With control of both houses of Congress, Republicans planned to defund Planned Parenthood and hoped to ban abortion after twenty weeks. With the membership of the Supreme Court likely to change, the fate of Roe seemed up in the air.

In the decades after its decision, Roe has continued to cast a long shadow over American law and culture. Roe receives credit (or blame) for eliminating possible compromises on a range of gender issues. Feminists identify it with what they see as a damaging brand of single-issue politics that leave out poor and non-white women. Nevertheless, Roe itself emerged from some of the major upheavals of the 20th century —medical advancements, changes to the family structure, battles about family planning, eugenics, and individualism.

The Court’s decision has assumed such an outsized role because many identify it with events that came before and after it. To be sure, Roe itself had far-reaching consequences, legalizing abortion coast to coast and further motivating the antiabortion movement. Over time, though, many politicians, lawyers, academics, and activists infused Roe with meanings that would have surprised the authors of the 1973 opinion. The history of Roe has been written not just in the courts but also in less expected places, including the legislatures, clinics, classrooms, and rallies where the abortion wars continue to be fought. For this reason, the story of Roe reaches far beyond the Supreme Court, and much of it remains to be told.

Discussion of the Literature

Roe v. Wade has generated a tremendous amount of scholarship, much of it on the moral, constitutional, and medical dimensions of the abortion debate. However, histories of its role in the abortion conflict even now remain incomplete. The earliest accounts often came as part of insiders’ accounts of the workings of the Burger Court, such as Bob Woodward and Scott Armstrong’s The Brethren: Inside the Supreme Court . 32 Professional historians in the 1970s began positioning Roe in broader historical context, including Linda Gordon’s Women’s Body, Women’s Right: The History of Birth Control in America 33 and James Mohr’s Abortion in America: The Origins and Evolution of National Policy, 1800–1900 . 34 While sometimes openly sympathetic to demands for legal abortion, these studies offered a nuanced view of the policies and cultural trends that had led to abortion bans and the fight to remove them. Sociologists also contributed to new understandings of the movements on either side of the abortion struggle. Kristin Luker’s Abortion and the Politics of Motherhood ( 1984 ) 35 argued that competing views of gender roles defined the terms of the debate.

Professional historians began turning to the history of Roe in greater numbers in the 1990s. Some studies add to the scholarship on Roe ’s place in the history of family planning, including Rickie Solinger’s Wake Up, Little Susie: Single Pregnancy and Race Before Roe v. Wade , 36 Marvin Olasky’s Abortion Rites: A Social History of Abortion in America , 37 Leslie Reagan’s When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 , 38 and Donald Critchlow’s Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America . 39 David Garrow’s Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade 40 offered the first in-depth study of the strategies that helped to produce Roe and its progeny. In the 1990s, legal scholars also began bringing historical scholarship to bear in discussion about the constitutionality of abortion laws, chief among them Reva Siegel’s “Reasoning from the Body: A Historical Perspective on Abortion and Questions of Equal Protection.” 41

After 2000 , scholarship on Roe itself greatly expanded. Studies offered analysis of the forces that shaped discussion before the 1973 decision, particularly the reasons abortion politics became polarized well before 1973 . 42 Scholars have dug deeper into the evolution of the population-control movement and its position on abortion, 43 while others have studied the impact of women of color, underground abortion providers, and feminist women’s health activists who made understudied contributions to the debate. 44 Biographies of Supreme Court justices have shed light on what Roe meant within the Court. 45 The right-to-life movement has received far more serious scholarly attention, with scholars exploring its origins, its post- Roe development, and its relationship to a larger history about American attitudes toward fetal life. 46

Recent studies have also begun to move beyond a focus on the Court’s decision and the litigation tactics that produced it, discussing Roe ’s legal reverberations in the context of the political, cultural, and economic upheavals that made as great a difference. 47 Nor have studies homed in so exclusively on Roe ’s place in political and legal history. Recent work has explored how case law before and after Roe shaped practices in American hospitals and clinics. 48

The lead-up to Roe remains far better understood than its aftermath, particularly after 1980 . We have only begun to understand the evolution of either a reproductive justice framework or the creation of politically sophisticated pro-choice organizations. The pro-life movement deserves more extensive consideration, as does the role of abortion in electoral politics in later decades. Study of Roe ’s legacy outside of abortion is far from exhausted, and scholars have only begun to study attitudes and beliefs about the decision that depart from its formal language.

Primary Sources

Traditionally, researchers interested in reproductive rights have looked to the Sophia Smith Collection at Smith College, which holds the Planned Parenthood Federation of America Collection, and to the Arthur and Elizabeth Schlesinger Library in the History of Women in America , at the Radcliffe Institute for Advanced Study at Harvard, which holds the papers of the National Abortion Rights Action League and the National Organization for Women. Princeton University’s holdings on the American Civil Liberties Union also offer helpful material. These archives also house material collected by influential state and local organizations, as well as prominent individuals. The Library of Congress holds the papers of several Supreme Court justices who took part in Roe and the decisions following it. Those interested in the pro-life movement can find useful material in the Dr. Edward Stanton Library at the Sisters of Life Convent, the Gerald Ford Presidential Library, and diocesan libraries in major cities including New York and Boston.

Further Reading

• Connelly, Matthew . Fatal Misconception: The Struggle to Control World Population . Cambridge, MA: Harvard University Press, 2008.
• Critchlow, Donald T. Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America . New York: Oxford University Press, 1999.
• Dubow, Sara . Ourselves Unborn: A History of the Fetus in Modern America . New York: Oxford University Press, 2010.
• Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade . Berkeley: University of California Press, 1998.
• Gordon, Linda . The Moral Property of Women: A History of Birth Control Politics in America . Champaign: University of Illinois Press, 2002.
• Gorney, Cynthia . Articles of Faith: A Frontline History of the Abortion Wars . New York: Simon and Schuster, 2000.
• Greenhouse, Linda . Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey . New York: Times Books, 2006.
• Greenhouse, Linda , and Reva B. Siegel . “Before and After Roe v. Wade: New Questions about Backlash.” Yale Law Journal 120 (2011): 2034–2086.
• Hull, N. E. H. , and Peter James Hoffer . Roe v. Wade: The Abortion Controversy in American History . Lawrence: University of Kansas Press, 2001.
• Mohr, James . Abortion in America: The Origins and Evolution of National Policy . New York: Oxford University Press, 1979.
• Reagan, Leslie . When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 . Berkeley: University of California Press, 1997.
• Reagan, Leslie . Dangerous Pregnancies: Mothers, Disabilities, and Abortion in Modern America . Berkeley: University of California Press, 2010.
• Post, Robert and Reva B. Siegel . “ Roe Rage: Democratic Constitutionalism and Backlash.” Harvard Civil Rights-Civil Liberties Review 42 (2007): 373–434.
• Saletan, William . Bearing Right: How Conservatives Won the Abortion War . Berkeley: University of California Press, 2004.
• Schoen, Johanna . Abortion After Roe: Abortion After Legalization . Chapel Hill: North Carolina Press, 2015.
• Williams, Daniel K. Defenders of the Unborn: The Pro-Life Movement Before Roe v. Wade . New York: Oxford University Press, 2015.
• Ziegler, Mary . After Roe: The Lost History of the Abortion Debate . Cambridge, MA: Harvard University Press, 2015.

1. Ruth Bader Ginsburg , “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade ,” North Carolina Law Review 63 (1985): 384.

2. Planned Parenthood of Southeastern Pennsylvania v. Casey , 550 U.S. 833, 997, 1001 (1992) (plurality decision) (Scalia, J., dissenting).

3. Nicola Kay Beisel , Imperiled Innocents: Family Reproduction in Victorian America (Princeton, NJ: Princeton University Press, 1997); James Mohr , Abortion in America: The Origins and Evolution of National Policy, 1800–1900 (New York: Oxford University Press, 1979); and Leigh Ann Wheeler , Against Obscenity: Reform and the Politics of Womanhood in America, 1873–1935 (Baltimore: Johns Hopkins University Press, 2004).

4. Lawrence M. Friedman , Crime and Punishment in American History (New York: Basic Books, 1993); Michael Grossberg , Governing the Hearth: Law and the Family in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1985); and Leslie J. Reagan , When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 (Berkeley: University of California Press, 1997).

5. Jennifer Nelson , Women of Color and the Reproductive Rights Movement (New York: New York University Press, 2003).

6. Sara Dubow , Ourselves Unborn: A History of the Fetus in Modern America (New York: Oxford University Press, 2010), 64–65.

7. Leslie J. Reagan , Dangerous Pregnancies: Mothers, Disabilities, and Abortion in Modern America (Berkeley: University of California Press, 2010).

8. Donald T. Critchlow , Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America (New York: Oxford University Press, 1999).

9. Daniel K. Williams , Defenders of the Unborn: The Pro-life Movement Before Roe v. Wade (New York: Oxford University Press, 2015).

10. Linda Greenhouse and Reva B. Siegel , “Before and After Roe v. Wade: New Questions about Backlash,” Yale Law Journal 120 (2011): 2034–2086.

11. Poe v. Ullman , 367 U.S. 497 (1961).

12. Griswold v. Connecticut , 381 U.S. 479 (1965).

13. United States v. Vuitch , 402 U.S. 62 (1971).

14. Eisenstadt v. Baird , 405 U.S. 438 (1972).

15. David Garrow , Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (Berkeley: University of California Press, 1998).

16. Roe v. Wade , 410 U.S. 113 (1973).

17. Doe v. Bolton , 410 U.S. 179 (1973).

18. Laura Kalman , The Strange Career of Legal Liberalism (New Haven, CT: Yale University Press, 1998).

19. Johanna Schoen , Abortion After Roe: Abortion After Legalization (Chapel Hill: North Carolina Press, 2015).

20. Daniel K. Williams , God’s Own Party: The Making of the Christian Right (New York: Oxford University Press, 2010).

21. City of Akron v. Akron Center for Reproductive Health , 462 U.S. 416 (1983).

22. Thornburgh v. American College of Obstetricians and Gynecologists , 476 U.S. 747 (1986).

23. Webster v. Reproductive Health Services , 492 U.S. 490 (1989).

24. David Cohen and Krysten Connen , Living in the Crosshairs: The Untold Stories of Antiabortion Terrorism (New York: Oxford University Press, 2015).

25. William Saletan , Bearing Right: How Conservatives Won the Abortion War (Berkeley: University of California Press, 2004).

26. Casey , 505 U.S. at 852.

27. Casey , 505 U.S. at 852.

28. Casey , 505 U.S. at 877.

29. Casey , 505 U.S. at 882.

30. Stenberg v. Carhart , 530 U.S. 914 (2000).

31. Gonzales v. Carhart , 550 U.S. 124 (2007).

32. Bob Woodward and Scott Armstrong , The Brethren: Inside the Supreme Court (New York: Simon and Schuster, 1979).

33. Linda Gordon , Women’s Body, Women’s Right: A History of Birth Control in America (New York: Grossman/Viking, 1976).

34. Mohr, Abortion in America .

35. Kristin Luker , Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984).

36. Rickie Solinger , Wake Up, Little Susie: Single Pregnancy and Race Before Roe v. Wade (New York: Kirkus, 1992).

37. Marvin Olasky , Abortion Rites: A Social History of Abortion in America (Wheaton, IL: Crossway, 1992)

38. Reagan, When Abortion Was a Crime .

39. Critchlow, Intended Consequences .

40. Garrow, Liberty and Sexuality .

41. Reva B. Siegel , “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection,” Stanford Law Review 44 (1992): 261–381.

42. Linda Greenhouse and Reva B. Siegel , “Before (and After) Roe v. Wade: New Questions on Backlash,” Yale Law Journal 120 (2011): 2052–2071; Before Roe v. Wade: Voices That Shaped the Abortion Debate Before The Supreme Court’s Ruling , eds. Linda Greenhouse and Reva B. Siegel , 2d ed. (New Haven, CT: Yale Law Library, 2012).

43. Simone M. Caron , Who Chooses?: American Reproductive History Since 1850 (Gainesville: University Press of Florida, 2008), 150–151, 153–155, 160–163; and Matthew Connelly , Fatal Misconception: The Struggle to Control World Population (Cambridge, MA: Harvard University Press, 2008).

44. Sandra Morgen , Into Our Own Hands: The Women’s Health Movement in the United States, 1969–1990 (Rutgers: Rutgers University Press, 2002); Jennifer Nelson , More than Medicine: A History of the Women’s Health Movement (New York: New York University Press, 2015); and Jennifer Nelson , Women of Color and the Reproductive Rights Movement (New York: New York University Press, 2003).

45. Linda Greenhouse , Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (New York: Times Books, 2006).

46. Sara Dubow , Ourselves Unborn: A History of the Fetus in Modern America (New York: Oxford University Press, 2010); and Daniel K. Williams , Defenders of the Unborn: The Pro-life Movement Before Roe v. Wade (New York: Oxford University Press, 2015).

47. Deborah Dinner , “The Costs of Reproduction: History and the Legal Construction of Sex Equality,” Harvard Civil Rights-Civil Liberties Review 46 (2011): 417–495; Leigh Ann Wheeler , How Sex Became a Civil Liberty (New York: Oxford, 2014); and Mary Ziegler , After Roe: The Lost History of the Abortion Debate (Cambridge, MA: Harvard University Press, 2015).

48. Johanna Schoen , Abortion After Roe: Abortion After Legalization (Chapel Hill: University of North Carolina Press, 2015).

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Roe v. Wade

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Roe v. Wade , legal case in which the U.S. Supreme Court on January 22, 1973, ruled (7–2) that unduly restrictive state regulation of abortion is unconstitutional. In a majority opinion written by Justice Harry A. Blackmun , the Court held that a set of Texas statutes criminalizing abortion in most instances violated a constitutional right to privacy , which it found to be implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment (“…nor shall any state deprive any person of life, liberty, or property, without due process of law”). Roe v. Wade was overturned by the Supreme Court in 2022.

The case began in 1970 when “Jane Roe”—a fictional name used to protect the identity of the plaintiff, Norma McCorvey (1947–2017)—instituted federal action against Henry Wade, the district attorney of Dallas county, Texas, where Roe resided. The Supreme Court disagreed with Roe’s assertion of an absolute right to terminate pregnancy in any way and at any time. Instead, it attempted to balance what it regarded as a “fundamental” right to privacy with the state’s “compelling” interests in protecting the health of pregnant persons and the “potentiality of human life.” In doing so, the Court formulated a timetable based on the notions of trimester and fetal viability (i.e., the “capability of meaningful life outside the mother’s womb”). During the first trimester of pregnancy, the Court ruled, the state could not intervene in a person’s decision to have an abortion under normal circumstances. During the second trimester the state could regulate abortion procedures to protect the health of pregnant persons, but it could not prohibit abortions altogether. From the end of the second trimester, which the Court identified as the starting point of viability, the state could regulate or prohibit abortions in order to protect the pregnant person’s health or to preserve fetal viability. In no case, however, could the state criminalize abortions that were necessary to protect the life or health of the pregnant person.

Repeated challenges to Roe v. Wade after 1973 narrowed the decision’s scope but did not overturn it. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Supreme Court established that restrictions on abortion are unconstitutional if they place an “undue burden” on a person seeking an abortion before the fetus is viable. In Gonzales v. Carhart (2007), the Court upheld the federal Partial-Birth Abortion Ban Act (2003), which prohibited a rarely used abortion procedure known as intact dilation and evacuation. In Whole Woman’s Health v. Hellerstedt (2016), the Court invoked its decision in Casey to strike down two provisions of a Texas law requiring that abortion clinics meet the standards of ambulatory surgical centers and that doctors performing abortions have admitting privileges at a nearby hospital. Four years later, in June Medical Services L.L.C. v. Russo (2020), the Court invoked Whole Woman’s Health to declare unconstitutional a Louisiana statute that was, as the majority noted, nearly identical to Texas’s admitting-privileges law.

In May 2021 the Supreme Court agreed to review in its October 2021 term a lower court’s decision to strike down a Mississippi state law, adopted in 2018, that banned most abortions after the 15th week of pregnancy, well before the point of fetal viability. Although the law was plainly unconstitutional under Roe v. Wade and Planned Parenthood v. Casey , Mississippi lawmakers passed the measure in the hope that an inevitable legal challenge would eventually make its way to the Supreme Court, where a conservative majority of justices would overturn or drastically reduce the scope of those decisions. The single question that the Court agreed to consider in the case, Dobbs v. Jackson Women’s Health Organization , was whether bans on all pre-viability abortions are unconstitutional. In May 2022 an apparent draft of a majority opinion in the case, written by Justice Samuel A. Alito, Jr. , was leaked to a political news publication in an extraordinary breach of the traditional secrecy in which the Court conducts its deliberations. The opinion, dated February 2022, indicated that the Court had voted to uphold the Mississippi law and to overturn both Roe v. Wade and Planned Parenthood v. Casey . As expected, both Roe and Casey were overturned (5–4) in the Court’s official decision in Dobbs , issued in June 2022, in which Alito held that there is no constitutional right to abortion. Soon after the decision was handed down, several states adopted laws that drastically limited the availability of abortion.

In 1998, having undergone two religious conversions, McCorvey publicly declared her opposition to abortion. However, in the documentary AKA Jane Roe (2020), a dying McCorvey claimed that she had been paid by antiabortion groups to support their cause.

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Quick Facts You Should Know About Roe v. Wade

A short history of the landmark case.

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By Derrick Bryson Taylor

Nearly 50 years ago, the Supreme Court legalized abortion in the United States with its decision in Roe v. Wade , reshaping the nation’s social and political landscape.

On Monday night, Politico published a leaked draft opinion that said the Supreme Court had privately voted to strike down the decision, setting the stage for abortion-rights battles across the nation and prompting a wave of protests at the Supreme Court in Washington, D.C.

Here are some quick facts you should know about the case.

When was Roe v. Wade decided?

The 7-2 ruling was announced on Jan. 22, 1973. Justice Harry A. Blackmun , a modest Midwestern Republican and a defender of the right to abortion, wrote the majority opinion .

What the case was about.

In short, it is a landmark Supreme Court decision that established a constitutional right to abortion. The ruling struck down laws in many states that had barred abortion, declaring that they could not ban the procedure before the point at which a fetus can survive outside the womb.

That point, known as fetal viability, was around 28 weeks when Roe was decided. Today, because of improvements in medicine, most experts now estimate fetal viability to be about 23 or 24 weeks .

What led to the landmark case?

In 1970, a woman in Texas named Norma McCorvey was five months pregnant with her third child and wanted to have an abortion. Two Dallas lawyers, Sarah Weddington and Linda Coffee, represented her in challenging the state’s prohibition on abortions except to save a mother’s life.

Who are Roe and Wade?

Jane Roe was a pseudonym for Ms. McCorvey, who was 22 when her case was filed. She later spoke out against abortion, but in a documentary in 2020, Ms. McCorvey said she had done so only because she was paid for her advocacy. She died in 2017 at 69.

“Wade” refers to the defendant, Henry Wade, who was the district attorney in Dallas County, Texas, at the time. Mr. Wade died in 2001 at 86.

What else did the case do?

Roe v. Wade created the framework to govern abortion regulation based on the trimesters of pregnancy. In the first trimester, it allowed almost no regulations. In the second, it allowed regulations to protect women’s health. In the third, it allowed states to ban abortions so long as exceptions were made to protect the life and health of the mother.

What happened next.

In 1992, the court tossed the trimester framework in Planned Parenthood v. Casey . However, Casey retained Roe’s “essential holding,” meaning that women have a constitutional right to terminate their pregnancies until fetal viability.

Derrick Bryson Taylor is a general assignment reporter. He previously worked at The New York Post’s PageSix.com and Essence magazine. More about Derrick Bryson Taylor

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Key facts about the abortion debate in America

The U.S. Supreme Court’s June 2022 ruling to overturn Roe v. Wade – the decision that had guaranteed a constitutional right to an abortion for nearly 50 years – has shifted the legal battle over abortion to the states, with some prohibiting the procedure and others moving to safeguard it.

As the nation’s post-Roe chapter begins, here are key facts about Americans’ views on abortion, based on two Pew Research Center polls: one conducted from June 25-July 4 , just after this year’s high court ruling, and one conducted in March , before an earlier leaked draft of the opinion became public.

This analysis primarily draws from two Pew Research Center surveys, one surveying 10,441 U.S. adults conducted March 7-13, 2022, and another surveying 6,174 U.S. adults conducted June 27-July 4, 2022. Here are the questions used for the March survey , along with responses, and the questions used for the survey from June and July , along with responses.

Everyone who took part in these surveys is a member of the Center’s American Trends Panel (ATP), an online survey panel that is recruited through national, random sampling of residential addresses. This way nearly all U.S. adults have a chance of selection. The survey is weighted to be representative of the U.S. adult population by gender, race, ethnicity, partisan affiliation, education and other categories.  Read more about the ATP’s methodology .

A majority of the U.S. public disapproves of the Supreme Court’s decision to overturn Roe. About six-in-ten adults (57%) disapprove of the court’s decision that the U.S. Constitution does not guarantee a right to abortion and that abortion laws can be set by states, including 43% who strongly disapprove, according to the summer survey. About four-in-ten (41%) approve, including 25% who strongly approve.

About eight-in-ten Democrats and Democratic-leaning independents (82%) disapprove of the court’s decision, including nearly two-thirds (66%) who strongly disapprove. Most Republicans and GOP leaners (70%) approve , including 48% who strongly approve.

Most women (62%) disapprove of the decision to end the federal right to an abortion. More than twice as many women strongly disapprove of the court’s decision (47%) as strongly approve of it (21%). Opinion among men is more divided: 52% disapprove (37% strongly), while 47% approve (28% strongly).

About six-in-ten Americans (62%) say abortion should be legal in all or most cases, according to the summer survey – little changed since the March survey conducted just before the ruling. That includes 29% of Americans who say it should be legal in all cases and 33% who say it should be legal in most cases. About a third of U.S. adults (36%) say abortion should be illegal in all (8%) or most (28%) cases.

Generally, Americans’ views of whether abortion should be legal remained relatively unchanged in the past few years , though support fluctuated somewhat in previous decades.

Relatively few Americans take an absolutist view on the legality of abortion – either supporting or opposing it at all times, regardless of circumstances. The March survey found that support or opposition to abortion varies substantially depending on such circumstances as when an abortion takes place during a pregnancy, whether the pregnancy is life-threatening or whether a baby would have severe health problems.

While Republicans’ and Democrats’ views on the legality of abortion have long differed, the 46 percentage point partisan gap today is considerably larger than it was in the recent past, according to the survey conducted after the court’s ruling. The wider gap has been largely driven by Democrats: Today, 84% of Democrats say abortion should be legal in all or most cases, up from 72% in 2016 and 63% in 2007. Republicans’ views have shown far less change over time: Currently, 38% of Republicans say abortion should be legal in all or most cases, nearly identical to the 39% who said this in 2007.

However, the partisan divisions over whether abortion should generally be legal tell only part of the story. According to the March survey, sizable shares of Democrats favor restrictions on abortion under certain circumstances, while majorities of Republicans favor abortion being legal in some situations , such as in cases of rape or when the pregnancy is life-threatening.

There are wide religious divides in views of whether abortion should be legal , the summer survey found. An overwhelming share of religiously unaffiliated adults (83%) say abortion should be legal in all or most cases, as do six-in-ten Catholics. Protestants are divided in their views: 48% say it should be legal in all or most cases, while 50% say it should be illegal in all or most cases. Majorities of Black Protestants (71%) and White non-evangelical Protestants (61%) take the position that abortion should be legal in all or most cases, while about three-quarters of White evangelicals (73%) say it should be illegal in all (20%) or most cases (53%).

In the March survey, 72% of White evangelicals said that the statement “human life begins at conception, so a fetus is a person with rights” reflected their views extremely or very well . That’s much greater than the share of White non-evangelical Protestants (32%), Black Protestants (38%) and Catholics (44%) who said the same. Overall, 38% of Americans said that statement matched their views extremely or very well.

Catholics, meanwhile, are divided along religious and political lines in their attitudes about abortion, according to the same survey. Catholics who attend Mass regularly are among the country’s strongest opponents of abortion being legal, and they are also more likely than those who attend less frequently to believe that life begins at conception and that a fetus has rights. Catholic Republicans, meanwhile, are far more conservative on a range of abortion questions than are Catholic Democrats.

Women (66%) are more likely than men (57%) to say abortion should be legal in most or all cases, according to the survey conducted after the court’s ruling.

More than half of U.S. adults – including 60% of women and 51% of men – said in March that women should have a greater say than men in setting abortion policy . Just 3% of U.S. adults said men should have more influence over abortion policy than women, with the remainder (39%) saying women and men should have equal say.

The March survey also found that by some measures, women report being closer to the abortion issue than men . For example, women were more likely than men to say they had given “a lot” of thought to issues around abortion prior to taking the survey (40% vs. 30%). They were also considerably more likely than men to say they personally knew someone (such as a close friend, family member or themselves) who had had an abortion (66% vs. 51%) – a gender gap that was evident across age groups, political parties and religious groups.

Relatively few Americans view the morality of abortion in stark terms , the March survey found. Overall, just 7% of all U.S. adults say having an abortion is morally acceptable in all cases, and 13% say it is morally wrong in all cases. A third say that having an abortion is morally wrong in most cases, while about a quarter (24%) say it is morally acceptable in most cases. An additional 21% do not consider having an abortion a moral issue.

Among Republicans, most (68%) say that having an abortion is morally wrong either in most (48%) or all cases (20%). Only about three-in-ten Democrats (29%) hold a similar view. Instead, about four-in-ten Democrats say having an abortion is morally  acceptable  in most (32%) or all (11%) cases, while an additional 28% say it is not a moral issue. 

White evangelical Protestants overwhelmingly say having an abortion is morally wrong in most (51%) or all cases (30%). A slim majority of Catholics (53%) also view having an abortion as morally wrong, but many also say it is morally acceptable in most (24%) or all cases (4%), or that it is not a moral issue (17%). Among religiously unaffiliated Americans, about three-quarters see having an abortion as morally acceptable (45%) or not a moral issue (32%).

• Religion & Abortion

Carrie Blazina is a former digital producer at Pew Research Center .

Cultural Issues and the 2024 Election

Support for legal abortion is widespread in many places, especially in europe, public opinion on abortion, americans overwhelmingly say access to ivf is a good thing, broad public support for legal abortion persists 2 years after dobbs, most popular.

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“This Was Not a Surprise”: How the Pro-Choice Movement Lost the Battle for Roe

In the wake of a leaked draft opinion indicating the supreme court plans to overturn roe v. wade, joshua prager, author of “the family roe,” discusses the 50-year battle over abortion rights and the strategic decisions that led us here., series: post-roe america: abortion access divides the nation.

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As all eyes were on the U.S. Supreme Court on Tuesday after a leaked draft majority opinion indicated it is planning to overturn Roe v. Wade, ProPublica spoke with journalist Joshua Prager, who spent 11 years dissecting the landmark case that guaranteed abortion rights for women across the country. For his acclaimed book “ The Family Roe: An American Story ,” Prager interviewed upwards of 500 people including key figures on both sides of the case, most notably its plaintiff, Norma McCorvey, who was better known as Jane Roe. In delving into the untold story behind her life, those of the children she gave birth to and the monumental case, Prager unfurled the decadeslong history of the American war over abortion.

Prager said indicators of the justices’ leanings were clear while observing arguments in Dobbs v. Jackson Women’s Health Organization , a case challenging a 2018 Mississippi law prohibiting most abortions after 15 weeks’ gestational age, which is the subject of the Supreme Court’s draft opinion. Though the Court confirmed the authenticity of the document published this week by Politico, the final vote and decision are still pending. Prager discussed why he believed the road to this week’s revelation was paved, in part, by decades of mistakes and missed opportunities made by the pro-choice movement. (In his book, Prager refers to those who support the right to abortion the way they refer to themselves, “pro-choice,” and those opposing abortion the way they refer to themselves, “pro-life.” We adhered to these conventions during our interview. The interview has been edited for brevity and clarity.)

Did you expect this day would come?

I absolutely did. Anyone who was a close follower of the issue could see that this was happening when we listened to the oral arguments in Dobbs. We knew where all of the justices stood pretty much, but there were two who we thought might go either way, Justice (Amy Coney) Barrett, Justice (Brett) Kavanaugh — two of Trump’s three appointments. And to listen to them speak and question during oral arguments in Dobbs, we could see where they were going.

Kavanaugh, over and again, was speaking about precedents that the Supreme Court had previously overturned. Justice Barrett, meantime, was speaking about the fact that adoption is, as she put it, a viable alternative to abortion.

What was so fascinating about this and tragic, if you’re a person who believes that Roe ought not to be overturned, was that the Supreme Court did not need Justice (John) Roberts, the chief justice anymore; the conservative bloc now doesn’t need him. They have the votes that they need 5 to 4 without him. He is an incrementalist. He is a person who respects precedent. He really cares about the image of the court, does not want it to be seen as simply a political body. And he was desperate to not actually have the headline that we had last night. He wanted to see Roe maintained, but sort of gutted. But he lost.

So this was not a surprise. If you step back further, when Roe was ruled upon in 1973 , it galvanized those opposed to it. And it gave (the pro-life movement) a very simple, clear target, a new raison d’etre: We want to overturn Roe. This is the culmination of 49 1/2 years of efforts and different approaches, novel approaches. And unfortunately, again, if you are a person who believes in reproductive choice, the pro-choice did not take a lot of that seriously for many years, and they are as much to, sort of, blame for this day as the pro-life will (take) credit for.

Tell me a little more about the blame the pro-choice movement shares.

(The pro-choice movement) did not foresee a war here. NARAL’s executive director in 1973, when Roe was ruled upon, told her board after the ruling, “The court has spoken and the case is closed.” They saw this as, basically: It’s over. We’ve won.

The very, very opposite is true of the pro-life, who said: OK, now we have to think about this strategically, how will we go about overturning Roe? As a result of that imbalance, the pro-choice were playing catch up really for 49 1/2 years, as the pro-life (movement has) over and over again come up with many different ways to chip away at Roe and has been remarkably successful. Just to give you a few examples:

• 1976, the Hyde Amendment , which said that you can no longer pay for abortion with Medicaid.
• 1989, the case of Webster , that was a ruling against the use of public resources for abortion.
• 2007, Gonzales v. Carhart banned a specific type of abortion procedure.
• And then of course, just this year in Texas with SB-8 , it was a very novel approach coming up with a way to have an end run around the enforcement of abortion by deputizing private citizens to sue anyone who was helping someone have an abortion in any way.

The pro-life also used technology in a way that had never been used before by showing fetal photography. They used language that had never been used before, for example, coining the phrase “partial-birth abortion.”

They also used pseudoscience in a remarkable way. They came up with this very novel approach called “post-abortion syndrome,” saying that if a woman had an abortion, an enormous percentage of the time, she would suffer psychologically as a result of that. That’s not true. In fact, the opposite is true. The majority of women who have abortions express relief as opposed to regret. If there is something that causes women grief, the studies show, it is relinquishing their child to adoption. These were all pro-life weapons in attacking Roe, and over and over again, you had the pro-choice movement outfoxed.

In the early 2000s, one of the attacks on Roe was led by lawyer Allan Parker, who had represented Norma for a time. (The suit) said that Roe needed to become null and void because conditions had changed in the years since it had been filed. And the only way to file this suit was to have the original plaintiff file it. So he came to represent Norma and he filed this suit.

What ended up happening was that the pro-choice basically ignored the suit. They said that it was a sad publicity stunt, and they did not file a single brief defending Roe in this case. And it ended up introducing into the judicial system these affidavits filed by women who said that abortion harmed them. And that idea ended up going right up to the Supreme Court. Justice (Anthony) Kennedy ended up citing them in 2007 in Gonzales v. Carhart. It was evident that Parker’s lawsuit had been incredibly effective and powerful.

It shows all of the different ways in which the pro-choice have failed to meet the pro-life, have failed to repel their arguments and their strategies. And it speaks to a simple human reality that it’s much easier to try to knock something down than to defend it. What we’re going to see now is the very same problem that the pro-choice had, the pro-life now are going to have, because now you are going to see that this is going to galvanize the tens of millions of people who are horrified about what’s happening now. They now will have as simple a marching order as the pro-life used to have to reinstate Roe or to come up with another way to ensure that abortion will be legal for women across the country.

Roe was 1 day old in 1973 when Bella Abzug, who was a House representative from New York, urged Congress to codify Roe. She basically foresaw exactly where we are today, that there was the potential legislation to erode Roe. She introduced an act: The Abortion Rights Act, H.R. 254 , to bar states from creating new (laws) on abortion. Congress ignored her bill, and anyway, it was doomed to failure because Roe allowed for future legislation. It gave states the right to oppose regulations from the second trimester onward, but here we are now and people want to go back and do exactly what Bella Abzug was saying that we ought to do.

Is there any more evidence that pro-choice leaders made mistakes that allowed this to happen? Where does the pro-choice movement go from here?

It’s not only true, but something that, case in point, was embodied by Justice (Ruth Bader) Ginsburg’s decision to not step down from the court in her 80s, during Obama’s presidency. We would not be here had she done that. That is a simple fact. And that is a very painful fact, for she’s obviously the greatest hero over the course of 50 years to the pro-choice movement, but whether it was hubris or it was an inability to see that Trump might be elected or just a very human, understandable desire to hold onto a job she loved, it was nonetheless a mistake with catastrophic consequences. And that, you can say, was the final nail in the coffin for Roe, but it was also the latest in a long line of missteps by the pro-choice of failing to properly address the situation in which they found themselves.

And here we are, but again, it’s now going to flip. If you’re a person who cares about choice, that is the silver lining of this very dark, dark cloud that it is now going to galvanize in a way we have not seen in our lifetimes, those who believe in a right to choose.

“I Don’t Want to Die”: Needing Mental Health Care, He Got Trapped in His Insurer’s Ghost Network

Ravi Coutinho bought a health insurance plan thinking it would deliver on its promise of access to mental health providers. But even after 21 phone calls and multiple hospitalizations, no one could find him a therapist.

by Max Blau , illustrations by Vanessa Saba , special to ProPublica , Sept. 8, 6:05 a.m. EDT

Struggling to Find an In-Network Mental Health Provider? Here’s What You Can Do.

Insurers’ failures to update their provider directories have led to dire consequences for people seeking mental health care. Experts, clinicians and advocates explain how you can navigate these challenges to find treatment.

by Max Blau , Sept. 8, 6 a.m. EDT

What Mental Health Care Protections Exist in Your State?

Insurers have wide latitude on when and how they can deny mental health care. We looked at the laws in all 50 states and found that some are charting new paths to secure mental health care access.

by Annie Waldman and Maya Miller , Aug. 27, 7 a.m. EDT

Why It’s So Hard to Find a Therapist Who Takes Insurance

Those who need therapy often have to pay out of pocket or go without care, even if they have health insurance. Hundreds of mental health providers told us they fled networks because insurers made their jobs impossible and their lives miserable.

by Annie Waldman , Maya Miller , Duaa Eldeib and Max Blau , photography by Tony Luong, special to ProPublica , design by Zisiga Mukulu , Aug. 25, 7 a.m. EDT

Missouri Outlawed Abortion, and Now It’s Funding an Anti-Abortion Group That Works in Other States

With millions in expanded tax credits and direct state funding going to anti-abortion groups, the nonprofit Coalition Life has expanded its operations beyond Missouri and into states where the procedure is still legal.

by Jeremy Kohler , Aug. 19, 5 a.m. EDT

Utah Supreme Court Rules That Alleged Sexual Assault by a Doctor Is Not “Health Care”

The decision revives a lawsuit filed by 94 women who said their OB-GYN sexually abused them. Previously, a lower court determined that the actions they alleged had to be treated as medical malpractice.

by Jessica Schreifels , The Salt Lake Tribune , Aug. 9, 2 p.m. EDT

Local Reporting Network

Inside Ziklag, the Secret Organization of Wealthy Christians Trying to Sway the Election and Change the Country

The little-known charity is backed by famous conservative donors, including the families behind Hobby Lobby and Uline. It’s spending millions to make a big political push for this election — but it may be violating the law.

by Andy Kroll , ProPublica, and Nick Surgey , Documented , July 13, 5 a.m. EDT

Trump Built a National Debt So Big That It’ll Weigh Down the Economy for Years

The “King of Debt” promised to reduce the national debt — then his tax cuts made it surge. Add in the pandemic, and he oversaw the third-biggest deficit increase of any president.

by Allan Sloan , ProPublica, and Cezary Podkul for ProPublica , Jan. 14, 2021, 5 a.m. EST

School District With Highest Student Arrest Rate in the Nation Agrees to Reform How It Disciplines Disabled Students

Following a ProPublica-Chicago Tribune investigation, the Garrison School in Illinois will change its disciplinary practices and provide services to those who missed class due to being arrested or sent to a seclusion room.

by Jennifer Smith Richards and Jodi S. Cohen , Sept. 6, 10:15 a.m. EDT

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The uncomfortable problem with Roe v. Wade

The Constitution doesn’t tell us which rights it protects, and now the power to decide that question rests with people like Samuel Alito.

by Ian Millhiser

I believe that the Constitution protects a right to abortion.

I want to state that upfront because the rest of this essay will be highly critical of the Supreme Court’s opinion in Roe v. Wade , and of the open-ended approach to constitutional interpretation exemplified by that decision. As I will argue below, the right to an abortion should be found within the Constitution’s promise of gender equality — an approach which does far more to limit judicial power than the Roe opinion itself.

Roe, the landmark case that first established a constitutional right to abortion, rested on the idea that judges have a practically unlimited power to find rights within the Constitution that aren’t mentioned anywhere within it. The 1973 decision found the right to abortion within a broader “right of privacy,” which itself was found within “the 14th Amendment’s concept of personal liberty and restrictions upon state action.”

The legal name for this kind of constitutional analysis is “substantive due process.” It refers to the theory that certain unenumerated rights — rights that are never explicitly mentioned in the Constitution — are nonetheless implicit in a passage of the 14th Amendment providing that no one shall be denied “liberty” without “due process of law.”

Substantive due process is best known now as the bedrock of many of the most celebrated progressive Supreme Court victories in the last several decades. In addition to Roe, c urrent doctrine holds that rights closely tied to the family — including the right to marry whoever you choose , the right to sexual autonomy , and the right to guide your own children’s upbringing — are among the unenumerated rights protected by the 14th Amendment.

Indeed, when the Supreme Court overruled Roe in Dobbs v. Jackson Women’s Health Organization in June, Justice Clarence Thomas argued in a concurring opinion that all of these rights must fall along with the right to an abortion .

But the Court only started to use substantive due process to advance equality and other progressive values fairly recently. There’s also a much darker history underlying doctrines like substantive due process.

Not long after the 14th Amendment was ratified, ex-Confederates, including a disgraced former Supreme Court justice, tried to twist it into a shield protecting white supremacy — and they very nearly succeeded. Several decades later, substantive due process became a tool of plutocrats, and the Court routinely wielded it to strike down pro-labor legislation .

Now, the power to read new constitutional rights into our founding document is held by conservative Republicans like Justice Samuel Alito — the same justice who relied on a centuries-old treatise written by a judge who sentenced two “witches” to death in his opinion overruling Roe . It is a terrible mistake to trust this man with that kind of power.

Abandoning substantive due process, moreover, should not mean sacrificing hard-fought victories for reproductive choice or marriage equality. A sounder strategy is to root these rights in constitutional provisions that offer more specific protections. The Constitution’s guarantee that no one may be denied “ the equal protection of the laws ,” for example, is capacious enough to protect both.

It’s time, in other words, to put substantive due process to bed.

The right to an abortion can exist without an unenumerated “right to privacy”

The Constitution is clearly supposed to protect some rights that aren’t mentioned within it — this is apparent from 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.”

But the Constitution’s text also provides few clues about what these unenumerated rights might be. And judges have struggled for more than a century to come up with a coherent theory of which such rights are protected by the Constitution. American judges haven’t even settled on a persuasive theory about which provision of the Constitution permits them to find unenumerated rights to be implicit in the document.

One way to square this circle is to allow judges — and ultimately the Supreme Court — to determine which unenumerated rights should enjoy constitutional protection. That’s a fine solution if you are comfortable giving this power to whoever sits on the Court, including the specific justices who currently do.

But if you are concerned that Alito and his fellow conservative justices do not have your best interests at heart, then it makes more sense to limit the Court’s power — and that means that our rights must be grounded in constitutional text that places some limits on judicial discretion.

The right to reproductive freedom — including the right to abortion — should be found within the Constitution’s guarantee that no one shall be denied “ the equal protection of the laws .”

As the late Justice Ruth Bader Ginsburg wrote shortly before she joined the Supreme Court, the question of whether women will be able to “participate as men’s full partners in the nation’s social, political, and economic life ” hinges upon their “reproductive autonomy.” Gender equality, at least at a systemic level, is not possible in a society where women’s bodies can be seized by the state for nine months at a time.

Roe , however, said surprisingly little about equality, instead claiming that the right to an abortion is implicit in a right to privacy, which is itself implicit in the due process clause of the Constitution.

The question of whether to root abortion rights in gender equality or in a broader right to privacy may seem academic, but the stakes are high. The judiciary’s power to guarantee equal protection is potent but limited. It merely allows judges to equalize rights, providing to a disadvantaged group what the government has already provided to a more advantaged group. In extreme cases, equal protection may also invalidate policies, like the “inherently unequal” segregated schools rejected by Brown v. Board of Education , that systemically relegate a disadvantaged group to an inferior position in society.

Substantive due process and similar doctrines, by contrast, permit the courts to find any right they choose within the Constitution, including “rights” that do serious harm to already disadvantaged groups. As Justice Hugo Black, a liberal Franklin Roosevelt appointee, wrote in 1970, the methods his Court uses to find unenumerated rights within the Constitution are “ an arrogation of unlimited authority by the judiciary .”

And much of the history of substantive due process — and the Supreme Court’s use of it — backs Black up.

The battle lines on unenumerated rights were drawn very soon after the Civil War

The idea that important political rights flow from a provision of the Constitution that only guarantees “due process” is quite odd. And it’s especially odd because the 14th Amendment also states that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States .” This language provides a much stronger hook to hang substantive rights upon than the due process clause.

The story of why this privileges or immunities clause plays almost no role in modern constitutional law, however, is instructive. It is a story about how easily bad actors can manipulate vague constitutional language that guarantees undefined rights.

And it starts with John Archibald Campbell , one of the great villains of the Reconstruction Era. A former Supreme Court justice and West Point classmate of Robert E. Lee and Jefferson Davis, Campbell quit the Court at the beginning of the Civil War and eventually become the Confederacy’s assistant secretary of war. After the war, he lived in New Orleans, where he complained in an 1871 letter to his daughter that Louisiana’s Reconstruction government put “Africans in place all about us.”

Campbell read the 14th Amendment and saw an opportunity to neutralize laws enacted by Black legislators. In one case, he argued that a law requiring racially integrated theater seating was unconstitutional because the right to run a segregated business was one of the unnamed “privileges or immunities” protected by the new amendment.

The apotheosis of Campbell’s racist litigation strategy, however, was the Slaughter-House Cases (1873), which split the justices 5-4 between two wildly divergent theories of unenumerated rights, both of which would remain relevant for decades.

Around the time of the Civil War, New Orleans was the unhealthiest city in the nation. One in 12 residents died every year, often from outbreaks of cholera or yellow fever . One of the most significant contributors to this public health crisis was the city’s slaughterhouses, whose waste littered the streets and polluted with rotting offal the Mississippi River that supplied New Orleans’s drinking water.

To deal with this problem, the state’s Reconstruction legislature shut down all of New Orleans’s slaughterhouses and replaced them with a single grand slaughterhouse that would be open to all butchers — and that would sit downriver of the intake pipes that supplied the city with water.

Campbell objected to this law largely because the legislature that enacted it included 35 Black lawmakers. But he primarily adopted proto-libertarian rhetoric in order to challenge the law in court. Claiming he stood for “ Freedom. Free action, free enterprise [and] free competition ,” Campbell told the Supreme Court that the Reconstruction legislature’s slaughterhouse law must fall.

A majority of the Court saw through Campbell’s effort to achieve racist ends by laissez-faire means, and upheld the slaughterhouse law. The purpose of the 14th Amendment, Justice Samuel Miller wrote for the majority , is to ensure “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” It wasn’t to impose small-government conservatism on the states at the very moment when Black Americans first began to exercise legislative power.

But while Miller’s decision was a victory for public health — and at least a temporary defeat for Campbell’s white supremacist project — it achieved this outcome by reading the privileges or immunities clause so narrowly as to render it virtually meaningless.

Though Miller did concede that the 14th Amendment protected some very limited rights, such as the right “to come to the seat of government to assert any claim he may have upon that government” or the right to “use the navigable waters of the United States,” the thrust of his opinion was that judges should be very reluctant to find rights within the 14th Amendment, lest the courts be transformed into “ a perpetual censor upon all legislation of the States .”

In effect, Slaughter-House neutralized much of the 14th Amendment. Miller essentially decided it was better to eliminate the possibility that the privileges or immunities clause would be used for good, than to risk allowing someone like Campbell to use it for evil. As Justice Stephen Field complained in dissent, the Court’s decision transformed the privileges or immunities clause into “vain and idle enactment, which accomplished nothing.”

Field’s vision for the 14th Amendment, however, was as inconsistent with its antiracist purpose as Campbell’s. If Campbell embraced a kind of proto-libertarianism as a cynical ploy to undermine Black lawmakers, Field did so earnestly and enthusiastically. He believed that the Constitution provides expansive, unenumerated rights to capital. And his vision would eventually prevail during the first third of the 20th century.

Substantive due process as a tool of plutocrats

Field could be the patron saint of modern-day figures like Paul Ryan and Neil Gorsuch , who seek to shrink the government until it can be drowned in a bathtub. After Congress enacted a 2 percent income tax that applied only to the wealthiest one-thousandth of Americans, Field wrote an apocalyptic opinion claiming that “the present assault upon capital is but the beginning,” and that it would lead to a “war of the poor against the rich.”

His dissent in Slaughter-House , meanwhile, foreshadowed an age when the Supreme Court would routinely strike down pro-labor legislation on the dubious theory that workers have a right to enter into oppressive labor contracts. Quoting from the economic philosopher Adam Smith, Field wrote that preventing a poor man “from employing this strength and dexterity in what manner he thinks proper” is a “manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him.”

This theory of liberty, and particularly the idea that workers and employers both benefit from a system where workers may enter into oppressive labor contracts, won majority support on the Supreme Court shortly after Field’s death in 1899.

The case that most exemplified this era was Lochner v. New York (1905). Today, Lochner is widely viewed as one of the worst decisions in the Court’s history — even Alito denounced it as “discredited” in his Dobbs opinion overruling Roe . Lochner struck down a New York law providing that bakery workers, who were typically paid by the day or week and thus gained nothing from longer hours, would work a maximum 10-hour work day and a 60-hour work week.

Lochner claimed that the law “interferes with the right of contract between the employer and employees,” embracing the laissez-faire approach to labor policy that Field advocated in Slaughter-House.

The Court eventually abandoned Lochner, and its so-called “right to contract,” in 1937. But Lochner was still one of the most consequential decisions of its time. Among other things, the Court relied on Lochner ’s so-called “right to contract” to strike down laws protecting the right to unionize and laws providing for a minimum wage .

By the early 20th century, two distinct concepts of unenumerated rights had gained purchase on the Supreme Court. One, which was first articulated by Field and later embraced by a majority of the justices in Lochner , saw the Court as a bulwark against too-aggressive legislatures. Under this theory, the Court had at least some duty to step in when lawmakers enacted policies that offended not only the text of the Constitution, but also the justices’ personal sense of how a capitalist society should function.

The other approach, which resembled Justice Miller’s position in Slaughter-House , called for judges to defer to lawmakers’ policy decisions. In a now-celebrated dissent, Justice Oliver Wendell Holmes articulated this approach: “A Constitution is not intended to embody a particular economic theory , whether of paternalism and the organic relation of the citizen to the state or of laissez faire .”

Or, as Holmes put it in a more colorful moment, “ if my fellow citizens want to go to hell, I will help them .” Under this approach, it simply was not the job of judges to find new rights in the Constitution that could thwart the actions of democratically elected lawmakers.

Two more aspects of the Court’s Lochner -era jurisprudence are worth noting. One is that Lochner and its progeny cited the due process clause, not the privileges or immunities clause, as the source of the right to contract. This shift allowed the Court to recognize unenumerated rights without having to explicitly overrule Slaughter-House — even though that meant tying substantive rights to a provision that speaks only of “process.”

The other is that, while Lochner and similarly plutocratic decisions loom large over this era, there was another line of early 20th-century substantive due process cases involving the rights of parents. And these decisions would eventually blossom into cases like Roe v. Wade .

The right to family autonomy

In 1919, Nebraska forbade school teachers from teaching “ any subject to any person in any language than the English language ” before the student passed the eighth grade. It was a transparently nativist law, enacted, in the words of Nebraska’s highest court, because “the Legislature had seen the baneful effects of permitting foreigners , who had taken residence in this country, to rear and educate their children in the language of their native land.”

Three years later , Oregon required most parents to send their kids to public and not parochial schools. This law was almost certainly motivated by anti-Catholic sentiment.

The Court struck both laws down in a pair of substantive due process decisions, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), both of which emphasized that parents have a right — though not an unlimited one — to direct the upbringing of their children.

As the Court ruled in Meyer, individuals have a right “to marry, establish a home and bring up children.” A parent has a “natural duty” to “give his children education suitable to their station in life.” And that duty brings with it a right to employ a teacher “to instruct their children” in subjects they wish those children to learn.

Beginning in 1937, when a majority of the Supreme Court agreed to scrap Lochner and stop sabotaging much of President Roosevelt’s New Deal, the Court began a purge of Lochner- like decisions that thwarted progressive economic regulation. Indeed, the Lochner decision was so offensive to liberals that many left-leaning judges and justices formed an identity around opposing it. As Justice Black said in 1967, the entire reason “why I came on the Court” was because “I was against using due process to force the views of judges on the country .”

But Meyer and Pierce, which did not threaten progressive economic programs such as the New Deal, survived this purge — despite Black’s belief that any decision reading unenumerated rights into the due process clause was illegitimate. And eventually a majority of the justices decided once again to drink from the forbidden chalice of substantive due process.

Justice William Douglas’s opinion in Griswold v. Connecticut (1965), which built upon Meyer and Pierce to hold that the Constitution permits married couples to use contraception, reads like the work of a sorcerer’s apprentice who knows that he is toying with black magic and ineptly tries to hide it.

“We are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment,” Douglas writes in Griswold , as well as a suggestion that “ Lochner v. State of New York should be our guide.” But Douglas insisted that his Court would “decline that invitation.”

Instead, Griswold relied on the truly risible argument that married couples’ right to contraception could be found within the “penumbras” and “emanations” of various constitutional amendments that “create zones of privacy.” This argument, whose only virtue is that it allowed the Court to find an unenumerated right within the Constitution without using the cursed words “substantive due process,” is rarely mentioned in the Court’s later decisions, except maybe to mock it .

Yet, while Griswold fumbled around for a way to protect contraceptive access without adopting the substantive due process framework that animated Lochner , it also shares the Court’s revulsion in Meyer and Pierce at the idea that the government would intrude too deeply into intimate decisions that should be made by families. “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” Douglas asked. “The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

By the time Roe was handed down eight years later, the Court was less coy about the fact that it was relying on substantive due process — Roe situated the right to an abortion in “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.” More significantly, the Roe opinion explicitly placed various decisions protecting the right to decide when and how to form a family under the umbrella of a “right to privacy.”

This right, according to Roe , included “activities relating to marriage, procreation, contraception, family relationships, and child rearing and education.”

When you read the Court’s unenumerated rights cases in conjunction (or, at least, the cases that do not rest on the discredited reasoning in Lochner ), a very clear and consistent ideology emerges. Every American has a right to marry a person of their choosing (1967’s Loving v. Virginia , 2015’s Obergefell v. Hodges ); to form and dissolve intimate bonds with whomever they choose ( Lawrence v. Texas in 2003); to have, or not to have, children at a time of their choosing ( Griswold , 1972’s Eisenstadt v. Baird , Roe ); and to raise those children as they desire, subject to laws prohibiting abuse, truancy, and the like ( Meyer , Pierce ).

Under the pre- Dobbs understanding of substantive due process, there must be firm safeguards against the government interfering too much in these deeply personal decisions. And yet, if you find this vision of family autonomy compelling — and I personally find it quite compelling — I urge you to think for a moment about what the current Court, with its 6-3 Republican supermajority, might do with the power to wall off certain family-centered decisions from government policymakers.

What does substantive due process really accomplish?

The question that looms over every single one of the Court’s unenumerated rights decisions is whether we can trust an unelected Supreme Court to decide which rights are protected by the Constitution.

Imagine what sort of “rights” John Archibald Campbell might have found within the 14th Amendment’s vague language if he’d remained on the Court rather than committing treason in defense of slavery. Imagine what Stephen Field might have done if he’d had the votes to impose his laissez-faire vision on the country during his lifetime. Imagine, for that matter, what someone like Samuel Alito might do now that he has the power to invent new constitutional “rights.”

Think, for example, of the many efforts by social conservatives to remove books they disagree with from public school curriculums and libraries . Or similar efforts to force transgender students to use bathrooms that do not align with their gender identity.

Historically, cases like Meyer and Pierce have not been understood to allow conservative parents to impose their will on public school curriculums and policies. But someone like Alito could certainly read them that way. If parents have a right to decide their children’s’ upbringing, what prevents a socially conservative Court from holding that they have a right to send their kids to a public school that doesn’t have trans-inclusive bathrooms?

Leading anti-LGBTQ groups have already spent years thinking about how to use substantive due process to achieve their agenda, sometimes even embracing rhetoric lifted straight out of Griswold or Roe .

The lesson of Lochner is that the power to make “rights” can be used in terrible ways. And it can be used to enhance the might of the already-too-powerful.

But what then of rights, such as marriage equality or the right to sexual autonomy, which current case law finds within the Constitution’s due process clause? The short answer is that these rights should be found elsewhere in the Constitution.

The Court’s early substantive due process decisions — including Lochner , Meyer , and Pierce — were the product of a very different era when the text of the Constitution was often treated as an afterthought. As Georgetown law professor Victoria Nourse writes, “for over fifty years, from 1880 until 1937, American constitutional jurisprudence was neither particularly textual nor particularly focused on original intent .” Judges routinely decided constitutional cases based on common law principles derived only from other judicial decisions, or from ill-defined concepts such as the “police power,” which play a vastly diminished role in modern constitutional law.

Many of the leading lawyers, judges, and legal scholars of that era were quite open about their belief that constitutional law exists separately from the Constitution’s text. As Christopher Tiedeman, an enormously influential legal scholar whose work was quoted with approval by hundreds of judicial decisions around the turn of the 20th century, wrote in a 1900 treatise , “the conservative classes stand in constant fear of the advent of an absolutism more tyrannical and more unreasoning than any before experienced by man — the absolutism of a democratic majority.”

To defeat this majority, Tiedeman urged judges to “lay their interdict upon all legislative acts” that violate a narrow vision of government power, and do so “ even though these acts do not violate any specific or special provision of the Constitution .”

One consequence of this atextualist era in American constitutional law is that judges often relied on vague doctrines like substantive due process to reach outcomes that could have been achieved by relying on a right that is explicitly protected by the Constitution. If a case like Meyer were to arise today, for example, a modern court would undoubtedly find that the right to teach a foreign language is protected by the First Amendment’s free speech clause.

It also helps that, led largely by Justice Black, the Court spent much of the middle of the 20th century holding that states must comply with nearly all of the Bill of Rights , slowly chipping away at an 1833 decision saying that the Bill of Rights applies only to the federal government.

That means that almost all the rights currently protected by substantive due process can be found elsewhere in the Constitution. The anti-Catholic law struck down in Pierce violated the First Amendment’s command that everyone can freely exercise their religion . Laws that deny equal marriage rights to same-sex couples, or that criminalize gay sex, violate the Constitution’s command that no one may be denied “ the equal protection of the laws ” (unless, of course, a state is also willing to prohibit opposite-sex marriage and straight sex).

The right to reproductive autonomy — including the right to abortion — can also be found within this equal protection clause. Recall Justice Ginsburg’s argument that the question of whether women will be able to “participate as men’s full partners in the nation’s social, political, and economic life ” hinges upon their “reproductive autonomy.”

I want to be clear that shifting individual rights jurisprudence away from substantive due process, and toward provisions that explicitly protect more carefully enumerated rights, is not a panacea against partisan or ideological judging. Explicit constitutional rights can be interpreted in ways that undermine democracy and lift up the most powerful — hence the Court’s decision in Citizens United v. FEC (2010) that the Constitution’s free speech clause protects the right of corporations to spend unlimited money to influence elections.

But constitutional provisions like the free speech, free exercise, and equal protection clauses are, at least, bounded. They permit judges to halt government censorship, attacks on religion, and efforts to foster inequality. They don’t permit judges to invent literally any right, as substantive due process does. The only real limits on substantive due process are the limits the judiciary imposes on itself.

I also acknowledge that, in arguing that it is time to let the judiciary’s unchecked power to recognize unenumerated rights fall by the wayside, I too am making a somewhat atextualist argument. The Ninth Amendment and privileges or immunities clause are still there, tempting judges to read into them whatever they choose.

But if you disagree with my argument that judges should not use such an extraordinarily vague provision to decide what our rights will be, I want to leave you with a question: How much do you trust Samuel Alito with that power?

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Standing up for Women’s Reproductive Rights

U.S. Representative Mike Quigley (IL-05) spoke on the House floor in support of women's reproductive rights in the midst of the Supreme Court's impending case, Whole Woman's Health v. Hellerstedt.

Below is a video and transcript of the speech.

Mr. Speaker, let me thank Congresswoman Watson Coleman and my Pro-Choice Caucus colleagues for inviting me to participate in this very timely and important conversation.

As we await to hear the Supreme Court oral arguments in Whole Woman’s Health v. Hellerstedt next week,

We must reflect on not only the serious implications of this particular case, but the attacks on choice across the country this past year.

The case against Whole Woman’s Health threatens to take the number of clinics in Texas down from 19 to just 10 clinics for the 5.4 million women of reproductive age in Texas.

It will also set a legal precedent for years, maybe decades, to come and shape the continued debate on a woman’s right to choose.

Clearly, this unacceptable assault on women’s health places an undue burden on the women of Texas when accessing abortion and family planning services.

I was proud to sign onto the Amicus brief with 162 Congressional colleagues in support of Whole Woman’s Health.

This case in particular is a high profile and extreme example of the attacks that are becoming all too common place across the United States.

While abortion still remains legal, in the years since Roe v. Wade, opponents of choice have attempted, with varying degrees of success, to chip away at a woman’s right to choose.

This is despite the fact that abortions are at their lowest rates since Roe.

Last year, we saw ideological attacks against Planned Parenthood from anti-choice activists attempting to mire the organization in scandal and force its closing.

Those attacks stemmed from the illegally obtained and questionably edited so-called “sting” videos filmed by these same anti-choice activists.

Unsurprisingly, Planned Parenthood has been cleared of any wrongdoing in every state that has conducted an investigation.

And to top it off, a grand jury in Missouri has indicted those responsible for filming the videos.

It goes to show this campaign against Planned Parenthood has been nothing less than a fraud.

While I fundamentally support a woman’s right to choose, it’s important to point out that the clinics forced to close, in Texas and across the U.S., serve women in ways far beyond providing safe abortions.

In many cases, especially for low-income and minority communities, these clinics serve as a primary healthcare provider.

The services they provide include birth control, STD testing, cervical screenings, mammograms, counseling and health education.

As the father of two daughters, the issue of reproductive rights is very personal for me.

And, it’s crucial that we understand reproductive rights and choice is not a “women’s issue”. It’s a civil rights issue. And, it’s an American issue.

In the city of Chicago, which I represent, women have widespread access to reproductive health services.

But, women in neighboring states like Indiana are often forced to cross state lines to find a clinic where she can have a safe abortion.

This reality is unacceptable. Civil rights should not be dependent on your zip code.

The decision in Whole Woman’s Health will ultimately hold national implications.

As a man, I am proud to stand up for choice.

And as a male Member of Congress, I take my responsibility to protect choice for women very seriously.

Statistics show women’s economic output is dramatically impacted for the better when they determine the timing and spacing of pregnancies.

When she is able to plan pregnancy, a woman is more likely to advance in education and the workforce.

Conversely, unplanned pregnancies too often force women to leave school and to delay or abandon career ambitions out right in order to care for children before they are ready and with limited support and resources.

In order for our society to ever truly be equal, women must have control of their bodies and determine with their partner if and when they want to have children.

Here in Congress, most of us were afforded the right to plan our families. Should we deny this right to the constituents we serve?

The futures of millions of young women depend on the decision to be handed down in cases like Whole Woman’s Health,

And it is my sincere hope that the Court remains consistent in recognizing a woman’s right to privacy protects her right to make her own choices about her health.

Thank you again and I yield back.

Adam Kemp Adam Kemp

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WATCH: Trump praises ‘heart and strength’ of Supreme Court for overturning Roe v. Wade

Former President Donald Trump praised himself and the Supreme Court for overturning Roe v. Wade in 2022.

“What I did is something — for 52 years they’ve been trying to get Roe v. Wade into the states. And through the genius and heart and strength of six Supreme Court justices, we were able to do that,” Trump said during the Sept. 10 debate with Vice President Kamala Harris in Philadelphia. “Now I believe in the exceptions for rape, incest, and life of the mother. I believe strongly in it, Ronald Reagan did also and 85 percent of Republicans do too, exceptions, very important, but we were able to get it and now states are voting on it.”

Trump said he’s happy individual states are voting on abortion rights.

“I did a great service in doing it,” Trump said of overturning Roe. “It took courage to do it. And the Supreme Court had great courage in doing it, and I give tremendous credit to those six justices.”

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According to the latest PBS News/NPR/Marist poll, more than two-thirds of Americans say they will watch all or most of the debate. While many voters have already made up their minds, 14 percent of Americans say the debate will have a great impact on which candidate they choose.

Harris said she would focus on building relationships with foreign allies and investing in American-based technology.

Adam Kemp is a Communities Correspondent for the PBS NewsHour based in Oklahoma.

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What’s at stake with Harris and Trump set to face off on debate stage

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Trump-Harris presidential debate: Live updates, reaction after candidates clash on abortion, immigration, economy

Former President Donald Trump and Vice President Kamala Harris went head-to-head on Tuesday night at their first — and potentially only — presidential debate.

The two candidates sparred onstage at the National Constitution Center in Philadelphia, where they faced questions on the economy, the wars in Gaza and Ukraine, abortion, climate change and immigration. It was the first time Harris and Trump met in person.

One of the rules of the highly anticipated debate, hosted by ABC News, was that microphones would be live only for the candidate whose turn it was to speak. But throughout the night, cross talk was heard from both Harris and Trump as they interrupted each other.

The moderators, ABC journalists David Muir and Linsey Davis , often fact-checked — more than what was done during Trump’s debate against President Biden on CNN in June.

This was the second general election debate of the 2024 presidential election cycle, but it was the first to feature Harris. The vice president replaced President Biden atop the Democratic ticket after he dropped out of the race in July following his much-criticized debate performance against Trump.

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Poll: Who won the debate?

Uncertainty surrounding a sept. 25 debate.

Neither campaign has officially committed to a Sept. 25 debate on NBC.

Trump adviser Jason Miller told CNN that Trump would do the debate, set to be hosted by NBC, so long as Harris "quit playing games, quit running" and shows up. Trump, however, called in to Fox & Friends this morning and said, "I don't know that I want to do another debate."

Quentin Fulks, Harris's deputy campaign manager, told CNN that "both campaigns are going to have to agree to a time, but I think the vice president is open to a debate in October."

There has been a lot of back-and-forth between the two campaigns over debate dates and rules . Initially, Trump proposed three debates against Harris — Sept. 4 with Fox News, Sept. 10 with ABC News and Sept. 25 with NBC. Harris declined the Sept. 4 debate option and said she would agree to future debates only after meeting Trump on Sept. 10.

Harris senior adviser names 3 Trump debate responses campaign will zero in on

David Plouffe, a senior adviser for the Harris campaign, told CNN Wednesday morning that the campaign plans to focus on some of Trump's responses at Tuesday night's debate.

Plouffe zeroed in on a few aspects:

Trump's health care plan, of which Plouffe said: "We have waited 11 years for his health care plan. We’ve never seen it."

Abortion: "He refused to say he wouldn’t sign an actual abortion ban."

Ukraine: "He basically said ... he wouldn’t take Ukraine’s side."

Investors say debate performances didn't move the needle for stock market

Reuters spoke to several investors about how the financial markets responded to the debate performances last night. The consensus seemed to be that "no knockout blow has landed" and there wasn't enough for the "markets to sink their teeth into."

Presidential elections do affect the stock market , although to a lesser extent than economic and inflation trends do.

"This debate doesn't seem to be changing the fact that it's going to be a very close election," Jack Ablin, the chief investment officer at Cresset Capital told the outlet. "If people don't feel their lives are improving, that will shape their behavior in November."

Harris and Trump shake hands at 9/11 memorial ceremony

Harris and Trump shook hands after they both arrived for the 9/11 memorial ceremony in New York City on Wednesday morning. They notably shook hands at the beginning of the debate last night, which was the first time the candidates met in person.

In addition to Harris and Trump, President Biden, Republican vice presidential nominee JD Vance, New York Sen. Chuck Schumer and former New York City Mayor Mike Bloomberg are at Ground Zero this morning.

Trump slams ABC, calls debate a 'rigged deal'

In a call to Fox & Friends on Wednesday morning, Trump repeatedly attacked ABC News, accusing the network's debate moderators of over-fact-checking him instead of Harris — and he even suggested the network should have its broadcasting license revoked.

“It was three to one. It was a rigged deal, as I assumed it would be,” he said. “I think ABC took a big hit last night. To be honest, they’re a news organization, they have to be licensed to do it. They ought to take away their license for the way they did that.”

"It was a rigged deal" -- Trump on Fox & Friends on last night's debate pic.twitter.com/jEYFuTvEhS — Aaron Rupar (@atrupar) September 11, 2024

Harris and Emhoff greet supporters at watch party after debate

Vice President Kamala Harris attended a watch party at the Cherry Street Pier in Philadelphia following the presidential debate. Her husband, second gentleman Doug Emhoff, accompanied her to greet supporters.

Tim Walz learns about Taylor Swift's endorsement live on air

During a live interview with Rachel Maddow on MSNBC on Tuesday night, vice presidential nominee Tim Walz found out in real time about the pop music superstar’s sudden announcement: that she is planning to vote for Kamala Harris in November .

Maddow read Swift’s lengthy Instagram post explaining her decision out loud in full, in which Swift specifically praised Walz for “standing up for LGBTQ+ rights, IVF and a woman’s right to her own body for decades.”

BREAKING: Taylor Swift endorses Kamala Harris for president. Tim Walz reacts to the news LIVE on MSNBC pic.twitter.com/wACc6WzQ3k — MSNBC (@MSNBC) September 11, 2024

Walz responded by saying he was “incredibly grateful” for Swift’s support. “That’s the type of courage we need in America,” he said.

The governor of Minnesota then followed up with a call to action for Swift’s dedicated fan base. “This’ll be the opportunity, Swifties,” he said. “Give us a hand. Get things going.”

Trump enters the spin room and says it was his 'best debate ever'

Less than an hour after the debate ended, Donald Trump entered the spin room in Philadelphia, where he declared victory.

"It was my best debate ever, I think," Trump told reporters. "I think it was the best debate, personally, that I've ever had."

Trump cited unspecified polls showing he won the debate but would not commit to doing a second one, as was proposed by the Harris campaign.

"I don't know if we're going to do another one," he said, before adding: "I wouldn't mind."

What happened at the debate after the livestream ended

After the debate concluded, the Associated Press reported that both candidates said "thank you" after they delivered their closing statements.

Second gentleman Doug Emhoff joined Harris on stage while Trump exited alone, according to AP. Former first lady Melania Trump did not join him in Philadelphia.

Taylor Swift endorses Kamala Harris after the debate

Moments after the debate ended, pop singer Taylor Swift endorsed Kamala Harris for president in an Instagram post .

"I will be casting my vote for Kamala Harris and Tim Walz in the 2024 Presidential Election. I’m voting for @kamalaharris because she fights for the rights and causes I believe need a warrior to champion them," Swift wrote.

View this post on Instagram A post shared by Taylor Swift (@taylorswift)

Walz: 'You saw a president for all America in Kamala Harris'

Harris’s running mate, Minnesota Gov. Tim Walz, made the case that tonight’s debate provided a stark contrast between two visions for the country.

“You saw the confidence. You saw the vision. You saw the poise. You saw the compassion for people,” Walz told ABC News of her performance after the debate ended.

He described Trump as “angry” and “unhinged” and reminiscent of “an old man yelling at the clouds.”

“He shouldn’t be anywhere near the White House,” Walz said.

Harris campaign calls for a second debate with Trump

In a statement released moments after the debate concluded, Harris campaign chair Jen O’Malley Dillon called for a second debate between Harris and Trump.

“Under the bright lights, the American people got to see the choice they will face this fall at the ballot box: between moving forward with Kamala Harris, or going backwards with Trump," O’Malley Dillon said. "That’s what they saw tonight and what they should see at a second debate in October. Vice President Harris is ready for a second debate. Is Donald Trump?”

Trump gives closing remarks, attacks Harris on immigration a final time

In his closing remarks, Trump repeatedly asked why Harris as vice president hasn't accomplished her political agenda. "Why hasn't she done it?" he asked.

He also returned to one of his favored tactics in the debate: attacking Harris for allegedly allowing too much illegal immigration.

"They're destroying our country," he said in the final line of the event. "The worst president, the worst vice president in the history of our country."

Harris delivers closing statement

In her closing statement, Vice President Kamala Harris said, "I think you've heard tonight two very different visions for our country: One that is focused on the future and the other that is focused on the past and an attempt to take us backward. But we're not going back."

Harris then tried to present a unifying vision for the American people.

"I'll tell you, I started my career as a prosecutor. I was a DA, I was an attorney general, a United States senator and now vice president. I've only had one client, the people. And I'll tell you, as a prosecutor, I never asked a victim or a witness. Are you a Republican or a Democrat? The only thing I ever ask them Are you OK?"

Harris: 'Tim Walz and I are gun owners. We're not taking anyone's guns away.'

Near the end of the debate, Harris responded to an assertion Trump made earlier in the evening: That she and her running mate want to take away Americans' Second Amendment rights.

"This business about taking everyone's guns away: Tim Walz and I are both gun owners," Harris said. "We're not taking anybody's guns away. So stop with the continuous lying about this stuff."

Harris has previously stated that she is a gun owner. In 2019 , while defending her call for a ban on assault weapons, she said, "I am a gun owner, and I own a gun for probably the reason a lot of people do — for personal safety."

A Harris campaign aide later confirmed that she owns a handgun.

Fact check: Trump’s evolving position on Obamacare

Trump: “I had a choice to make. Do I save it and make it as good as it can be or do I let it rot? And I saved it.”

This claim needs context : Trump’s promise to repeal and replace the Affordable Care Act (ACA), also known as Obamacare, was a centerpiece of his 2016 presidential campaign and he came within a single Senate vote of fulfilling that pledge. More recently, he has said he no longer wants to eliminate the law, but instead wants to make it “much better.” He has not provided any details on how he might improve the ACA.

When asked directly tonight whether he has a plan for improving or replacing the ACA, Trump responded that he has “concepts of a plan.”

Fact check: Harris attacks Trump on Afghanistan

ABC News asked Harris if she bore any responsibility for the U.S. military’s chaotic withdrawal from Afghanistan. Harris responded by saying she agreed with the decision to withdraw, but she blamed Trump for handing the Biden administration a bad deal on the matter.

Harris: “Donald Trump, when he was president, negotiated one of the weakest deals you can imagine. He calls himself a dealmaker. Even his national security adviser said it was a weak, terrible deal. And here’s how it went down. He bypassed the Afghan government. He negotiated directly with a terrorist organization called the Taliban.”

This claim needs context. As U.S. troops concluded their pullout of Afghanistan in August 2021, a suicide bomber launched an attack at Hamid Karzai International Airport, killing 13 U.S. service members and approximately 170 Afghan civilians, according to the U.S. Department of Defense .

While Trump and other Republicans have attacked Harris and Biden for how the administration handled the pullout of U.S. troops from Afghanistan, some former Trump administration officials have said that Biden was simply following through with a deal Trump negotiated with the Taliban .

Fact check: Trump addresses his comments about Harris's racial identity

David Muir: "Mr. President, you recently said of Vice President Harris, 'I didn't know she was Black until a number of years ago when she happened to turn Black, and now she wants to be known as Black.' I want to ask a bigger-picture question here tonight. Why do you believe it's appropriate to weigh in on the racial identity of your opponent?"

Trump: "I don't, and I don't care. I don't care what she is, I don't care. You make a big deal out of something. I couldn't care less. Whatever she wants to be is OK with me."

This claim needs context.

Trump attended the National Association of Black Journalists annual convention earlier this summer and chose the venue to falsely accuse Harris of embracing her Black identity only recently when it was politically convenient.

Harris, who is biracial, has long identified as both Black and South Asian. As a student, she attended Howard University, one of the nation’s most famous historically Black colleges, where she pledged at a historically Black sorority. As a senator, she joined the Congressional Black Caucus.

Read more from Yahoo News: “ #WhenITurnedBlack trends after Trump attacked Harris’s racial identity. It’s Black Twitter’s way of ‘dealing with pain through humor.’ ”

Trump on Russia

Trump talked about the threat of Russia and its leader, President Vladimir Putin, during an exchange in the debate.

Cover thumbnail photo illustration: Yahoo News; photos: Bill Pugliano/Getty Images, Demetrius Freeman/Washington Post via Getty Images

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Remarks by Vice President Harris on the 50th Anniversary of Roe v.   Wade

The Moon Tallahassee, Florida

12:21 P.M. EST   THE VICE PRESIDENT:  Thank you.  (Applause.)  Dr. Sujatha Prabhakaran, where are you?  There she is.  She just left the stage — (laughs) — but is always on the stage.    AUDIENCE MEMBER:  We love you!   THE VICE PRESIDENT:  And we love all of our frontline folks.  And this room is filled with them.  (Applause.)  Filled with them.   Good afternoon, everyone.  It is good to be back in Florida.  (Applause.)   AUDIENCE MEMBER:  (Inaudible) Tallahassee.   THE VICE PRESIDENT:  And Tallahassee in the house.  (Applause.)   So, before we — before we talk about the subject for which we are all convened, I do want to address the tragedy of what happened in my state, in Monterey Park, California.  A time of a cultural celebration, and yet another community has been torn apart by senseless gun violence.   So Doug and I join the President and Dr. Biden and I know everyone here in mourning for those who were killed, as we pray for those who were injured, and as we grieve for those many people whose lives are forever changed.   All of us in this room and in our country understand this violence must stop.   And President Biden and I and our administration will continue to provide full support to the local authorities as we learn more.   And with that, I want to address another topic, which is the reason that we all join together today.  I am honored to be with members of United States Congress who are here, state and local elected officials — (applause) —   AUDIENCE MEMBER:  Thank you for coming!   THE VICE PRESIDENT:  I’m glad to be with you.  (Applause.)   And all of the coalition partners who are represented here.  (Applause.)  Let’s give it up for everyone.  (Applause.)   So we are here together because we collectively believe and know America is a promise.  America is a promise.  It is a promise of freedom and liberty — not for some, but for all.  (Applause.)   A promise we made in the Declaration of Independence that we are each endowed with the right to liberty and the pursuit of happiness.  (Applause.)   Be clear.  These rights were not bestowed upon us.  They belong to us as Americans.  (Applause.)   And it is that freedom and liberty that enabled generations of Americans to chart their own course and decide their own future with, yes, ambition and aspiration.  Therein lies the strength of our nation.    And since our founding, we have then been on a march forward to fully realize our promise to complete the unfinished work to secure freedom and liberty for all.  (Applause.)   Now, these outcomes will not be inevitable.  They will not just happen.  It takes steadfast determination and dedication.  The kind of determination and dedication possessed by some of our greatest patriots: those Americans who fought a Civil War to end the sin of slavery — (applause) — who organized at Seneca Falls to secure a woman’s right to vote — (applause) — who launched the Freedom Rides to advance civil rights — (applause) — and spoke out at the Stonewall Inn to defend human rights.  (Applause.)   In each of these movements, those leaders expanded rights which then advanced the cause of freedom and liberty.   And 50 years ago today, so did those who won a fight in the United States Supreme Court to recognize the fundamental constitutional right of a woman to make decisions about her own body — (applause) — not the government.  (Applause.) For nearly 50 years, Americans relied on the rights that Roe protected.  Today, however, on what would have been its 50th anniversary, we speak of the Roe decision in the past tense —   AUDIENCE:  Booo —   THE VICE PRESIDENT:  — because, last June, the United States Supreme Court took away that constitutional right — a fundamental right, a basic freedom — from the people of America —   AUDIENCE:  Booo —   THE VICE PRESIDENT:  — from the women of America.   The Court’s action has meant already that many dedicated doctors and nurses now lose their ability to care for their patients, that providers risk going to jail just for doing their job, and that patients are denied critical care and even fear that they will be punished simply for seeking care.   It has meant that a 10-year-old child in Ohio who was sexually assaulted and became pregnant had to leave her home — had to leave her home state and travel to another to receive care.  It has meant that the doctor who treated her faced death threats and efforts to take away her medical license.   And for Amanda, a 35-year-old woman in Texas, it meant, in the midst of a miscarriage, she was denied treatment three times in three days at an emergency room because of that state’s abortion ban.  And only after she developed sepsis, an infection that almost killed her, did the hospital finally admit her.   Thank God Amanda survived.  And she, with her husband, Josh, is here today.  (Applause.)  And I want to thank them both for having the courage to tell their story in a way that will inspire so many individuals and their families to know they are not alone.    The consequences of the Supreme Court’s ruling are not only limited to those who need reproductive care.  Other basic healthcare is at risk.    Consider Emma, a 14-year-old who lives in Arizona.  So Emma manages her chronic arthritis with medication that allows her to go to school and live without constant pain.  But the medication that helps her can also cause pregnancy loss.  So within weeks of the Dobbs decision, her pharmacy initially refused to fill her prescription, afraid that they could be prosecuted under the state’s radical law.   All of these devastating experiences — the direct result of laws designed by extremists, including in states like Florida.  (Applause.)   Last year, so-called leaders at the state House here in Tallahassee —   AUDIENCE:  Booo —   THE VICE PRESIDENT:  — passed a radical abortion ban with no exceptions even for the survivors of crimes like rape and child molestation and human trafficking.   AUDIENCE:  Booo —   THE VICE PRESIDENT:  Here in Florida, healthcare providers face prison — prison for up to five years for simply doing their job.    And now the state has also targeted medication abortion and even threatened Florida pharmacists with criminal charges if they provide medications prescribed by medical professionals.   And Florida is not alone.  Twenty-two states have announced they will not follow new federal rules that allow women to get medication prescribed by their doctor from a certified pharmacy.  Imagine.   So, today, we are fighting back.  (Applause.)   I’m pleased to announce that President Biden — I’m announcing it today — has issued a presidential memorandum on this issue.   Members of our Cabinet and our administration are now directed, as of the President’s order, to identify barriers to access to prescription medication and to recommend actions to make sure that doctors can legally prescribe, that pharmacies can dispense, and that women can secure safe and effective medication.  (Applause.)   So President Biden has done that.   At the same time that we work to protect this aspect of reproductive care, many states have gone even further and now have total bans in effect.   AUDIENCE:  Booo —   THE VICE PRESIDENT:  Alabama, Missouri, and South Dakota, just to name a few.   And as — as clinics close in those states — understand, as clinics are closing in those states, patients have lost access to other basic care such as routine check-ups, cancer screenings, and contraception.   And to everyone listening, be sure, no one is immune from these impacts, even in states that protect reproductive rights like New Jersey, Illinois, Oregon.  Even then, people live in fear of what might be next because Republicans in Congress are now calling for a nationwide abortion ban.   AUDIENCE:  Booo —   THE VICE PRESIDENT:  Some even from the moment of conception.    The right of every woman in every state in this country to make decisions about her own body is on the line.  And I’ve said it before, and I will say it again: How dare they?  (Applause.)  How dare they?   And, you know, there is a collection of words — there is a collection of words that mean everything to us as Americans: the heartfelt words of our great National Anthem.  That America is the land of the free and the home of the brave.   But let us ask, can we truly be free if a woman cannot make decisions about her own body?   AUDIENCE:  Nooo —   THE VICE PRESIDENT:  Can we truly be free if a doctor cannot care for her patients?   AUDIENCE:  Nooo —   THE VICE PRESIDENT:  Can we truly be free if families cannot make intimate decisions about the course of their own lives?   AUDIENCE:  Nooo —   THE VICE PRESIDENT:  And can we truly be free if so-called leaders claim to be, quote — I quote, “on the vanguard of freedom,” while they dare to restrict the rights of the American people and attack the very foundations of freedom?  (Applause.)   Understand clearly, the majority of Americans — the majority of Americans oppose these attacks.   Americans of every background, in every community have voiced their perspective: from Kansas to California, Michigan, Montana, Kentucky, and Vermont.  They spoke with their vote.   In essence, they said, one does not have to abandon their faith or deeply held beliefs to agree that the government should not be telling people what to do with their own bodies.  (Applause.)   So know this: President Biden and I agree, and we will never back down.  We will not back down.  (Applause.)  And we know — we know this fight will not be won until we secure this right for every American.   Congress must pass a bill that protects freedom and liberty.  (Applause.)  A bill that protects reproductive rights.  And President Biden will sign it.  (Applause.)   So, yes, America is a promise.  A promise we must all make real in every state and every community, in every statehouse, in every doctor’s office, and, yes, in every election.   So to all the friends and leaders, I say: Let us not be tired or discouraged, because we’re on the right side of history.  (Applause.)   So we will continue to stand together in the fight to protect the freedom and liberty of all people, of all women everywhere.   And here and now, on this 50th anniversary, let us resolve to make history and secure this right.  (Applause.)   Today, I invite all Americans to join us, and to remember: When we fight, we win.  (Applause.)   Thank you all.  May God bless you.  And may God bless America.  Thank you all.  (Applause.)                           END                12:39 P.M. EST    

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