Herstory: Roe v. Wade and the Future of Privacy Rights

June 13, 2022
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Executive Summary

In the 50 years since the landmark ruling of Roe v Wade, abortion has been a hotly contested issue.

Introduction

History of Roe v. Wade 

Current Stances

Roe v. Wade is a Supreme Court Ruling from 1973. In this case, the Supreme Court ruled that the constitution upholds the right for pregnant women to choose to have an abortion without excessive government restriction. However, recently there has been a push from a multitude of states to overturn that ruling. The case for Roe v. Wade started back in 1970 when Norma McCorvey - going by Jane Roe in the case to protect her identity - fought a legal battle against the district attorney of Dallas County, Henry Wade. McCorvey was pregnant with her third child but wanted an abortion. She believed that the Texas abortion laws were unconstitutional because abortions were illegal unless there were life threatening circumstances. Initially, the Supreme Court did not side with McCorvey in her support of women’s privacy and personal autonomy.  One of the justices presiding over the case, Harry Blackmun, asserted that the only way for a justifiable limitation of fundamental rights to be legal was with compelling state interest. Therefore, the state must prove that the issue at hand demonstrates a legitimate state interest. The Court attempted to strike a balance between the interests of the state in the health of pregnant women and the lives of the fetuses. The Court also noted the state's compelling interest in the pregnant woman's health would allow them to regulate the abortion laws at the end of the first trimester of pregnancy, or when the fetus could be viable on its own. 

On January 22nd, 1973, the Court ruled in a 7-2 decision that restrictive state regulation of abortion is unconstitutional. The Court held that the laws in Texas regarding abortion violated a woman's constitutional right to privacy and that when a state outlaws abortion, it infringes upon a woman's right to privacy. Additionally, it can cause physiological harm to both the mother and the child. On the other hand, the Court dismissed the idea that the right to privacy was absolute. The Court instead believed that there must be a balance between the interests of the government - such as their want to protect the fetus's life - and the rights of women. The Court held that the existing state interest gave the states some opportunity to impose a few limits on a pregnant woman's right to have an abortion.

Since the ruling in 1973, there have been many challenges to Roe v. Wade. These challenges have narrowed the scope of the ruling but have not overturned it. In 1992, the case Planned Parenthood of Southeastern Pennsylvania v. Casey made it to the Supreme Court. The Court ruled that the restrictions on abortions are unconstitutional if they place an "undue burden" on a woman who seeks an abortion. However, those “undue burdens” must happen before the fetus is viable. 

Other impactful cases have been Gonzales v. Carhart, when the Court ruled on the Partial-Birth Abortion Ban Act (2003), which banned the intact dilation and evacuation procedure. More recently, in 2016, the Court used the decision in Casey to reject provisions proposed in a Texas law requiring abortion clinics to meet the standards of ambulatory centers. In 2020, the Court invoked the same decision to declare a Louisiana law unconstitutional.   

In May 2021, Texas passed a controversial law banning nearly all abortions after the detection of fetal cardiac activity. This usually equates to the sixth week of pregnancy and was very different existing legislation throughout the U.S. because it placed power on private citizens to enforce the law by allowing Texans to file lawsuits against people who perform abortions or aid in abortions after six weeks. Two weeks before its passing, a group of abortion providers filed a request to the Supreme Court to block its enforcement. After three days, the Supreme Court ruled in a 5-4 decision to abstain from intervening in the matter. They believed that it was unclear whether the defendants would seek to enforce the Texas law, requiring action from the Supreme Court. However, this ruling did not mean that the Supreme Court decided that the law was constitutional. Later, in October, the US Justice Department filed an emergency claim to the Court, requesting to vacate an appeals court's stay of a federal district court's order. This temporarily blocked the enforcement of the law. The Court agreed to an expedited review of both cases, asking similar questions: if a state can prevent a federal court review through the public, and if the federal government can sue Texas State officials and private citizens to prevent the law. In Whole Woman's Health v. Jackson, the Court ruled that the plaintiffs had the choice to challenge Texas's law in federal court against state officials. In the DOJ's case, the Court decided that it should be dismissed because the case was wrongly accepted.  

In May 2022, there was a news article released, which was a draft by Justice Samuel A. Alito Jr., in which the Court ruled to overturn Roe v. Wade and Planned Parenthood V. Casey. The groundworks are being placed for an America without the Roe v. Wade ruling. Many state officials are testing the limits of the legal boundaries set by the laws that enforce mandatory ultrasounds, or gestational limits. Some of these bills have had some success, but most have dealt minimal damage to the Roe v. Wade ruling as the Supreme Court stepped in to overturn the legislation. However, the Supreme Court has added three conservative justices, which has changed the majority to conservative, meaning that legal abortion is in greater jeopardy. With the impending overrule decision, we must understand the decision's potential implications and how it will change the United States.

Policy Analysis

Right to Privacy 

The right to privacy as a form of legal reasoning began its development in the 19th century and has since evolved to encompass rights of self-autonomy. The debate surrounding the right to privacy began in 1891 with Union Pacific Co. v. Botsford, in which plaintiff Clara L. Botsford sued Union Pacific Railway Company for negligence in construction and care. During the trial the plaintiff was asked by the defendant to submit herself to a surgical examination to confirm the diagnosis of the case, a request denied by both the plaintiff and the court. The ruling in this case established that under common and statutory law there exists no authority to compel someone to submit to a medical examination against their will. This meant that the United States had throughout its legal history maintained an ideological stance that placed the sovereignty of self at the center of its values, as such this right could not be encroached upon by any individual. 

Similar reasoning was applied in the case of Griswold v. Connecticut, which expanded on the ideas of privacy-first presented in Union Pacific Co. v. Botsford, substantiating them through the Fourteenth Amendment. Griswold v. Connecticut involved the overturning of a century-long ban on contraceptives by the state of Connecticut, a challenge fought by Estelle Griswold, head of Planned Parenthood in Connecticut. In a 7 to 2 decision, it was ruled that the right to privacy, which in this case meant the right to marital privacy, could be found within the Constitution. In the majority decision authored by Justice Douglas, it was deemed that while the right to privacy was not explicitly stated in the Constitution it was found within the “penumbras'' of constitutional amendments, stating that this privacy resulted from specific guarantees found in the First, Third, Fourth, and Ninth Amendments. In concurring opinions, Justices Goldberg, Harlan, and White found that the argument for the right to privacy was found in the Fourteenth Amendment. It was argued that since the Fourteenth Amendment extended the rights promised in the Bill of Rights to states then the penumbras cast by the aforementioned Amendments could be applied to the States. These rulings established that the Bill of Rights created “zones of privacy” that the government could not impede upon and, in accordance with the 14th Amendment’s Due Process Clause, states had to abide by these zones. Up until the late 1970s, the debate around the right to privacy had been largely centered around the control one had over one’s self in relation to oneself.  What is meant by this is that when a choice related to personal and moral decisions arose it was generally agreed upon that such choices would be handled by individuals.  

The question of the right to privacy in relation to others was opened up by McFall v. Shimp. In McFall v. Shimp, plaintiff Robert McFall was diagnosed with a rare form of bone marrow disease, in which he required an urgent bone marrow transfusion or risked death.  The only suitable donor was his first cousin David Shimp, who refused this request, resulting in the lawsuit. The court led by Judge Flaherty ruled in favor of Shimp, agreeing that it is not possible to force another person to donate body parts even if it is deemed a medical necessity. It was concluded that to force a person to submit to an intrusion of their body for any reason would violate beliefs of self-autonomy long held by the Courts and American people. The ruling, in this case, emphasized the idea that an individual’s purpose is not to serve society as a whole nor could courts intervene based on the moral fallibility of an individual’s choice. Throughout its history, the legal reasoning behind the right to privacy has evolved to encompass increasingly more situations, providing protections for individuals both in relation to themselves and others, demonstrating the Courts and Country’s long-standing commitment to self-autonomy.  

Implications 

The impact of Roe v. Wade being overturned will be felt across the United States, with Southern states and marginalized women - especially Black women - being the communities experiencing after effects of the ruling the most.

The individuals who will be affected the most by the overturning Roe v. Wade statistically include women who are in their late-20s, attended at least some college, are unmarried, and have children already, as they are the most likely demographic to get an abortion. 49% of women who recieve an abortion are low income, according to the New York Times and Guttmacher Institute. Low-income women are more likely to have an abortion due to the high costs of contraceptives to prevent pregnancy, lack of education around sexual health and conception within public schooling, and costs of healthcare for mothers. 9% of  teen individuals obtain an abortion, and 58% of people getting an abortion report that it is their first abortion.  46% are unmarried and single. 

Additionally, as more states—particularly in the South— continue to repeal abortion rights, individuals will continue to travel to surrounding states to obtain abortions. In Texas, new abortion laws have forced residents to travel elsewhere for an abortion, causing Oklahoma to absorb more than 600 additional patients per month. Two out of four of Oklahoma’s abortion clinics have been forced to close after Oklahoma’s recent six-week abortion ban, making it more difficult for women from Texas and Oklahoma to receive abortions. Travelling to receive abortions disproportionately affects impoverished women, as taking time off of work to drive several hours is unfeasible, especially if a car isn’t owned. Increased travel and increased moves to surrounding states without abortion bans is anticipated after the expected overturn of Roe v. Wade. Countries like Canada and Mexico will remain options for many individuals seeking an abortion, with the Canadian Family Minister reiterating Canada’s stance by writing that if people need abortions, “that’s a service that would be provided.” Thus, the communities experiencing the overturning of Roe vs. Wade the most include low-income and minority women and communities of women in Southern states. 

After the overturn of Roe v. Wade, the maternal mortality rate will increase, according to research by the University of Colorado. According to the Centers for Diasease Control, “carrying a pregnancy to term is 33 times riskier than having an abortion.” An abortion ban would result in a “21% increase in the number of pregnancy-related deaths overall” and a disproportionately high increase in the maternal mortality rate of Black women, with a “33% increase.” This percentage does not include the increased deaths due to unsafe attempted abortions.

Conclusion

The possible overturn of Roe v. Wade has created tension within the United States, due to ideals such as the right to privacy being broken. The right to privacy has become a major basis for abortion rights legally, stating that one has a right to govern one’s body and to be able to make decisions about one’s body independently. These rights have been backed by constitutional amendments. Along with the right to privacy, a main topic introduced by the overturn of Roe v. Wade has been health issues. 

Overturning this prominent Supreme Court case raises concerns about the rise of the maternal mortality rate and the impact on marginalized communities. Restricting access to safe abortions would result in an increase in the number of pregnancy-related deaths, and would force women to resort to traveling to other states or outside of the country. Previous challenges to abortion rights have demonstrated that individuals will be forced to travel to nearby states, limiting opportunities for low-income women. Also shown by the current legislation by state governments, decreasing ways to have a safe abortion increases risks for all women, especially those who do not have the means to search for alternate options.

Author Information

Aneesh Mazumder
Social Policy Brief Analyst

Aneesh Mazumder is a Texas Academy of Mathematics and Science (TAMS) junior. Aneesh is involved in his school's speech and debate team, a Texas state qualifier for policy debating in multiple competition (TFA and UIL) formats, and was the Policy team captain at his previous school. Aneesh loves competitive math and conducting scientific research. Aneesh enjoys playing tennis and participating in various community enablement activities in his free time.

Sydney Rehm
Social Policy Intern

Sydney Rehm is a student at the University of Mississippi studying Arabic, International Studies, and Intelligence and Security Studies. Outside of school, she likes to dance, read, play clarinet, listen to international politics podcasts, and play with her cat, Ivy.

Gracie Adams
Social Policy Brief Analyst

Gracie Adams is a sophomore at Park Hill High School in Missouri. She is involved in the speech and debate team at her school, writes for her school newspaper, and is a policy fellow at Encode Justice. In her free time, she enjoys doing color guard and reading.

Elizabeth Miller
Social Policy Lead

Elizabeth Miller is a freshman at Hastings College in Nebraska studying Business Management and Political Science. She fell in love with politics through years of high school speech and debate and as a result became involved with local politics as an election judge and volunteer. Elizabeth is excited to write for YIP as it combines writing and politics - two of her favorite things.

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