Perhaps no other ruling in the long history of the U.S. Supreme Court has been as controversial and divisive as the Roe v. Wade decision of Jan. 22, 1973, that legalized abortion. Using the doctrine of judicial review first enacted by the Marshall Court in 1803, the Supreme Court decided that laws restricting a woman’s right to abortion were unconstitutional, ruling that such laws invaded a woman’s right to privacy as protected by the Due Process clause of the Fourteenth Amendment.

The Court ruled that a woman has the right to an abortion until the “point at which the fetus becomes ‘viable,’” defined as the ability “to live outside the mother’s womb, albeit with artificial aid.” The Court said that for most pregnancies this occurs at the 28th week, though viability may occur sooner in some cases. Even after viability, the Court ruled, abortion must be available to protect the health of the mother.

Jane Roe was an alias for a woman (who has since identified herself as Norma L. McCorvey) who sued Dallas County District Attorney Henry Wade, representing the state of Texas, because Texas law banned abortion except in the case of incest, rape, or to save the woman’s life. Because these exceptions did not apply to McCorvey’s case, she sued for the right to make her own decision about abortion.

The local paper, the Dallas Morning News, followed the case closely. It was first argued before the Supreme Court on Dec. 13, 1971, then reargued Oct. 11, 1972. In reporting on the Court’s final decision in 1973, the newspaper presciently stated: “No decision in the court’s history—even those outlawing school segregation and capital punishment—has evoked the controversy expected to erupt from this decision,” controversy that shows no signs of diminishing 40 years after the Roe v. Wade ruling.

Here is that news report, published by the Dallas Morning News (Dallas, Texas) on Jan. 23, 1973:

Court Overrules Texas Abortion Law

By Karen Elliott
Washington Bureau

Washington—The U.S. Supreme Court struck down Texas abortion laws Monday as an unconstitutional invasion of privacy that interferes with a woman’s right to control of her body.

With only the consent of her physician, a woman may have an abortion in her first three months of pregnancy. Thereafter, only minor restrictions such as licensing of the abortion facilities and a ban on late termination of pregnancies is permissible, the court majority ruled.

The historic ruling leaves Texas without an abortion law and invalidates similar laws in 30 other states. Texas now permits abortion only to save the mother’s life or in cases of rape or incest.

Jane Roe, an anonymous single woman whose identity is known only to her lawyer, went to her doctor in Dallas in 1969 seeking an abortion. She was told that because her health was not endangered by the pregnancy she must bear the child. She did but sued Dallas County Attorney Henry Wade, who enforces the abortion statute.

Now some three years later the Supreme Court, in a 7 to 2 decision, has ruled that Jane Roe and other women like her are entitled to control their bodies.

“To reach this 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,” Justice William Rehnquist complained in a dissenting opinion. He was joined by Justice Byron White.

But seven other justices, including Chief Justice Warren Burger, agreed that the right to abortion is “within the personal liberty protected by the Due Process clause of the Fourteenth Amendment.”

No decision in the court’s history—even those outlawing school segregation and capital punishment—has evoked the controversy expected to erupt from this decision.

The 7-to-2 ruling ends 13 months of wrangling among the justices, who agreed last year to the same decision. However, the opinion was withheld while the court again heard the case after Justice Rehnquist and Justice Lewis Powell joined the court.

The high court’s opinion closely parallels the ruling nearly two years ago by a 3-judge federal panel in Dallas who heard Jane Roe’s case. It was an appeal from the decision of Judges Sarah T. Hughes, William Taylor Jr. and Irving Goldberg, that sent the Texas case to the Supreme Court.

Without answering the question of when life begins for the fetus, the court majority concluded that “at a point” during pregnancy the state’s interest in protecting a new life is “compelling.”

Dividing a woman’s pregnancy into 3-month trimesters the court ruled that in the first trimester the state has no right to restrict abortion. During the next three months minimal curbs are permitted. After six months when the fetus is capable of life outside the womb, the state may proscribe abortion, except when necessary to save the mother’s life, the court said.

“Appellants’ arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, is unpersuasive,” the court wrote in permitting some restrictions to remain.

However, the court defined health in broad terms including physical, emotional, psychological, familial and the woman’s age, apparently meaning that even in late months abortion for reasons of health will be more easily obtainable than under current laws.

The basis for the Supreme Court’s ruling is a 1965 Supreme Court ruling that struck down Connecticut’s anti-contraception law and for the first time recognized a right to privacy in family sexual and other matters.

“It is evident that the Texas abortion statute infringes that right directly,” Justice Potter Stewart wrote in a concurring opinion. “Indeed, it is difficult to imagine a more complete abridgement of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas.”

Justice Burger in a separate concurring opinion, also called the Texas law “rigid and narrow” but added he does not view the court’s opinion as “sweeping.” Doctors, he said, will observe the standards of their profession and permit abortion only on the basis of “carefully deliberated medical judgments…”

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