Roe v. Wade

Roe v. Wade (1973)  is at the heart of Jamal Greene’s book How Rights Went Wrong, my next book. It marks the apogee of the trajectory of the Warren Court, though it was decided after he retired. The opinion was handed down during my last year in law school, and I must have read it then, but I hadn’t read since. The name, if not the reasoning, became an icon for our understanding of our rights. And then, the current SCOTUS majority reminded us that they’re in charge of our liberty, and not some ancient version of SCOTUS from 50 years ago.

In this post, I’ll discuss the holding and reasoning of the Roe majority, written by Harry Blackmun.  I’ll skip over the preliminary holdings, including standing, justiciability, and procedural issues.

Introductory context

Blackmun begins his analysis by stating that the Court is aware that the abortion is “sensitive” and “emotional”, and that people hold “deep and seemingly absolute convictions” the subject. People’s views on the subject are influenced by a wide variety of factors, ranging from religious doctrine to worries about population. But he has a job to do.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.

Facts and legal claims

Jane Roe was a single woman residing in Texas. Texas law made abortion a crime with exceptions “… for an abortion by. ‘medical advice for the purpose of saving the life of the mother.’ “. At the time she filed Roe was pregnant and wanted a safe abortion in Texas because she couldn’t afford to go to a state where it would be legal.

Roe claimed that the Texas statutes were unconstitutionally vague, and “… that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.”

Context and interests

Blackmun begins with a history of abortion laws from ancient times to the present “for such insight as that history may afford us”. He doesn’t mention the witch-hunter Matthew Hale. He then describes the past and current positions of three professional associations, the American Medical Association, the American Bar Association, and the American Public Health Association. These lay out the general legal and health situation at that time and the recommendations of those bodies.

Blackmun says there are three justifications for criminalizing abortion.

a) to discourage illicit behavior. Texas doesn’t make this argument.

b) to protect the pregnant woman. At the time of adoption of criminal punishment the procedures were dangerous, with a high mortality rate. With modern procedures, that is no longer the case, and abortions, at least in the early months, are safer than normal childbirth. Blackmun notes that there remain important health and safety issues that are properly the function of states. The interest of the states in protecting the woman’s health and safety increase as the pregnancy progresses.

c) to protect pre-natal life. Texas argues that “Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail.” Blackmun says that “as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.”

The Roe side argues that there is no reason to think that any of these statutes were intended to protect the fetus. There is no legislative history to support that view, and what there is discusses the health of the pregnant woman. The same is true for the case law.

These are the interests at stake.

The right to privacy

Blackmun says that there is a line of SCOTUS cases in which the Court recognized a zone of privacy for individuals, and lists cases in which provisions of the Bill of Rights were applied to create individual rights to be let alone, including Griswold v. Connecticut, the birth control case. He doesn’t repeat the analysis of Griswold, merely pointing out its roots in the 9th Amendment.

Blackmun holds that the a woman’s decision to get an abortion is within this zone of protection. He recites some of the burdens that Texas imposes on women, and the damage it does to them and their families. But that’s not the end of the discussion.

He’s already said that Texas has an interest in protecting the health of the woman, and in maintaining medical standards, and in protecting potential life. The right to privacy is not absolute. There are other interests that must be protected, and at some point the interests of that the state rightfully claims become dominant. He says this is the general position taken by most of the courts that have ruled on the issue.

Fetal personhood

In Section IX, Blackmun takes on the question of whether a fetus is a “person” within the meaning of the 14th Amendment. Blackmun recites every use of the word person in the Constitution. He says that none of them can be read to include “prenatal application.” Other courts agree. But that doesn’t fully exhaust the interests asserted by Texas.

Texas claims life begins at conception. Blackmun says that doctors and scientists can’t answer that question and gives examples Therefore the judiciary certainly can’t.

Blackmun says that to override a woman’s right to privacy Texas must show a compelling state interest.

We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, … and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’

This leads to the three part rule of Roe. In the first trimester, the dominant interest is that of the woman, and the state cannot show a compelling interest in her decision or in the means of effectuation. In the second trimester, the risk increases, justifying reasonable regulation related to the life and health of the woman.

After viability, roughly at the end of the second trimester, the interest of the state in protection of the fetus becomes dominant, and reasonable regulation to protect the fetus is justified, so long as it doesn’t impact the life or health of the mother.


1. In Dobbs v. Jackson Women’s Heath Organization,  Alito  claims that Roe is badly reasoned. Alito doesn’t like the history, maybe because it doesn’t mention any witch-hunters. He thinks Blackmun was required to show there were prior legal case recognizing a Constitutional right to abortion. He doesn’t like the three part regime. And he doesn’t like the idea of the zone of privacy at all.

Alito states that there is no basis in the Constitution for a right to an abortion. He says that whatever the privacy interests are, the states can evaluate them without regard to the Constitution. He flatly denies the existence of a constitutionally protected zone of privacy. He thinks the only limit on governmental intrusion is something he calls the principles of ordered liberty, which he doesn’t define, or something deeply rooted in our history and traditions. Alito says no new constitutional rights can ever exist, and we’re locked into a regime dominated by slavers and those willing to compromise with slavers; a regime where dominant males said women were second class citizens, despite the Reconstruction Amendments. Alito thinks federal and state governments can intrude into any area of private life with few exceptions.

Alito’s views are at the very beginning of his interminable opinion, and there’s a syllabus, a brief synopsis, at the beginning of the link. See for yourself.

Query: which opinion makes better sense of the world we live in?

2. After we go through Greene’s book we’ll take another look at this case.

53 replies
  1. Eschscholzia says:

    Thanks for this, as I don’t have the time (likely nor the background) to read & understand Roe.

    Is there something missing around paragraph 10? You say Blackmon had 3 reasons, then give a) and b) but not c).

    • c-i-v-i-l says:

      If you had the time to read Roe, I bet you’d find that you do have the background; at least, that was my experience as a non-lawyer. Re: paragraph 10, “The third reason is the State’s interest — some phrase it in terms of duty — in protecting prenatal life” (quoting Blackmun’s decision).

    • Ed Walker says:

      Yes, sadly I deleted that paragraph in editing. I’ll put it back. For now, civil has it right, and yes, you absolutely can understand it.

  2. RipNoLonger says:

    I have to wonder if Roe v. Wade wasn’t adopted 50 years ago, what the trajectory would have been. I was party to a trip to Mexico to have a botched abortion in the late 1960s that had to be, thankfully, repaired back in the US.

    If the increasing anti-war, anti-establishment, pro-feminist freedom had continued without the legal remedies of Roe v. Wade, how would this have played out? The rich always had access to abortions (as now even in Texas). This was also the period when many forms of contraception were available but never guaranteed.

    Probably a very different world. Maybe Alito’s and Coney-Barret’s handmaids would have been here in the 1980s. Coney Barrett wasn’t even yet born back then.

    • dopefish says:

      Republicans are working on undermining the right to contraception right now.

      USA Today opinion piece by Sara Pequeño.
      Republicans want to control women so much they voted against protecting contraception

      Julianne McShane writing at Mother Jones:
      59 Years Ago SCOTUS Guaranteed Access to Birth Control. Now, That and Much More Is Under Threat.

      If you care about American women being first-class citizens with the right to control their own bodies, please vote accordingly in November.

    • Rugger_9 says:

      IIRC, abortion rights had been enacted in most states by their legislatures because of some of the more egregious cases of back-alley abortions killing women. What Roe did was to short-circuit the slower process and that was too much for the panty-sniffers. FWIW, even most of the evangelicals / fundamentalists were OK with abortion before it became a litmus test.

    • Error Prone says:

      Self-anointed Originalists, touting original text, seem to ignore the Ninth Amendment, as original text. Norms of judicial restraint have marginalized it, but, hey, It’s there. Original.

      So “originalists” should have to deal with it. Alito included.

      Blackmun’s majority opinion in Roe mentions Griswold penumbral rights, but also mentions the Ninth Amendment. A word search = Ninth is informative. Try it. I used the LII Roe majority text to search;

      Opening up a Ninth Amendment body of law would prove interesting. Were it to ever happen. The more rights I have the better is a general thought. I wonder why Libertarians are not Ninth Amendment loud-mouths. They might suspect more actual rights could lead to more government, via enforcement of the rights of some vs rights of others. Such as Roosevelt’s Four Freedoms for many vs. a right to unlimited accrual.

      • Ed Walker says:

        This is an insightful comment. Part of the problem lies in our all-or-nothing vision of constitutional rights. If you have them the state is powerless. If you don’t have constitutional rights, your liberty can be restricted and your live can be invaded, if the state legislates against your interests. The obvious example is guns under the current SCOTUS majority.

        Roe seems to involve a different approach, recognizing that rights have limits, including the rights of others and the rights and needs of society.

        This is an issue raised in Greene’s book. We’ll look at it again.

        • BRUCE F COLE says:

          As you state in your essay, “The right to privacy is not absolute.” That’s certainly part of the problem with Roe, and the reason I think the overturning of Dobbs needs to come at from the solid Constitutional absolutism that is expressed in the Establishment Clause.

          I’ve noted that pro-choice advocates, including picketers against Dobbs in all its State-issued manifestations, as well as by Hillary and other Dem leaders recently, have finally been picking up on this approach. Here’s how I’ve framed it on this site previously, during the IVF fiasco in AL recently:

          Opposition to abortion pre-viability is based entirely on a belief system that says God embues a fertilized human egg at the moment of fertilization with a soul, and that’s how a frozen fertilized egg is considered a human being worthy of the “right to life.” It really is that simple, and as such it is a blatant imposition of religious doctrine which should never have been allowed under that dictum of the First Amendment.

          Hillary did a good job of explaining that recently (sorry, I can’t find a link for it but she honed in on it very well) and Sotomayor touched on it in her questioning during the Dobbs arguments:

          Note also in that article that this 1A approach to the Desecration of Dobbs took hold even as the ruling was being handed down.

          In hindsight, privacy was weak sauce, full stop.

          Dobbs is a religious edict. That obvious truth should already be the spear-point of any number of lawsuits designed to overthrow it by now.

          One of the most telling reactions to Dobbs, that illuminates just how potent that argument will be, was expressed in the Dusquesne University publication shortly after Dobbs was handed down.

          Lawyers intent on overthrowing Dobbs via 1A arguments should study that essay. It is likely to be employed to counter that necessary effort.

        • c-i-v-i-l says:

          Reply to Bruce Cole
          June 10, 2024 at 5:52 pm

          I don’t agree that “Opposition to abortion pre-viability is based entirely on a belief system that says God embues a fertilized human egg at the moment of fertilization with a soul.” After all, there are atheists who are anti-abortion. That said, I do believe that most opposition is religious.

          Ledewitz is wrong in his paper when he claims that “The right to abortion fails as an independent constitutional right because it is not grounded in history and tradition.” As noted in the Dobbs amicus brief from the American Historical Association and the Organization of American Historians (, for much of US history, abortion prior to quickening was generally legal and not even recognized as abortion.

          Ledewitz is also wrong that “If it were not for the issue of abortion, the idea that a human life begins at conception would not even be controversial. For when else could it begin?” The biology article I noted in my earlier comment ( discusses why.

      • earlofhuntingdon says:

        When you’re more interested in taking away rights, like the current S.Ct. majority, rather than recognizing them, the Ninth Amendment tends to get in the way.

    • Bob Roundhead says:

      Fetal personhood is not a biblically supported idea either, despite the claims of the Christian fundamentalists. The Bible clearly states that human life begins when the spirit enters the body upon first breath, not conception.

      • ExRacerX says:

        “The Bible” (which one?) doesn’t “clearly state” much, as far as I’ve found. Even if one concedes it started with the “word of ‘God,'” it’s been edited, annotated, exegeted, translated, de-translated, and re-translated so many times that any “point” found therein is moot, even down to the simplest bits such as the “10 Commandments.” Clearly, “Thou shalt not kill” means something different to different Christian sects…

        • Bob Roundhead says:

          Sure it does. In Genesis 2:7 it is unequivocal about life beginning with breath. This idea has been biblical dogma since before the New Testament. I agree though with the confusion created by all these translations.

  3. bgThenNow says:

    It has been some years since I read Caroline Kennedy and Ellen Alderman’s book “The Right to Privacy, a right which is not in the Constitution (as I am sure Alito and Thomas are eager to point out). The book uses various SC rulings that began to develop the construct/concept of such a right.

    I’ve been waiting for them to dismantle more than a century of legal findings for privacy, which I am sure they would like to do, except in their personal cases, as PJ Evans mentions above.

  4. gertibird says:

    All this talk about the personhood of the fetus is merely about controlling women. Period. it’s not about life at all. We can see that because society has no problem with a child or an adult dying because no person including the mother, father or some relative chooses to donate a kidney, bone marrow, liver or blood to save that person’s life. But when a woman chooses to have an abortion so many (mainly men) get all up in arms. Abortion should be the choice of the woman always.

  5. earlofhuntingdon says:

    “Ordered liberty” is, like “deliberate speed,” an oxymoron. It assumes a conflict without resolving it. Conveniently for Alito, that leaves its resolution to the discretion of a Supreme Court that has decided it is subject to no restriction by the executive or legislature, and imposes none on itself.

    Alito’s notion of the limits of state power seems very 17th century, exactly the sort of virtually unlimited power that the British themselves came to oppose, as American Revolution, which makes it vehemently anti-constitutional. Alito knows that, but ignores it, because he prefers an overtly christianist, white male-dominated society and the priorities its wealth elite would impose on others. He’s as transparent as Donald Trump.

    • MsJennyMD says:

      Alito inspired by 17-Century antiabortion while ignoring 21st Century women’s reproductive rights, however his wife is a flag feminist.

    • Ed Walker says:

      I agree with EoH and MsJennyMD. I try really hard to avoid rage posting, and this one was especially rage-inducing. I deleted a number of insults and edited out all the foul language. Both kept intruding and the editing process was long and hard.

      But my loathing for Alito and the other cranks and rogues is deep and fired by fury.

      • MsJennyMD says:

        Yep, loathing works. I loathe some controlling judges and politicians making decisions for women about reproductive health. Perhaps judges “practicing medicine without a license” need to be prosecuted.

        • P J Evans says:

          The legislators who are deciding for others without sharing their burdens, and without listening to actual doctors and nurses, they also should be prosecuted for practicing medicine without a license. Even those who have been doctors are sure they know more than the rest of us, and stop listening to anything but their dear leader.

        • Robert Bancroft says:

          As do all the HIPAA violations. If you are not part of my treatment team, with signed consent, you have no right to access any of my private medical information. Every man and woman in America should say this point blank to any other citizen demanding private medical information.

    • Ebenezer Scrooge says:

      I don’t have a problem with “ordered liberty.” I take my cue from the younger Harlan, in Poe v. Ullman. Ordered liberty is violated if a criminal act is routinely done and approved by a large portion of the population. Hence, criminalization of–say–abortion or drug possession violates ordered liberty. Same with porn. Kiddie porn can be criminalized, because few do or approve of it.
      This is not a libertarian approach. The state is still free to define crimes of morality. It loses this freedom when its version of morality differs too much from the popular version.
      This reasoning applies to criminalization, not administrative offenses. I would still let the cops ticket speeders, although we have all sped from time to time.

      • earlofhuntingdon says:

        Who says Sam Alito defines “ordered liberty” the way you do or Chief Justice Harlan did?

        In Alito’s world, he assumes the role of Humpty Dumpty, for whom a word, “means just what I choose it to mean — neither more nor less.” Being a radical right politician, inconsistency is no problem for him.

  6. ernesto1581 says:

    Recommend recent Amicus podcast, 6/8/24: Dahlia Lithwick with Katherine Stewart (who has been reporting on the rise of Christian Nationalism in the US over the last 15 years) and Rachel Laser (Americans United for Separation of Church & State) discussing signs of the growing power of extremist christian ideologies in SCOTUS-land.

  7. Error Prone says:

    Under Roe, medical and clinical practitioners were on notice of protections if accommodating a woman’s choice. It is interesting how Blackmun’s majority denied standing to a physician-intervenor as to a criminal liability challenge, but then the three-trimester distinction the majority adopted, and strict scrutiny, gave physicians guidance and if a woman has a right to abortion in accord with the opinion, physicians acting on behalf of patients with that right, providing services in accord with a woman’s choice, could not be criminalized. So he made medical standards uniform nationwide, protecting practitioners conforming to the three trimester distinction as writ. Last, strict scrutiny over a fundamental right, second trimester, meant state statutory procedural standards such as second trimester abortions having to be performed in a hospital, but not in a capable clinic, would be struck down if litigated. Thus, properly equipped and staffed Planned Parenthood clinics, up to end of second trimester, would be authorized to abort (where prearrangement for expedited hospitalization upon unforeseen complications are part of the clinical practice). In practice over decades, Roe worked. Which may be why would-be intermeddlers into rights of others hated it so much.

  8. Magnet48 says:

    I’m thinking we need an amendment for the person’s right to bodily autonomy rather than a precise guarantee of abortion rights. That covers a broad range of applications & is not directed exclusively towards women, sort of like the original Bill of Rights. Who could find fault with everyone’s right to bodily autonomy? I’ll answer my own question, republicans of course.

    • paulka123 says:

      Agreed, especially with our nation’s history of eugenics and forced sterilization and inflicting diseases on unwilling/unknowing groups.

  9. paulka123 says:

    Correct me if I’m wrong, (please, I would love to be wrong), but how can Congress regulate protection of abortion if it is not a right, per Dobbs? (barring a Constitutional Amendment). I can see how abortion could be restricted through the Comstock Act or the inter-state commerce of abortion required equipment and medicines more broadly (I recognize the question gets technical with dual use medical devices). But how can Congress protect that medical act nationwide if it is not a right? And if there were I am sure that this SC would find a way to NOT recognize that authority. I would imagine there might be room for some protections of procedures on the edges but a return to Roe v Wade as the law of the land?

    • Ed Walker says:

      There is no telling what the six second-rate partisan hacks would do, but I think the 14th Amendment would be a sound basis. Congress would say that liberty includes the right to determine one’s own medical treatment, including abortion. The 14th Amendment expressly empowers Congress to legislate to enforce its terms.

      Because the six ideologues think they are beyond control, I expect Congress would have to strip their jurisdiction over this issue, and make it an impeachable offense to attempt in any way to interfere with it.
      Better lawyers than I am can probably offer a better ground.

  10. EuroTark says:

    Some thoughts opinions from a non-USian:

    My (very) personal stance is that late-term abortions should be avoided wherever possible, and with modern medicine increasing the survival rate for extreme premature births the barriers between late-term abortions and viable births grows ever closer. Latest numbers I could find had a 65% survival rate as early as gestational week 23, and 94% from gw 27 onwards.

    However, my (again very personal) belief is that the best way to avoid late-term abortions is to make early abortions as easy and accessible as possible, while accepting that some late-term abortions are simply unavoidable for a multitide reasons. The other best ways to avoid abortions is access to effective contraceptives and early sexual education.

    Thus, I don’t think it’s a stretch to come to the conclusion that “the cruelty is the point.” Abortion is one of the areas where the judiciary should give quite a bit of deferrence to the medical expertise.

    • harpie says:

      In my opinion, it is a travesty that the Judiciary has
      anything at all to do with the decisions of medical experts and their patients.

      • EuroTark says:

        The law over here is currently that abortions are freely available up until gw12, after which you need the approval of a tribunal. There is no legal upper limit, but an understanding that the further along the pregnancy is, the better your reasons needs to be. In general, there’s a 95% approval rate in the tribunals. There was just a large formal inquiry into how the the system can be changed, and while nothing is yet decided it’s likely moving towards free until 18 gw.

        However, one of the opinion pieces I read, had what I believe was a good argument: Don’t legislate it at all: Leave it as a medical procedure in which the medical professionals can make a decisions for what is best in each individual case.

    • Clare Kelly says:

      “The phrase “late-term abortion” is medically inaccurate and has no clinical meaning. In science and medicine, it’s essential to use language precisely. In pregnancy, to be “late term” means to be past 41 weeks gestation, or past a patient’s due date. Abortions do not occur in this time period, so the phrase is contradictory.”

      Jessica Ravitz
      February 6, 2019
      “Before judging ‘late-term abortion,’ understand what it means, doctors say”

      • EuroTark says:

        Apologies, English is not my native tongue, so it’s easy to fall into common tongue translations. Here we just call them “late-abortions.” which is usually meant to be after 18 gw (although some use it as early as 12 gw)

        • Clare Kelly says:


          Thanks for the reply.

          While it may seem to be merely semantics, language surrounding reproductive health care is important. So much so that Christian Nationalists have made a concerted effort to commandeer it.

          For example, treatment options for spontaneous abortions, colloquially referred to as ‘miscarriage’ and impervious to both domestic and international borders, include mifepristone-misoprostol regimes and D and C’s.

          Both of the above treatments are now effectively banned in sixteen US states, and limited in an additional fifteen states as of 6/7/24*.

          On March 26, 2024, SCOTUS heard oral arguments regarding a Texas court’s decision to restrict mifepristone access and overturn the 2000 FDA approval of said.

          The same judge in the above case is now poised to hear a frothy-RW trifecta case challenging reproductive health care and Title IX, while demanding “the freedom to discriminate against students and teaching assistants who identify as LGBTQ.” **

          Hijacking the language surrounding the fundamental human right to reproductive autonomy is by no means a mere cog in the wheel of organizations like “Alliance Defending Freedom”.

          *Interactive Map: US Abortion Policies and Access After Roe


  11. Mustellus says:

    Blackmun actually stooped to using reality when he formulated his three part analysis of Roe. As noted above, the opposition is based on religious belief, largely untethered from even the Bible. But another point of reality is that implantation of the fertilized ovum is only about 50% efficient. So, if human life begins at conception, then over half of all humans die. They die before implantation. They die as the wet spot on the bed dries out. They die on the tissue thrown in the trash. They die on the panties tossed in the hamper. The biggest hypocrisy in the anti-abortion movement is that they ignore this reality. I’ve taken to calling it a ‘dribble abortion’, and accusing the fervently religious of being baby murderers.

    • c-i-v-i-l says:

      The process of fertilization takes about 24 hours, and pre-implantation embryo death occurs either in a fallopian tube or in the uterus. The dead embryo is shed with the next menses. I don’t think that it’s considered a spontaneous abortion, since implantation never occurs. Not murder in any case, only natural death, most often due to chromosomal abnormalities.

      • Ed Walker says:

        Again, this is discussed in the Gilbert paper you linked above. This paper is required reading for those engaged in fact-based arguments over abortion. It is well=written and mostly accessible. It happens that I know Professor Gilbert. He has read widely beyond his field, and it shows in the range of ideas in this paper, and in his writing. I’ll discuss it briefly in my next post.

        • c-i-v-i-l says:

          I don’t think the paper really discusses issues relevant pre-implantation embryo loss, but I’m glad that you found the paper interesting/useful. I did as well, hence my recommendation. I think I first encountered Prof. Gilbert’s work when I was looking for biological discussions of the common claim that “life begins at conception” — a claim I’d rejected, as the egg and sperm as themselves alive. Gilbert’s Developmental Biology text refers to that as “the metabolic view.” I have to keep in mind, though, that there are a number of words/phrases (e.g., life, human life, a human life, personhood) that are used by many as if they’re interchangeable, whereas I think they have significant differences. For example, I agree with the view that “personhood is not a scientific category,” even though “life” is a scientific category.

          I’m generally interested the biological issues that arise in abortion-related arguments. In the section on the myth of the genomic soul, for example, there are further issues that Gilbert doesn’t really discuss, such as the fact that long before birth, our DNA is not 100% identical (e.g., due to copy errors, microchimerism, and sometimes full-fledged chimerism). For this reason, I’d argue that unique DNA cannot establish personhood.

          I look forward to your next post.

  12. c-i-v-i-l says:

    In a small bit of good news, the Supreme Court has unanimously rejected the challenge to the FDA’s approval of mifepristone, an abortion medication, holding that the plaintiffs lacked standing.

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