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Roe v Wade: What you need to know about the 1973 case that enshrined US abortion rights

Jane Roe – a pseudonym for Norma McCorvey – sued the Dallas Attorney General, Henry Wade.

Around half a million people attended the March For Women's Rights in Washington DC on 9 April 1989.
Around half a million people attended the March For Women's Rights in Washington DC on 9 April 1989.
Image: Shutterstock/Mark Reinstein

A US SUPREME Court draft opinion leaked to the press last night suggests a majority of justices are ready to overturn the landmark Roe v Wade ruling, shredding nearly 50 years of constitutional protections on abortion rights.

A document labelled “Opinion of the Court” shows a majority of the court’s justices earlier this year threw support behind overturning the 1973 case that legalised abortion across the country.

According to the political news organisation Politico – who published the “leaked document” – the draft opinion shows the court voted to strike down the landmark case.

Here is how the original 1973 court case played out.

On 22 January 1973, the court decided that the constitutional right to privacy applied to abortion.

Roe was ‘Jane Roe’, a pseudonym for Norma McCorvey, a single mother pregnant for the third time, who wanted an abortion.

She sued the Dallas Attorney General, Henry Wade, over a Texas law that made it a crime to terminate a pregnancy except in cases of rape or incest, or when the mother’s life was in danger.

Filing a complaint alongside her was Texas doctor James Hallford, who argued the law’s medical provision was vague, and that he was unable to reliably determine which of his patients fell into the allowed category.

The ‘Does’, another couple, childless, also filed a companion complaint, saying that medical risks made it unsafe but not life-threatening for the wife to carry a pregnancy to term, and arguing they should be able to obtain a safe, legal abortion should she become pregnant.

The trifecta of complaints — from a woman who wanted an abortion, a doctor who wanted to perform them and a non-pregnant woman who wanted the right if the need arose — ultimately reached the nation’s top court.

The court heard arguments twice, and then waited until after Republican president Richard Nixon’s re-election, in November 1972.

‘Sensitive and emotional’ controversy

Only the following January did it offer its historic seven-to-two decision — overturning the Texas laws and setting a legal precedent that has had ramifications in all 50 states.

Justice Harry Blackmun, writing for the majority, said the court recognised the “sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires”.

But he argued that the “right of privacy… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”.

“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,” the ruling read.

But the top court agreed with lower court rulings that the right to privacy with regard to pregnancy “is not absolute, and is subject to some limitations”.

“At some point, the state interests as to protection of health, medical standards and prenatal life become dominant,” Blackmun wrote.

The top court thus ruled partially against the doctor and the Does, but in favor of Jane Roe, who has since become a pro-life activist.

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On the same day, the justices ruled in the separate Doe v Bolton case, which authorised each state to add restrictions to abortion rights for later-term pregnancies.

The constitutional right to abortion was later confirmed in a number of decisions, including Webster v Reproductive Health Services in 1989, Planned Parenthood v Casey in 1992 and Stenberg v Carhart in 2000.

© AFP 2022 

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