This sheet is designed as a guide for students in high school and above to learn the basics about the recurring legal battle around abortion in the United States. It includes primary textual sources, like constitutional amendments, Supreme Court rulings, and case law, as well as discussion questions, historical photos, and video clips.
A number of these texts are from the Sefaria for Democracy library. To further explore these sources in context, you can click on the respective titles (e.g. "The Bill of Rights, Amendment IX 1") and you will see a sidebar appear with the full text.
If you'd like to dive in a bit deeper and see a sample of documents that reference or are associated with that specific text (e.g., where is the Ninth Amendment addressed in presidential speeches? How can it been used in Case Law?), click on the section of text, and another sidebar will appear with works connected to it.
The Primary Texts
Before reading excerpts from Roe v. Wade, it's important to read the primary documents on which it is based and precede it by 150-200 years.
- What does this text reveal about the nature of the constitutional and of rights more broadly?
- What rights do you think might be discussed in the conversation about abortion?
- Does it matter what the original authors' intentions were at the time (i.e. what they assumed were rights, but did not explicitly include in the constitution)?
- Click here for more commentary on the 9th Amendment
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.
- What rights does this text protect?
- What do you think the text means when it says that a state cannot "abridge the privileges and immunities" and that state cannot "deprive any person of life, liberty, or property without due process of law?"
- In the 14th Amendment, what is required to restrict or take away a person's right?
- Do you think this text has anything to say about a woman's right to have an abortion? Do you think it supports or rejects such a claim, or do you think it does not take a strong position one way or another?
- What information or definitions do you think are missing here? How might a lack of clarity affect one's argument for or against abortion?
The Laws and Cases That Lead to Roe v Wade
Roe v. Wade (1973) emerged as a result of a set of Texas laws (below), which made abortion illegal and criminalized those who either performed or facilitated an abortion. Norma McCorvey (knowns as "Jane Roe" in the lawsuit) lived in Texas and sought to have an abortion, which had been illegal except when necessary to save the mother's life. Her case was eventually taken to the Supreme Court in the landmark Roe v. Wade case.
Texas State's Penal Code, Articles. 1191, 1192, 1195, 1196 of the State's Penal Code (first adopted in 1857)
Article 1191. Abortion
If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By 'abortion' is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.
Article 1192. Furnishing the means
Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.
Article 1195. Destroying unborn child
Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.
Article 1196. By medical advice
Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.
- What are the assumptions about the personhood of a fetus?
- Do you think these laws contradict either of the above amendments? Why or why not?
As we will see in Roe v. Wade, much of the case relates to the right to privacy, whose existence itself is a subject of debate. The Supreme Court in Griswold v. Connecticut, which affirmed the right of married couples to use contraception, ruled that the right to privacy is, in fact, rooted in the Constitution.
Majority Opinion in Griswold v. Connecticut - U.S. Supreme Court - 381 U.S. 479 (1965) - Decided June 7, 1965.
Various guarantees create zones of privacy. The right of association contained in the penumbra [arc] of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Fourth and Fifth Amendments were described ... as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.”
- What is this opinion's central argument, and what does the Ninth Amendment add to it?
- What do you think of the argument that there is a right to privacy that is not exclusively mentioned? Based on the amendments brought, would removing someone's ability to have an abortion be a violation of the right to privacy? (see the First Amendment, Third Amendment, Fourth Amendment, and Fifth Amendments for their full texts and how they have been interpreted)
- What other sorts of conduct do you think the right to privacy might include? What might it exclude?
Shortly after Griswold v. Connecticut, and before Roe v. Wade, the Supreme Court decided in Eisenstadt v. Baird (1972) that unmarried people could also possess contraception, just as married couples could. This deemed a Massachusetts law that prohibited the distribution of contraceptives to unmarried people unconstitutional. In the Majority Opinion, William J. Brennan, Jr wrote the following:
Eisenstadt v. Baird, Opinion of the Court, 1972
If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to whether to bear or beget a child.
- Eisenstadt v Baird assumes that the right to privacy permits a woman to have an abortion. In what ways is abortion a private matter? Are there times when it is a public matter?
The Famous Supreme Court Case: Roe v. Wade
As you read through the majority opinion, ask yourself:
- What are the main points/arguments made by the supreme court justices in the majority opinion?
- What limitations do the justices set in this permissive ruling?
- Do you agree with their reasoning? Why or why not?
- Why do you think Roe v. Wade is still controversial today?
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras...
...In this country, the law in effect in all but a few States until mid-19th century was the preexisting English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that related to a woman "quick with child." The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860...It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening, but were lenient with it before quickening...Gradually, in the middle and late 19th century, the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.[...It is thus apparent that, at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.
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...All these are factors the woman and her responsible physician necessarily will consider in consultation.
- Where, if anywhere, does the "right of privacy" appear explicitly in the Constitution? The majority opinion explains how they derive it here.
- How far does the right of personal privacy go? According to the justices, it "must be considered against important state interests in regulation." What state interests would these be?
- Justice Rehnquist disagrees that the "right of privacy" was intended to apply in this type of case. Read his dissenting opinion to understand why he does not believe it applies here.
The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution...But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.
- See then-President Ronald Reagen's 1988 State of the Union Address then-President George W. Bush's 2003 State of the Union Address for a contrast to this position.
- How much attention must be paid to the embryo, fetus, and/or its development? The majority opinion asserts that "a woman cannot be isolated in her privacy."
- Justice White, in his dissenting opinion, places a high value on potential human life and is not ready to unconditionally position the mother over the fetus.
With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health...
- The reasoning here for the first trimester is based on the woman's health, but what about the fetus' development? The justices consider the implications of when "the fetus then presumably has the capability of meaningful life outside the mother's womb."
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.
- Justice Rehnquist issued a dissenting opinion that the "sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify" under the Due Process Clause. Click here to read his reasoning.
June Medical Services v. Russo: What is the future of Roe v. Wade?
What John Roberts’s Surprise Abortion-Rights Ruling Means for the Future of Roe v. Wade", The New Yorker, June 2020
In an unexpected 5–4 decision today, the Supreme Court struck down a 2014 Louisiana law that severely restricted access to abortions by mandating that doctors who perform the procedure have admitting privileges at nearby hospitals. If the law had gone into effect, it would have likely left the state with a single abortion clinic. The ruling was the third major case in a week in which Chief Justice John Roberts voted with the Court’s four liberal Justices and rejected a legal argument backed by President Trump and conservative Republicans. The majority’s decision in the case, June Medical Services v. Russo, was written by Justice Stephen Breyer and joined by his three liberal colleagues. Roberts wrote a concurring, “controlling” opinion, which agreed with the majority despite his dissent in a similar case, in 2016, involving a nearly identical law in Texas.
I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case...
Today’s case is a challenge from several abortion clinics and providers to a Louisiana law nearly identical to the Texas law struck down four years ago in Whole Woman’s Health. Just like the Texas law, the Louisiana law requires physicians performing abortions to have “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed...Following a six-day bench trial, the District Court found that Louisiana’s law would “result in a drastic reduction in the number and geographic distribution of abortion providers.” June Medical Services LLC v. Kliebert...and “therefore cripple women’s ability to have an abortion in Louisiana.”...The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.
- What is "stare decisis and how does it help the Supreme Court function? Justice Roberts explains that "Stare decisis (“to stand by things decided”) is the legal term for fidelity to precedent...It has long been “an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.”...This principle is grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them...It is the “means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.”...Stare decisis is pragmatic and contextual, not “a mechanical formula of adherence to the latest decision.”