The Comstock Law had been echoed by a series of anticontraception and antiabortion laws throughout the country. James Mohr observes, "Every state in the Union had [by 1900] an antiabortion law of some kind on its books…except Kentucky, where the state courts outlawed the practice anyway." In 1962 the ethics of abortion became a pressing problem when it was revealed that thalidomide, a drug extensively used in Europe and occasionally in the United States, resulted in the birth of thousands of babies with phocomelia (deformed or missing arms and legs). Sherry Finkbine, an Arizona woman who had taken the drug, demanded a legal abortion. Although her doctors supported her, the county medical society refused to approve the procedure, and, lacking confidence that she and her doctors would be spared immunity from prosecution, she fled to Sweden, where abortion was legal.

Her plight, and her challenge to hospital practice, contributed to a shift in pubic opinion, both within the medical profession, which would subsequently be instrumental in advocating liberalization of abortion legislation, and among women’s groups, who began to articulate dismay that women were generally denied access to safe abortion services. Estimates of the number of illegal abortions performed each year before 1973 range from 200,000 to 1,200,000; it is estimated that 200 women died each year as a result. Abortion was virtually the only medical procedure to which middle-class women did not have access. The issue was less intense for black women’s groups; working-class minority women lacked a wide range of medical services including abortion. Thus at the beginning of the reinvigorated women’s movement of the late 1960s, black and white women were divided about the place that access to legal abortion should hold in their list of priorities for legal change.

In 1970, Alaska, Hawaii, New York, and Washington legalized abortion. Texas law, like the law of most states, continued to prohibit abortion except for the purpose of saving the mother’s life. In 1970, Norma McCorvey, a single pregnant woman, known as Jane Roe to protect her privacy, brought a class action suit challenging the constitutionality of that law as a violation of her right to liberty as guaranteed by the due process clause of the Fourteenth Amendment.

The Supreme Court’s decision in Roe v. Wade marked a sharp change from long-established practice. As the opening lines of the majority decision make clear, the justices were aware they were making a sensitive and important decision.

MR. JUSTICE HARRY A. BLACKMUN DELIVERED THE OPINION OF THE COURT:

We forthwith acknowledge our awareness of 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. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this….

The principal thrust of the appellant’s attack on the Texas statues 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 among those rights reserved to the people by the Ninth Amendment….

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the nineteenth century….At common law, at the time of the adoption of our Constitution, and throughout the major portion of the nineteenth century…a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most states today….

When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis…. Abortion mortality was high…. Modern medical techniques have altered this situation. Appellants…refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure…has largely disappeared….The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient….

The Constitution does not explicitly mention any right of privacy. In a line of decision, however…the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution…. This right…whether it be founded in the Fourteenth Amendment’s concept of personal liberty…or…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…. We…conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation….

…the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman…and…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."

With respect to the State’s important and legitimate interest in the health of the mother, the "compelling" point, is 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…that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that …for the period of pregnancy prior to the "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment, the patient’s pregnancy should be terminated.

…For the state subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

For the state subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

Our conclusion…is… that the Texas abortion statues, as a unit, must fall….

The issues that were raised by Roe v. Wade have not been fully settled and are not likely to be easily resolved, touching as they do on basic religious and ethical beliefs…. In the 1980s, a number of states tested what boundaries would be considered reasonable limits on the abortion rights sustained in Roe. In 1980, the Supreme Court upheld the "Hyde Amendment" by which Congress refused to fund even medically necessary abortions for indigent women (Harris v. McRae). This decision was not the focus of massive pubic protest, and it was replicated in the laws of many states. An effort to defeat the Hyde Amendment failed in Congress in 1993, but some states did revise their practice, covering some abortions for indigent women, usually in the case of rape or incest.

…If states could deny public funds for abortions, what other limitations was it reasonable for the state legislatures to impose? Was it reasonable to require a waiting period? Was it reasonable to require minors to get the consent of one parent? Of both parents? The Court had ruled in 1976 that a state could not require a married woman to get her husband’s consent before having an abortion (Planned Parenthood v. Danforth); could a state require a married woman to notify her husband?