By a 7-2 vote, the Supreme Court in Roe v. Wade in 1973 established a constitutional right to abortion, striking down laws in many states that had banned the procedure. The court said states could not ban abortions before fetal viability, the point at which the fetus can survive outside the womb. That was around 28 weeks at the time; because of improvements in medical technology, it is around 23 weeks now.
The decision was widely criticized, including by people who supported access to abortion as a policy matter.
Justice Ruth Bader Ginsburg, a strong supporter of abortion rights who died in 2020, expressed qualms about Roe over the years.
“The court bit off more than it could chew,” she said in 2009, for instance, in remarks after a speech at Princeton University. It would have been enough, she said, to strike down the extremely restrictive Texas law at issue in Roe and leave further questions for later cases.
“The legislatures all over the United States were moving on this question,” she added. “The law was in a state of flux.”
Roe shut those developments down, she said, creating a backlash.
“The Supreme Court’s decision was a perfect rallying point for people who disagreed with the notion that it should be a woman’s choice,” Ginsburg said. “They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges.”
The decision also came under withering criticism from some liberal law professors.
“What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure,” John Hart Ely, a prominent constitutional scholar, wrote in 1973 in The Yale Law Journal.
Ely, who died in 2003, wrote that the Roe decision was untenable as a matter of intellectually honest jurisprudence.
“It is not constitutional law,” he said of the decision, “and gives almost no sense of an obligation to try to be.”
Roe established a framework for governing abortion regulation based on the trimesters of pregnancy. In the first trimester, it allowed almost no regulations. In the second, it allowed regulations to protect women’s health. In the third, it allowed states to ban abortions so long as exceptions were made to protect the life and health of the mother.
The court discarded the trimester framework in 1992 in Planned Parenthood v. Casey. But Casey retained what it called Roe’s “essential holding” — that women have a constitutional right to terminate their pregnancies until fetal viability.