This article was originally published as part of our 2023 project Roe, 50 years latera collection of stories marking what would have been the 50th anniversary of Roe v. Wade. After the Supreme Court struck down the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, these stories sought to highlight the past, present and future of access to abortion in America.
Sarah Weddington was 26 – just a few years out of law school, without a single trial case under her belt – when she stood before the Supreme Court in 1971 and listed some of the consequences of pregnancy.
“It interferes with her body, it interferes with her education, it interferes with her employment and it often interferes with her entire family life,” she said, addressing the all-male justices (one of whom told President Richard Nixon to resign before he. d let him appoint a female judge) in her argument on behalf of Norma McCorvey — or for that matter, Jane Roe.
Weddington did not share that when she became pregnant during her senior year of law school, she drove to Mexico and had an abortion through a door in an unmarked alley rather than risk derailing her life. She experienced no complications, but as she did later writing in Texas Monthlyshe knew that many of her contemporaries had chosen more desperate routes, including throwing themselves down a flight of stairs or drinking cleaning products.
Despite Weddington’s inexperience, the Supreme Court ruled in her favor in 1973and found that the 14th Amendment’s Due Process Clause provided a right to privacy that protected the right to abortion until a fetus is viable outside the womb.
“The roe that they invented was much better than the roe that actually existed.”
When Roe was overturned Dobbs v. Jackson Women’s Health Organization 2022 – just six months after Weddington died at age 76 — it was a gut-wrenching decision for abortion rights advocates. But many activists and legal scholars say it was also a chance to reassess an imperfect legal case with even less perfect real-world consequences.
“Roe became a symbol on which many people projected things that the Supreme Court never said,” says Mary Zieglera legal scholar and author of “Roe: The Story of a National Obsession“, pointing out that popular phrases like “a woman’s right to choose” were never what the Supreme Court delivered. “The roe that they invented was far better than the roe that actually existed.”
For abortion rights advocates, considering the future of the procedure does not mean trying to bring Roe back; it means rethinking what stronger legal protections could look like – and perhaps more importantly, remembering that courts are only one way to get rights.
“Now is a good time for the reproductive rights movement to take stock of what went wrong the first time and how to change it,” said the Boston University law professor Aziza Ahmed.
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Mary Ziegler is a professor of law at the University of California, Davis, and the author of several books on the American abortion debate.
Aziza Ahmed is a professor of law at Boston University.
The problem with roe
Even among abortion access advocates, the majority opinion on Roe, authored by Attorney General Harry Andrew Blackmun, was controversial. Once it became the law of the land, lawyers, including Justice Ruth Bader Ginsburgargued that Roe should have granted rights to people to obtain an abortion, rather than just to doctors to provide them. Another common criticism of Roe was that the 14th Amendment was shaky ground because the Constitution only implied privacy and never says so explicitly. The equal protection clause, many have arguedwould have provided a stronger foundation given that lack of access to abortion disproportionately affects women.
With conservatives poised for a decades-long attack on the case, it didn’t take long for Roe to leak. 1976, the Hyde Amendment banned the use of federal funds for most abortions, which meant that Medicaid users could no longer have an abortion covered. In 1980, the Supreme Court established the law in Harris v. McRaecreate what some feminist legal researchers has called a two-tier system for abortions: access for those with money and denial for those without.
The rules only became more restrictive over time. In 1982, Pennsylvania instituted a lot of barriers to an abortion — including a waiting period, as well as stipulating that minors must obtain parental consent and that married women notify their spouses of their plans to have an abortion.
When challenges to these provisions came to the Supreme Court in Planned Parenthood v. Casey In 1992, many thought it would be Roe’s death knell. Instead, it was another chink in Roe’s armor, overturning its “strict scrutiny” standard (the Court’s highest level) in favor of a more legally vulnerable “undue burden” standard—allowing most of Pennsylvania’s restrictions to stand.
“Roe was critical in that it legalized abortion, but it always created this pathway where you have to follow certain rules in order to get an abortion,” says the abortion rights activist Renee Bracey Sherman says. Crucially, these rules fell disproportionately on low-income women, women of color, and rural women.
Bracey Sherman adds that while Roe may have legalized abortion in some cases, it did not decriminalize it. Research by the reproductive rights legal organization If/When/How found that between 2000 and 2020 there were 61 cases of people being criminally investigated or arrested on suspicion of trying to terminate their own pregnancy or helping someone else to do so.
How the political context shaped roe
Weddington’s case may have been the one that got abortion on the books, but it came amid a slew of similar legal challenges. This included the 1971 case known as Women v. Connecticutwhere law student Ann Hill organized more than 2,000 women through her women’s liberation group to sue the state over its laws restricting abortion in a class action lawsuit following her own illegal abortion. Another was the 1973s Doe v Boltona case challenging Georgia’s abortion law that was before the court at the same time as Roe.
“When Roe happened, it didn’t happen in a vacuum.”
The preceding decades also saw the liberal Supreme Court desegregate schools, forbid prayer in schools, and outline the right to contraceptive and interracial marriage. And these legal challenges did not happen in isolation. The civil rights, antiwar, and feminist movements built a culture of grassroots organizing, lobbying, protests, state legislative efforts, and civil disobedience—all of which laid the groundwork for Roe’s passage.
“When Roe happened, it didn’t happen in a vacuum. Courts are in dialogue with movements and politicians and other actors who have thoughts about the Constitution,” Ziegler says, underscoring the falsity of some judges’ claims of immunity from political pressure or cultural change. “We talk about it like the Supreme Court gave us abortion rights and took abortion rights away, when if you dig into history, it’s a lot more complicated than that.”
Ahmed says students in her reproductive rights course often don’t connect protests or direct action with legal decisions on abortion, which points to a flaw in the contemporary reproductive rights movement.
“Some of the most powerful moments in the history of the feminist women’s health movement (are) when women really took matters into their own hands and forced the world to really acknowledge them,” adds Ahmed.
What is the future of abortion and the Supreme Court?
While the current conservative makeup of the Supreme Court means the cards are stacked against constitutional protections, Ahmed says it’s important to try anyway — even failed court cases can set precedents for future successes, a strategy anti-abortion activists used to overturn Roe.
“To ensure that people get the abortions they need, some people will just have to ignore the line between legality and illegality.”
Legal battles can look like failed attempts by Democratic members of Congress to pass Women’s Health Protection Actwhich would federally protect a person’s right to terminate a pregnancy. And many legal researchers point to the 14th Amendment’s Congressional Enforcement Clause — which can be used to stop states from depriving people of “life, liberty, or property” — as a possible avenue for legal protection for abortion.
Ahmed and Ziegler both say the law must continue to be seen as an important tool to ensure abortion rights, but it cannot be the only one.
“It feels like the court is everything, but the longer course of history suggests otherwise — and it suggests that when people believe it, it actually hurts their organization,” Ziegler said of the Supreme Court’s decision on Roe. She adds that an overemphasis on the courts as the avenue for reproductive justice is part of a “professionalization” of some parts of the movement, which has sometimes focused more on things like court cases, opinion polls, and focus groups than on mobilizing, organizing, and providing services , often to the detriment of access to abortion.
“The way people relied on litigation, it was like people forgot what they could do,” she says.
Bracey Sherman agrees that the law should be a tool in the movement’s toolbox — but also that when laws are developed around things like the distribution of abortion pills and self-directed abortions, they may need to be ignored.
As she puts it: “To make sure people get the abortions they need, some people just have to ignore the line between legality and illegality — because my belief is that it’s an unfair line.”
Abigail Higgins is a journalist in Washington, DC, with a decade of experience reporting across Africa and the United States. Her work appears in PS, The Washington Post, Time Magazine, The Guardian, The Nation, NPR, The New Republic, The Christian Science Monitor, Al Jazeera, and The Seattle Times, among others.
