What is Roe?

Get in the Repro Know: What is Roe?

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This blog series offers accessible explainers on reproductive health, policy, politics, and social movements. Each post focuses on one aspect of reproductive health and provides an overview of the history, current conversations, and research on the topic. 

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What is Roe?

In the U.S. abortion is a politically charged medical procedure. For the majority of our lives, most Americans saw abortion as a contested but settled political debate. Abortion was legal and particular restrictions were debated. In 2022, Americans were confronted with the possibility of total abortion bans nationwide. This post explores what Roe was and importantly, what it was not.

Roe v Wade (often referred to as “Roe”) is a U.S. Supreme court case that established a constitutional right to abortion access. The case determined that abortion is allowed based on the 14th Amendement right to privacy. The Roe v. Wade decision established that the Constitution supported the right to an abortion. This decision struck down state bans and restrictions on the procedure. The court determined that a pregnant person had a right to privacy with their doctors. State surveillance and interference between a patient and doctor was considered a violation of the 14th amendment.

Norma McCorvey, dubbed “Jane Roe,” sought an abortion in 1969 Texas after discovering she was pregnant with what would be her third child. At the time Texas only permitted abortions when the life of the pregnant person is at risk. Attorneys Linda Coffee and Sarah Weddington brought her lawsuit to the Supreme Court in part thanks to pro-abortion advocacy groups (Staggenborg 1991). The decision was announced in 1973 with a 7-2 majority. Roe determined that abortion fell under the Due Process Clause of the Fourteenth Amendment, the right to privacy. Roe would be partially upheld by the decision in Planned Parenthood v. Casey (1992) and eventually overturned by the decision in Dobbs v. Jackson Women’s Health Organization (2022).

Roe was what legal scholars refer to as a negative liberty. It is legal to obtain an abortion, but you are not entitled to access. This meant that post-Roe, anti-abortion politicians could restrict access in a number of ways including: excluding abortion from medicare and medicaid, introducing time limits and restrictions, and requiring abortion providers to meet arbitrary standards set by legislatures rather than medical boards. 

In the days following Dobbs you may have heard the phrase “codify Roe.” Abortion access remained vulnerable because Congress failed to codify (or put into law) legal abortion nationwide. While democrats and progressives ran on “pro-choice” platforms, they failed to write and pass legislation that would secure abortion access. Failing to codify Roe immediately after the ruling allowed for the partial undoing of Roe in Casey (1992). While Casey upheld some aspects of Roe, it allowed for more State surveillance and oversight by allowing restrictions pre-viability. Under Roe, pregnant people and their doctors could make decisions unobstructed in the first trimester and the state could regulate within certain parameters to protect the life of the person or fetus in the second and third trimesters. Casey (1992) did not uphold the trimester model, instead allowing the state the ability to restrict abortion earlier and introduce restrictions unrelated to preserving the health of the person or fetus.

Roe was a Supreme Court decision, not a law, and was partially overruled by Casey. Dobbs does not make abortion illegal, but does allow states to enact total bans which were previously prevented. Some states had trigger laws which were activated by the overturning of Roe. Other states moved to protect abortion access at the state level. Congress still has the legal ability to codify abortion access but the overruling of Roe may complicate this. As states move to secure abortion access or ban traveling outside the state for abortions, we are likely to see many more court cases and proposed legislation around abortion in the coming years.

So, what does it mean that Roe is overturned and what are the implications of Dobbs? Roe was severely limited by Casey and the Hyde amendment (which will be a stand alone topic in a future post). The Dobbs decision complicates the future of legal abortion access in the U.S. We are likely to see individual states codifying Roe while others criminalize abortion and miscarriage. In this blog series I will do my best to summarize the history, current state, and future of abortion access in the United States. I will also be doing deep dives into the Reproductive Justice Movement, reproductive health issues globally, and how reproductive health is an intersectional issue that touches on broader structures and systems.

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Elle Rochford

Dr. Elle Rochford is a Researcher at the Center for the Study and Prevention of Gender-Based Violence at the University of Delaware. She also hosts Proofing and Lies, a social science podcast covering a new topic and new baking project every other week!