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Griswold v. Connecticut paved the way for Roe v. Wade in 1973.⁹⁸ Roe is one of the most famous and one of the most controversial of all Supreme Court decisions. It involved a Texas law that criminalized abortions. Was that law constitutional? By a 7–2 vote, the Supreme Court said no. But in so doing, it tried to balance two competing constitutional rights: the privacy right of a woman to control her own body versus the state’s interest in protecting the life of the fetus.

Justice Harry Blackmun’s majority opinion assumed that the right of privacy is fundamental and that any law interfering with that right triggers strict scrutiny. (For a more complete discussion of the strict scrutiny test, see Chapter 14.) Since the Texas antiabortion law interfered with a woman’s right of privacy, the state of Texas had to demonstrate that it had a compelling reason to restrict that privacy right. The state claimed to have two compelling reasons: (1) protecting the health of the mother and (2) protecting the life of the fetus.

Blackmun assessed these claims in the light of medical technology as it existed in 1973. He relied on statistics showing that the abortion procedure was actually safer than childbirth until the end of the first trimester of pregnancy (each trimester represents three months of a pregnancy). Therefore, he concluded that the state did not have a compelling interest in regulating abortion procedures on safety grounds prior to that first “compelling point”—the end of the first trimester. However, he said that states did have a compelling interest in passing laws that regulated the abortion procedure in order to protect maternal health from that point forward.

Blackmun then asked, When does a state have a compelling interest in protecting the life of the fetus? At one extreme are those who argue that states have a compelling interest in doing so from the point of conception. Those at the other extreme argue that states do not have a compelling interest until childbirth because a fetus is not a person until then. Blackmun sought a compromise. When he was writing in 1973, a fetus could not survive outside of the mother’s womb until the end of the second trimester, known as the point of viability. Using that as his second compelling point, Blackmun concluded that states have a compelling interest to regulate (and to ban completely, if they so choose) abortions in the last trimester.

This so-called trimester framework gave a woman’s privacy right priority in the first three months of pregnancy but gave the state’s interest in protecting life priority in the last three months of pregnancy. In the second trimester, states could regulate abortions in order to protect maternal health but could not ban the procedure altogether. In contrast, the two dissenters argued that laws banning abortions are a reasonable exercise of state police powers.

Like any middle ground position, the trimester framework came under attack from both sides. As time went by, advances in medical technology also eroded it. The first compelling point moved closer toward childbirth, while the second compelling point moved closer to conception. In other words, late-term abortions became safer, and premature babies born at earlier stages in their mothers’ pregnancies began to survive with greater frequency. That change affected the second trimester, in particular. This development led some, such as Justice Sandra Day O’Connor, to suggest that the trimester framework should be abandoned.⁹⁹

By 1992, the composition of the Supreme Court had changed dramatically since the 1973 decision in Roe, and many predicted that a new majority existed that would be willing to overturn it. The opportunity to do so came in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).¹⁰⁰ The resulting 5–4 decision abandoned the trimester framework but reaffirmed the “central tenet” of Roe. It also established a new “undue burden standard” (a middle ground between strict scrutiny and rational basis) that made it easier for some abortion restrictions to stand.

With President Trump’s appointments of Neil Gorsuch and Brett Kavanaugh to the Supreme Court, there may be a new 5–4 majority willing to limit abortion rights further or even overturn Roe v. Wade. Although Chief Justice Roberts sided with the liberal wing of the Court in February 2019 to form a 5–4 majority to temporarily block a highly restrictive Louisiana abortion law from going into effect¹⁰¹—at least a short-term victory for proponents of Roe—it seemed certain that the Court would revisit the abortion issue soon.¹⁰²

The availability of abortion varies across countries (see Figure 4.3). For example, a woman can go to prison for having an abortion in Chile. Abortion is illegal under all circumstances or permitted only to save the life of the mother in much of Africa and South America. On the other hand, since Ireland’s historic 2018 referendum that overturned that country’s long-standing ban on abortions, it is effectively allowed in all European countries, with some restrictions. For example, France requires a woman to undergo counseling before obtaining an abortion. And while Germany technically prohibits abortion, a woman will not be prosecuted for obtaining an abortion during the first trimester as long as she undergoes counseling that seeks to persuade her to carry the pregnancy to term. This compromise was forged after the reunification of East and West Germany in 1989. Abortion was one of the great debates of reunification because the people of East Germany had been accustomed to very liberal abortion laws whereas the people of West Germany had not.

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Figure 4.3 Abortion Laws Around the World, 2019

Source: Center for Reproductive Rights (www.worldabortionlaws.com).

Abortion is a particularly contentious issue in the United States. As the political theorist Ronald Dworkin has noted, the controversy over abortion is in part a result of the explosive mix of religiosity and progressive women’s movements in this country. The United States, he notes, is not only “among the most religious of modern Western countries” (and “by far the most fundamentalist”) but also the home of a women’s movement that has traditionally been more powerful than anywhere else.¹⁰³ Another important factor may be the way national abortion law came about in the United States. Instead of resulting from the normal process of political struggle and compromise worked out by Congress, it was established by the Supreme Court in Roe v. Wade. If Roe is ever overturned, each state legislature will need to decide whether or not to allow abortions, unless Congress chooses to enter the fray and establish a uniform policy for the entire country. Either way, political fights over the issue would be fierce.