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The Life and Death of Roe v Wade

By Amanda Peterson

Texas Senate Bill 8 went into effect on the 1st of last month, officially restricting a person’s access to abortion. The new law, also known as the “heartbeat bill,” bans abortions after just 6 weeks of pregnancy, making no exception for cases of rape or incest. Notably, the six-week mark exists in the first trimester, during which abortion is federally protected by the Supreme Court ruling in the Roe v Wade case. In fact, Roe v. Wade, a case that started in Dallas, was a direct response to similar repressive abortion restrictions in Texas at the time.

Prior to 1973, a person could only receive an abortion in Texas if a doctor found it medically necessary to save their life; in other words, abortion upon request was illegal. Additionally, according to a 1986 Skiff interview with Sarah Weddington, the defense attorney in the Roe v Wade case, many doctors refused to perform the procedure even in medical emergencies for fear of legal consequences.

Sarah Weddington at a gathering of the Abortion Education Committee of Dallas, 1971. Photo from UTA Libraries Digital Gallery.

Weddington first focused on the problems surrounding Texas abortion restrictions in 1967, when she learned that many people traveled to Mexico for abortions and returned with severe medical issues. In reaction, the young lawyer sought out a lawsuit.

She found her representee in Norma McCorvey, a woman who would come to be known by the pseudonym Jane Roe to protect her identity. A single woman working as a waitress in Dallas, McCorvey was pregnant for the third time. An AP News article on McCorvey reports that her mother had taken custody of her first child after deeming McCorvey an unfit parent, and she gave up her second child for adoption immediately after birth. With no desire to carry another pregnancy, McCorvey decided that she wanted an abortion.

McCorvey agreed to work with Weddington to make her desired abortion legal in Texas, and the two filed a petition in Dallas. The court record shows that theirs was not the only abortion-related case argued at the time. McCorvey was joined by James Hubert Hallford, a physician who felt a medical and constitutional duty to provide abortion access. Additionally, a married couple going by the names of John and Mary Doe filed a petition, as they too sought access to legal abortion. Dallas County District Attorney Henry Wade acted as the defendant in each case.

A three-judge federal court agreed with the plaintiffs’ positions that the Texas abortion laws were unconstitutional because they denied persons the choice of whether to have children, a right secured by the 9th Amendment, through the 14th Amendment. The court, therefore, concluded that Texas abortion laws were “void on their face.”

Despite this decision, Henry Wade said he would continue to prosecute such offenses.

In response, Weddington and McCorvey filed a lawsuit with the Supreme Court in 1971. In an interview with Sarah Mirk, Weddington looks back on the decision to file, saying “I thought I was trying to build this mountain. You keep throwing cases on the pile and the more that get up to the Supreme Court, the more likely they are to take a case. I was just trying to get a case up to the Supreme Court.”

Weddington received notice of the case’s acceptance later that year while working as an assistant district attorney in Fort Worth.

Weddington and her opponent first presented their arguments to the Supreme Court on December 13th. Recognizing the importance of the case, however, the court postponed their decision because recent deaths had left them with only 7 justices instead of the usual 9. On October 11, 1972, the court reconvened with 9 justices, and Weddington re-presented her winning argument at the young age of 26.

The Supreme Court delivered its decision on January 22, 1973. The 7-2 vote favored Jane Roe and abortion rights.

Citing Griswold v Connecticut as precedent in his majority opinion, Justice Harry Blackmun expressed the court’s view that the right to abortion is protected by a person’s right to privacy, guaranteed by the 14th Amendment. The court divided pregnancy into three trimesters, completely legalizing abortion in the first, allowing states to place some regulations in the second, and encouraging states to severely limit abortions in the third.

TCU students join the crowd gathered on the steps of the Tarrant County Courthouse during the Fort Worth “March for Reproductive Rights.” The Fort Worth protest was one of over 600 marches that took place across the United States on October 2, 2021.  Photo courtesy of Amanda Peterson.

With such a clear ruling, how has Texas managed to enact a bill as restrictive as SB 8?

The trick is that, in accordance with the Roe v Wade decision, the state takes no action against abortion. Instead, SB 8 allows for civil lawsuits and uses financial incentives, with successful lawsuits reaping a minimum of $10,000. This law gives private citizens the power to punish others, essentially having them do the dirty work so the Texas Legislature can keep their hands clean.

Whether enforced by the state or by citizens, the new law looks all too similar to those deemed unconstitutional in 1973. This is because SB 8 is the exact same law in disguise.

The lawmakers support the recent bill by stating, “The legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v Wade… that prohibit and criminalize abortion unless the mother’s life is in danger.”

Simply, a new loophole was added to old, unconstitutional laws to circumvent the protections guaranteed by the constitution, as decreed by the Supreme Court.

Texas Senate Bill 8 and similar laws in other states pose a threat to Roe v Wade and the protections it has provided for nearly four decades. It is already clear that the current Supreme Court favors harsh abortion restrictions, as demonstrated by their 5-4 decision not to block the Texas “heartbeat bill.” Additionally, an ABC news article reports that the Court has agreed to hear a Mississippi case aiming to overturn the landmark Supreme Court decision. Going up against the Jackson Women’s Health Clinic, the State, which has already banned abortions after 15 weeks, hopes a different court decision will support these restrictions. With this case’s Supreme Court hearing slated for December 1st, and an already known majority in favor of similar bans, abortion access could be severely limited across the nation in the coming year.

Laws such as SB 8 and the potential overturn of Roe v Wade evidence the growth of systems that serve to limit women and minority groups. We are seeing a rapid reversion to more oppressive political structures and laws that dictate the actions of those who may become pregnant, restricting their bodily autonomy. These issues of autonomy, abortion access, and other reproductive and sexual health topics may seem like problems of the past, but they are contemporary and pressing once again.