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According to the Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage". Providing a historical analysis on abortion, Justice Harry Blackmun noted that abortion was "resorted to without scruple" in Greek and Roman times.[11] Blackmun also addressed the permissive and restrictive abortion attitudes and laws throughout history, noting the disagreements among leaders (of all different professions) in those eras and the formative laws and cases.[12] In the United States, in 1821, Connecticut passed the first state statute criminalizing abortion. Every state had abortion legislation by 1900.[13] In the United States, abortion was sometimes considered a common law crime,[14] though Justice Blackmun would conclude that the criminalization of abortion did not have "roots in the English common-law tradition".[15] Rather than arresting the women having the abortions, legal officials were more likely to interrogate these women to obtain evidence against the abortion provider in order to close down that provider's business.[16][17]
In 1971, Shirley Wheeler was charged with manslaughter after Florida hospital staff reported her illegal abortion to the police. She received a sentence of two years' probation and, under her probation, had to move back into her parents' house in North Carolina.[16] The Boston Women's Abortion Coalition held a rally for Wheeler in Boston to raise money and awareness of her charges as well as had staff members from the Women's National Abortion Action Coalition (WONAAC) speak at the rally.[18] Wheeler was possibly the first woman to be held criminally responsible for submitting to an abortion.[19] Her conviction was overturned by the Florida Supreme Court.[16]
With the passage of the California Therapeutic Abortion Act[20] in 1967, abortion became essentially legal on demand in that state. Pregnant women in other states could travel to California to obtain legal abortions—if they could afford to. A flight from Dallas to Los Angeles was nicknamed "the abortion special" because so many of its passengers were traveling for that reason. There were prepackaged trips known as the "non-family plan".[21]
History of the case
In June 1969, 21-year-old Norma McCorvey discovered she was pregnant with her third child. She returned to Dallas, where friends advised her to falsely claim that she had been raped, incorrectly believing that Texas law allowed abortion in cases of rape and incest when it actually allowed abortion only "for the purpose of saving the life of the mother". She attempted to obtain an illegal abortion, but found that the unauthorized facility had been closed down by the police. Eventually, she was referred to attorneys Linda Coffee and Sarah Weddington.[22][23] McCorvey would end up giving birth before the case was decided, and the child was put up for adoption.[24]
In 1970, Coffee and Weddington filed suit in the U.S. District Court for the Northern District of Texas on behalf of McCorvey (under the alias Jane Roe). The defendant in the case was Dallas County District Attorney Henry Wade, who represented the State of Texas. McCorvey was no longer claiming her pregnancy was a result of rape, and later acknowledged that she had lied about having been raped, in hope to circumvent a Texas law that banned abortions except when the woman's life is in danger.[25][26][27] "Rape" is not mentioned in the judicial opinions in the case.[28]
McCorvey's lawsuit was heard by a three-judge panel consisting of district court judges Sarah T. Hughes and William McLaughlin Taylor Jr. and appellate judge Irving Loeb Goldberg of the U.S. Court of Appeals for the Fifth Circuit. On June 17, 1970, the three judges unanimously[28] ruled in McCorvey's favor and declared the Texas law unconstitutional, finding that it violated the right to privacy found in the Ninth Amendment. In addition, the court relied on Justice Arthur Goldberg's 1965 concurrence in Griswold v. Connecticut. The court, however, declined to grant an injunction against enforcement of the law.[29]
