What is “Roe vs. Wade”, the decision on which the right to abortion in the United States is based?



It is one of the most famous cases in the United States. On January 22, 1973, judges in the nation’s highest court ruled by a vote of seven to two that the right to privacy, protected by the Fourteenth Amendment to the United States Constitution, extends to the decision of a woman to abort.

→ EXPLANATION. Right to abortion in the United States: what you need to know about the Supreme Court project

The affair began in 1970 when Norma McCorvey, a 21-year-old Texan, became pregnant for the third time. The young woman wants to end her pregnancy but the law of her state considers abortion a crime except when the life of the mother is in danger.

Norma McCorvey aka Jane Roe

After trying to falsely claim that she had been raped, then to obtain an illegal abortion, Norma McCorvey, identified under the pseudonym of Jane Roe, seized the Dallas court to challenge the law in force.

At first instance, his lawyer bases his argument on the legal vagueness of the law and on several amendments to the American Constitution, in particular the right to respect for private life. The prosecutor representing the State of Texas, Henry Wade, will finally win the case at first instance but Jane Roe is appealing although she has already given birth to her child.

Abortion allowed “until the fetus becomes viable”

The Supreme Court took up the case and the debates began on December 13, 1971. They lasted more than a year. On January 22, 1973, the nine judges of the Supreme Court ruled in favor of the plaintiff by seven votes to two. According to the Court, the right to privacy protected by the “Due Process Clause” enacted by the Fourteenth Amendment of the Constitution, extends to the decision of a woman who wishes to have an abortion.

The judges specify, however, that this fundamental right must be balanced against the interests of the federated states, namely to protect the health of women and to protect the potential of human life. The right to abortion becomes legal “until the fetus becomes viable”specifies the decision “ which usually occurs between 24 and 28 weeks after conception”.

During the first trimester, the woman has the exclusive right to abort, without the intervention of the State. During the second trimester, the state can only intervene if the mother’s health is in danger. If the fetus becomes viable, the state can restrict the right to abortion, but it must always include an exception to any regulations intended to protect the health of the mother.

Vivid controversies

If this judgment is immediately praised by a part of the population, who sees it as a decision “progressive”it has never ceased to be debated in a country where religion holds an important place in the political sphere.

→ REPORT. Abortion in the United States: “I didn’t think I had to fight for women’s rights in 2022”

In particular, critics argue that the Supreme Court overstepped its responsibility: “ I find nothing in the language or the history of the Constitution to support the judgment of the Court,” wrote in 1973 the judge of the Supreme Court, Byron White, democrat and fiercely opposed to the decision of his colleagues.

→ ANALYSIS. In the United States, a majority of Catholics remain in favor of legalizing abortion

Nearly 50 years later, this case law continues to be debated in the United States opposing the “pro choice” (pro-choice in French, pro-abortion) and the ” pro life (pro life, opposed to abortion). For many years, several states have tried to legislate to restrict the right to abortion. If the Supreme Court reverses the Roe vs. Wade decision, these measures could then come into effect as of right.

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