ACLU History: The Roe v. Wade Era

September 1, 2010
While many believe that Roe v. Wade (1973) was the first abortion case to reach the Justices, in fact that distinction belongs to an earlier case, United States v. Vuitch. Norman Dorsen, who would become ACLU General Counsel the following year, represented Dr. Milan Vuitch of Washington, D.C., who provided abortions. The Court's ruling on the constitutionality of a law permitting abortion only to preserve a woman's life or health resulted in an expanded understanding that 'health' should include psychological as well as physical well-being. The Court also held that the burden of proof should be on the prosecutor who brought charges, not on the doctor who provided care.

By the time the Vuitch decision came down in 1971, 17 other abortion challenges were headed for the Court, including the landmark Roe v. Wade case. The Roe case challenged a Texas law prohibiting all but lifesaving abortions. The Supreme Court famously invalidated the law in 1973 on the ground that the constitutional right to privacy encompasses a woman's decision whether or not to continue her pregnancy. Characterizing this right as 'fundamental' to a woman's 'life and future,' the Court held that the state could not interfere with the abortion decision unless it had a compelling reason. Moreover, the Court concluded that a state could ban abortion only once the fetus became 'viable' (usually at the beginning of the last trimester of pregnancy), and even then a woman had to have access to an abortion if it were necessary to preserve her life or health.

In a companion case to Roe, Doe v. Bolton, which the ACLU argued before the Justices, the Court overturned a Georgia law prohibiting abortions except when necessary to preserve a woman's life or health or in cases of fetal abnormality or rape. The Court held the Georgia law unconstitutional because it imposed too many restrictions and interfered with a woman's right to decide, in consultation with her physician, to terminate her pregnancy.


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