AP Syllabus focus:
‘In Roe v. Wade (1973), the Court applied substantive due process to extend privacy protections to abortion.’
Roe v. Wade is a foundational Supreme Court decision that constitutionalised abortion access nationwide.
It shows how the Court used the Fourteenth Amendment to treat some personal choices as protected liberty against state interference.
Case Context and Core Constitutional Question
Roe arose when a Texas law criminalised most abortions except to save the pregnant person’s life. The plaintiff (“Jane Roe”) challenged the statute as unconstitutional, asking whether the Constitution protects a decision to terminate a pregnancy.
The constitutional hook: Fourteenth Amendment liberty
The Court located abortion within a broader right to privacy and treated that privacy as part of “liberty” protected from state infringement by the Fourteenth Amendment’s due process clause.
Substantive due process: A doctrine holding that the due process clause protects certain fundamental liberties from government interference, so courts may strike down laws that unduly burden those liberties.
The Holding in Roe (1973)
The Supreme Court held that a pregnant person’s decision to have an abortion is a constitutionally protected choice, at least during early pregnancy, and that Texas’s near-total ban violated that protection. In syllabus terms, the Court applied substantive due process to extend privacy protections to abortion.
How Roe Balanced Individual Liberty and State Interests
Roe did not treat abortion as an absolute right. Instead, it framed a balancing test between:
The individual’s liberty/privacy interest in bodily autonomy and medical decision-making
The state’s asserted interests in:
Maternal health (protecting the pregnant person)
Potential life (protecting fetal life as pregnancy progresses)
The trimester framework (Roe’s policy structure)
To operationalise the balance, Roe announced the trimester framework, which limited how states could regulate:
First trimester: Regulation was heavily restricted; the abortion decision was largely left to the individual and physician.
Second trimester: States could regulate abortion procedures in ways reasonably related to maternal health.
Third trimester (post-viability in Roe’s logic): States could prohibit abortions to protect potential life, but had to allow exceptions when necessary for the pregnant person’s life or health.
This structure illustrates a key AP Gov idea: the Court often translates broad constitutional language (like “liberty”) into administrable legal rules that govern state policy choices.
Reasoning Style and Its Importance
Roe is a leading example of the Court using judicial interpretation to identify a protected liberty interest not explicitly enumerated as “abortion” in constitutional text. The opinion relied on:
The concept of privacy in intimate and family decisions
The due process clause as a vehicle for protecting certain fundamental choices from majoritarian state laws
At the same time, Roe acknowledged that states retain police powers over health and safety, and therefore can regulate abortion more as pregnancy progresses.
Federalism and Policy Consequences (Within Roe’s Scope)
By recognising a constitutional protection, Roe effectively:
Line chart showing long-run trends in the annual number of legal abortions in the U.S. from the 1970s through the most recent years plotted, with separate series for CDC-reported and Guttmacher-estimated totals. It helps students distinguish between constitutional change (Roe’s nationwide rule) and subsequent policy/behavioral trends that unfold over time. Source
Invalidated many existing state criminal abortion laws
Restricted states’ ability to ban abortion outright in early pregnancy
Shifted the central battleground to courts over what counts as permissible “regulation” versus an unconstitutional burden on a protected decision
FAQ
Pseudonyms are used to protect privacy in sensitive litigation.
They do not reduce the case’s precedential value; the Court decides the constitutional issue, not the identity of the named plaintiff.
Standing concerns whether the plaintiff has a sufficient personal stake in the dispute.
In abortion litigation, timing and pregnancy duration can complicate whether a live controversy remains, prompting procedural arguments.
Common legal critiques include:
The Constitution does not explicitly mention abortion
The Court created a rule-like framework better suited to legislatures
The balance of state and individual interests was, in their view, insufficiently grounded in text and history
Many state criminal bans became unenforceable to the extent they conflicted with Roe’s constitutional rule.
States often revised statutes to focus on regulation rather than outright prohibition in early pregnancy.
Roe repeatedly referenced the physician’s role, especially early in pregnancy.
That emphasis supported limiting state interference at earlier stages and treating later-stage regulation as more connected to health and medical standards.
Practice Questions
(2 marks) Identify the constitutional doctrine Roe v. Wade (1973) used to protect abortion access, and state what Roe extended that protection to.
1 mark: Identifies substantive due process under the Fourteenth Amendment.
1 mark: States it extended privacy/liberty protections to the decision to have an abortion.
(6 marks) Explain how Roe v. Wade (1973) balanced individual rights and state interests in its approach to abortion regulation.
1 mark: Explains Roe treated abortion as part of a privacy/liberty interest.
1 mark: Links that protection to Fourteenth Amendment substantive due process.
1 mark: Identifies a key state interest (e.g., maternal health).
1 mark: Identifies a key state interest (e.g., potential life).
1 mark: Describes Roe’s trimester framework as the mechanism for balancing.
1 mark: Notes the state’s regulatory power increases later in pregnancy, with an exception for the pregnant person’s life/health.
