Geof Stone on Roe at 40
Forty years ago, I had the privilege of serving as a law clerk to Justice William J. Brennan, Jr. during the Supreme Court's 1972-73 Term. It was the year of Roe v. Wade, which was decided forty years ago today. In what has come to be seen as a highly controversial decision, the Supreme Court held that a woman has a constitutional right to decide for herself whether to carry an unwanted pregnancy to term.
Before turning to Roe, some history is in order. At the time the Constitution was adopted, the prevailing view was that human life did not exist until quickening (when the mother first feels movement), which typically occurs at around eighteen weeks, or roughly halfway through a pregnancy. American courts, following the English common law, consistently held that abortion before quickening was not a crime. Let me say that again: At the time the Constitution was adopted, abortion in the first eighteen weekss of a woman's pregancy was lawful.
Abortion rates soared in the mid-nineteenth century, as Americans left the land for industrial jobs. The large families vital to farming became burdens in crowded cities. Abortifacients were widely available from mail-order firms and pharmacists, and newspapers regularly ran ads for products and persons to "cure" pregnancy or "restore menses." Social scientists estimate that twenty percent of all pregnancies in this era were terminated by abortion.