We are living in perilous times. As we contemplate the prospect of another appointment by Donald Trump to the Supreme Court of the United States, the stakes for our nation are extraordinarily high. Among the many issues at risk, perhaps the most important concerns the right of a woman to decide for herself whether or not to carry a pregnancy to term. Having recently marked the forty-fifth anniversary of the Court’s 1973 decision in Roe v. Wade – an anniversary that means a lot to me personally because I was a law clerk for Justice Brennan that year – we must now face the possibility that Roe might be overruled.
For the past four decades, Roe has been one of the most bitterly divisive issues in American politics. Opponents of Roe maintain that the Court invented a constitutional right out of whole cloth, without any legitimate justification. Supporters of Roe maintain that it was a perfectly sound decision that correctly recognized a fundamental constitutional right.
Whether one agrees or disagrees with Roe, contemporary understandings of the decision and of its historical origins are often confused and incomplete. The story of how we got to Roe, like the story of how we got to Brown v. Board of Education or how we got to Obergefell v. Hodges, is important to remember, for it gives both content and context to the debates of the present.
So, let us begin at the beginning.
Read more at Harvard Law and Policy Review