Beyond Roe v. Wade: Five Other Standout Cases that Defined Abortion Rights

It's important to note that reduction of choice isn't an equal loss for all women. Since the majority of those seeking abortions are mothers already—and 40 percent live below the poverty line—abortion restrictions punish an already struggling group: poor moms. But if you look into the past rules about both contraception and abortion, that's been true for as long as laws have been made about a woman's right to choose.

As Melissa Murray, coauthor of the very first reproductive rights and justice law casebook and professor at UC Berkeley School of Law, points out, it's not even necessary to criminalize abortion to stop it: "When you think about all these laws restricting abortion, they are civil, not criminal—but they have the effect of a criminal prohibition. And that's their intention."

These new restrictions haven't appeared out of thin air—below are the historical precedents that show how we got to where we are now.

In 1965's Griswold v. Connecticut decision, the Supreme Court found that Connecticut's Comstock law, which prohibited anybody from selling or distributing "any drug or medicine… for the prevention of conception," violated marital privacy. The Court's opinion stated that Americans have a right to "protection from governmental intrusion" into their private lives.

"It's the case that's the base for all reproductive rights going forward," Murray says, noting that privacy is fundamental to laws about contraception and to the arguments made in Roe v. Wade. But Griswold was also, importantly, rooted in the question of access—because, while contraception had been illegal in Connecticut since 1879, it was available to those with the funds for private doctors who could provide the devices (usually diaphragms) directly. In addition to recognizing privacy, this case brought access to contraception to thousands of those who needed it.

Even when anti-abortion laws were passed in most states by the end of the 1880s—generally banning abortion except to save the life of the mother—it remained a common practice. One contemporaneous estimate by doctors puts the yearly rate at about 2 million abortions a year (compared to today's 1.5 million or less). As more specific and restrictive abortion laws became the norm in the early and mid 20th century, doctors, who were the ones to provide abortions, were getting in trouble for what many saw as a basic medical procedure that sometimes saved lives.

1969's People v. Belous was a California case which struck down California's 100-year-old abortion law and whose verdict put doctors at the center of abortion decisions—not lawmakers. "It's a remarkable case because it gives such a searing picture of what abortion was like before it was legalized," says Murray. It brought the discussion about who makes decisions about women's bodies to the public and the legal spheres, inspiring feminists and the pro-choice movement, and shortly thereafter, Roe v. Wade.

Harris v. McRae addressed the important question: Is the right to choose an abortion available only to those who can afford it? It was a challenge to the Hyde Amendment, which has, for 40 years, kept anyone on Medicaid from accessing abortion via that system; in their decision, the Court ruled that the restrictions established by the Hyde Amendment are not unconstitutional. "This decision matters because it basically eliminated public funding for abortion," says Murray. That has ramifications for all the people who are public employees and rely on government proffered healthcare—from Peace Corps volunteers to prisoners, from military families to postal workers.

It has also impacted healthcare availability moving forward. Obamacare today doesn't include abortion coverage because of this precedent, which was set in 1980. "You saw some of the same discussions in the [recent] Hobby Lobby case here. The roots of the idea that 'If you want to have sex and contraception, you should pay for that yourself,' are in Harris," says Murray.

Thornburgh v. American College of Obstetricians & Gynecologists was a bald challenge to Roe v. Wade's legality in 1986. While it didn't succeed, quite a bit of the legal reasoning that came out of it had significant impact. First, Justice Blackmun, who had written the majority opinion upholding Roe, found that abortion should be about women's rights, not the rights of physicians (challenging the Belous verdict of 17 years earlier).

This is also the abortion case where the first woman on the Supreme Court, Sandra Day O'Connor, distanced herself from abortion rights. "In her dissent, O'Connor calls into question whether state level laws really do place an undue burden" on a woman's ability to choose an abortion, says Murray. "This same language carries the day six years later—it's the roots of [Planned Parenthood v.] Casey." In his opinion, Blackmun writes supportively, calling a woman's right to choose to end a pregnancy "fundamental." But he's concerned that Roe's days are numbered—support for abortion from the other justices has shrunk to a bare majority. As Blackmun predicted, the fundamental right to an abortion is now under serious question.

In 1992, Planned Parenthood v. Casey made a bevy of abortion restrictions legal, including "informed consent" laws, 24-hour waiting periods, and laws requiring minors to obtain parental consent before terminating a pregnancy. It paved the way for many of the rules that have so severely limited abortion since.

"Casey guts Roe," says Murray. Whether forcing women to jump through certain hoops to get an abortion is considered an "undue burden" is the crux of the argument. Of course, that's a phrase that's hard to define: "What burden is undue?" asks Murray. Here, O'Connor's words have come back to roost. What is a burden to one woman is no big deal to another: In upholding Texas' draconian abortion restrictions, a judge on the Fifth Circuit notoriously said that forcing a woman to make a 300-mile round trip in order to access abortion care does not constitute an undue burden because the speed limit in Texas is 75 miles per hour.

The important question to ask is: Who's deciding what constitutes an undue burden? Right now it's up to state legislators, whose restrictions, we know from data, keep women—especially poor and working women—from accessing their choices.