12. The Woman Who Wouldn’t Be Named

How Jane Roe built a house of privacy that’s been under siege ever since

This is the next chapter in our ongoing rumination on privacy and personhood, a thread we’ve been tracing since Footnote Four and the shaky rise of substantive due process. Today, we meet the woman who gave privacy rights their most contested expression.

Jane Roe didn’t exist.

The woman behind the pseudonym, Norma McCorvey, was a carnival worker from Texas who couldn’t afford to travel to California for an abortion. She never got the abortion she sought. By the time Roe v. Wade was decided in 1973, she had already given birth and placed the child for adoption.

But Jane Roe became immortal.

Her case didn’t just legalize abortion, it transformed the foggy “penumbra” that Justice Douglas sketched in Griswold v. Connecticut into something more expansive, more visible, and far more controversial.

If Estelle Griswold cracked open Pandora’s box with her birth control clinic in Connecticut, Jane Roe blew the lid clean off.

Building on Shaky Ground

By 1973, the Supreme Court had a doctrinal problem. In Griswold, they found a right to privacy in the “emanations” of the Bill of Rights. In Eisenstadt v. Baird, they extended that right from married couples to individuals.

But both cases dealt with contraception, i.e., preventing pregnancy.

Abortion was different. It involved terminating a pregnancy that had already begun. The moral stakes were higher, the science murkier, and the constitutional footing far less stable.

Still, Justice Harry Blackmun, writing for a 7–2 majority, built anyway.

His opinion offered a medicalized compromise known as the trimester framework:

• First trimester: The choice belongs to the woman and her doctor. The state stays out.

• Second trimester: The state can regulate to protect maternal health.

• Third trimester: The state may ban abortion, except to preserve the mother’s life or health.

It was an act of judicial statesmanship that satisfied almost no one, but it gave constitutional protection to a right that had never existed before.

What Kind of Privacy Are We Talking About?

Here’s where Roe gets complicated. It claimed to be about privacy—but not the bedroom kind from Griswold.

This was about bodily autonomy.

The Court was essentially saying: the state cannot force a person to use their body to sustain another life. You can’t be compelled to donate blood. You don’t have to give up a kidney, not even to save your own child. So why should you be forced to carry a pregnancy to term?

It was a radical clarification: privacy isn’t just about place, it’s about personhood.

But there was a catch. Unlike other autonomy cases, pregnancy involved another potential life. That made the constitutional balance far messier. The Court responded by permitting increasing state regulation as the pregnancy progressed—an uneasy compromise that left room for future battles.

The Dissenters Saw It Coming

Justice Byron White called Roe “an exercise of raw judicial power.”

Justice Rehnquist was more technical but equally skeptical. He insisted abortion was not “private” in any meaningful constitutional sense. If anything, he argued, the Court should apply “rational basis” review—the lowest standard, which would’ve let states regulate abortion freely.

Together, the dissents raised a pointed challenge:

If judges could conjure rights out of penumbras and emanations, where would it stop?

Their warning would echo for decades: Roe became the most politically explosive Court decision since Dred Scott, shaping the culture wars, the judiciary, and the makeup of entire presidential administrations.

The Outsiders and the Insiders

Lost in the legal abstractions was a deeper story about who Roe protected.

Just like in Griswold, the sanitized courtroom record masked the raw social realities. Abortion bans didn’t trap wealthy suburbanites. They trapped working-class women, disproportionately women of color—those without the means to travel or the connections to find sympathetic doctors.

Norma McCorvey embodied that world. The Court gave her a pseudonym and a constitutional win, but not the abortion she sought.

Which raises an uncomfortable question, echoing Carolene Products Footnote Four:
Were women affected by abortion bans a “discrete and insular minority”? Not numerically, but structurally?

The Court dodged the equal protection route and instead grounded Roe in privacy, a move that would shape decades of doctrinal instability.

Three Ways to Think About Roe

The reason Roe remains controversial isn’t just politics, it’s theory. Roe sits at the crossroads of three different constitutional ideas:

1. Reproductive Autonomy
   The state cannot force conception, prevent it, or require it to continue. This flows from Griswold and Eisenstadt.

2. Bodily Integrity
   The government cannot commandeer your body—even to save another life. The most compelling rationale, but also the most contested.

3. Gender Equality
   Roe (implicitly) prevents the state from foisting the burdens of reproduction exclusively on women. Motherhood as mandate reinforces gender hierarchies.

Each theory pulls the doctrine in a different direction. The Court never chose clearly. And that ambiguity made Roe vulnerable.

The House That Jane Built

For nearly 50 years, Roe stood as a kind of super-precedent, resilient but controversial.

But the house that Jane Roe built was always fragile.

It rested on implied rights. The trimester framework, once a bold innovation, proved inflexible. In Planned Parenthood v. Casey (1992), the Court abandoned it in favor of the “undue burden” standard—intended to be more practical, but often more confusing.

And unlike other landmark rulings, Roe never earned broad social consensus. Its opponents only grew stronger, more strategic, and more determined.

In 2022, Dobbs v. Jackson Women’s Health Organization did what many once thought unthinkable: It overruled Roe.

The house collapsed. But the questions it raised about privacy, personhood, and power remain.

Doctrinal notes:

Roe = expansion of substantive due process to include reproductive choice.

Framework (trimester → undue burden → no constitutional right) shows doctrinal instability.

Major interpretive debate: Should unenumerated rights be judicially recognized? (echoes Lochner → Griswold → Roe controversy).

Socioeconomic context/equal protection dimension: Abortion bans disproportionately affect low-income women → structural inequality lens.