Title

Self-Conscious Dicta: The Origins of Roe v. Wade’s Trimester Framework

This Faculty Working Paper has been published and posted within the Faculty Scholarly Works Series. It is currently available here.

Abstract

One of the controversies arising from Roe v. Wade has concerned whether the opinion's trimester framework should be considered part of the holding of the case, or can instead be classified as dicta. Three different Supreme Court opinions have spoken to this question in different ways.

This article reviews materials from the files of Justices who participated in the Roe decision. It concludes that Justices in the majority understood the opinion's trimester framework to consist largely of dicta, unnecessary to a ruling on the constitutionality of the Texas abortion statute. The extensive use of dicta in Roe can be attributed to a desire to provide guidance to state legislators and perhaps also to a hope of reducing the number of abortion cases the Court might need to address in the future.