Beginning in the 1960s and before 1973, the nation was moving toward a state-by-state codification of abortion that demonstrated a political recognition that abortion should not be entirely prohibited but that there comes a point in a pregnancy when it should no longer be permitted. The most liberal law was in New York, which in 1970 permitted abortion through the 24th week of pregnancy.
As the late Justice Ruth Bader Ginsburg noted in a 1992 speech for the Madison Lecture series, this political development was overrun by the decision in Roe vs. Wade. In prior cases where the court sought to invalidate antiquated laws that discriminated based on sex, it "opened a dialogue with the political branches of government," requiring state legislatures to reexamine their positions. But in giving itself the power to decide the moral question of abortion, the court fashioned "a regime blanketing the subject, a set of rules that displaced virtually every state law then in force."
This was a judicial error that deepened a national division that has now affected every part of political life. Roe was, as a majority of the Supreme Court has ruled, wrongly decided. There is no historical basis for the inclusion of abortion as an unenumerated right within the Constitution's named rights.