| Roe v. Wade |
| 410 US 113 (1973) |
| Facts I |
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, “These make it a crime to “procure an abortion,” as therein [410 U.S. 113, 118] defined, or to attempt one, except with respect to “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” Roe sought to stop the DA, Wade, from enforcing the statute and for the Supreme Court to declare the Texas law unconstitutonal. 7. Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions”; that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. |
| Facts II |
A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene.He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients’ rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife’s health. |
| Question: |
Is the Texas statue a violation of a “right to privacy” implied by the 4th, 5th, 9th, and 14th amendments? |
| Held |
Yes, the statue is unconstitutional – 7-2 |
|
Opinion of the Court |
Dissent |
| REASONS FOR ABORTION LAWS |
Reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence: discourage illicit sexual conduct, State’s interest – some phrase it in terms of duty – in protecting prenatal life (12) |
| RIGHT TO PRIVACY/CONSTITUTIONAL RIGHTS |
The Constitution does not explicitly mention any right of privacy. (13) |
| RIGHT TO PRIVACY/CONSTITUTIONAL RIGHTS |
the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution (13) |
| RIGHT TO PRIVACY/CONSTITUTIONAL RIGHTS |
|
The Court is mistaken in saying that during the period prior to the time the fetus becomes viable (24 weeks), the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus. (48) |
| RIGHT TO PRIVACY/CONSTITUTIONAL RIGHTS |
|
I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate (51) |
| RIGHT TO PRIVACY/CONSTITUTIONAL RIGHTS |
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. (14) |
the Court mistakingly thinks that the Constitution guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother. (49) |
| RIGHT TO PRIVACY/CONSTITUTIONAL RIGHTS |
|
The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes (50) |
| RIGHT TO PRIVACY/CONSTITUTIONAL RIGHTS |
The privacy right involved, therefore, cannot be said to be absolute (15) |
| COMPELLING STATE INTEREST |
The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life (15) |
| COMPELLING STATE INTEREST |
Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest,” and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake (19) |
| COMPELLING STATE INTEREST |
The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more stringently or even to prohibit them in the late stages of pregnancy. (35) |
As in Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be “compelling.” (42) |
| COMPELLING STATE INTEREST |
As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. (25) |
| LIBERTY INTEREST OF THE 14TH AMENDMENT |
The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the “liberty” protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. (30) |
But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. (40) |
| LIBERTY INTEREST OF THE 14TH AMENDMENT |
.” That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. (32) |
To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. (44) |
| 14TH AMENDMENT |
|
There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter. (45) |
| EFFECTS OF THE LAW |
Maternity, or additional offspring, may force upon the woman a distressful life and future. (14) |
| EFFECTS OF THE LAW |
Psychological harm may be imminent. (14) |
| EFFECTS OF THE LAW |
Mental and physical health may be taxed by child care. (14) |
| EFFECTS OF THE LAW |
There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. (14) |
| EFFECTS OF THE LAW |
In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved (14) |
| EFFECTS OF THE LAW |
some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. (15) |
| ARE THE UNBORN “PERSONS”? |
The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment – the word “person,” as used in the Fourteenth Amendment, does not include the unborn. (24) |
| ARE THE UNBORN “PERSONS”? |
The Constitution does not define “person” in so many words But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. (23) |
| ARE THE UNBORN “PERSONS”? |
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. (25) |
| STATUE IS UNCONSTITUTIONAL |
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall…we assume the Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are unconstitutional. (27) |
| ABORTION ON DEMAND |
|
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. (48) |
| JUDICIAL ACTIVISM |
|
The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries (51) |
| JUDICIAL ACTIVISM |
|
Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. (51) |
| JUDICIAL ACTIVISM |
|
But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one. (40) |
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