Roe v. Wade

Roe v. Wade, 410 U.S. 113 (1973) was a landmark United States Supreme Court case establishing that most laws against abortion violate a constitutional right to privacy, overturning all state laws outlawing or restricting abortion. It remains one of the most controversial decisions in Supreme Court history.

The Supreme Court's decision

The Court issued its opinion on January 22, 1973, with a 7-2 majority voting to strike down the law and Byron White and William Rehnquist dissenting. On the same day, the same 7-2 majority invalidated a Georgia abortion law in the lesser-known case of Doe v. Bolton, 410 U.S. 179 (1973), involving Georgia's abortion laws.

Related Topics:
January 22 - 1973 - Byron White - William Rehnquist - Georgia - Doe v. Bolton

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Abortion

The opinion of the Court, written by Justice Harry Blackmun, notes that "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage" with criminalization of abortion mostly occurring from law enacted in the latter half of the 19th century. Section VI of the opinion was devoted to an analysis of historical attitudes, including those of the Persian Empire, ancient Greece, the Roman Empire, the Hippocratic Oath, common law, English statutory law, American law, the American Medical Association, the American Public Health Association, and the American Bar Association.

Related Topics:
Persian Empire - Ancient Greece - Roman Empire - Hippocratic Oath - Common law - Statutory law - American Medical Association - American Bar Association

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

State laws outlawing abortion were set aside by the Court, permitting abortions during the first three months of pregnancy and setting standards for regulations after that time to safeguard the woman's health. The Supreme Court of the United States declared unconstitutional all but the least restrictive state statutes. Noting that induced early abortions had become safer than childbirth and holding that the word person in the Constitution of the United States "does not include the unborn," the court defined, within each of the three stages of pregnancy, the reciprocal limits of state power and individual freedom: (a) During the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. (b) After the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.(c) For the stage subsequent to viability, the State, in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe abortion, except where it is necessary, in appropriate medical judgement, for the preservation of the life or health of the mother. In 1980, however, the Court refused to apply this ruling to require the federal government to bear the cost of abortions for women who could not afford them.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Without finding a historical basis for the laws, the Court identified three justifications in Section VII of the opinion to explain the criminalization of abortion: (1) women who can receive an abortion are more likely to engage in "illicit sexual conduct", (2) the medical procedure was extremely risky prior to the development of antibiotics and, even with modern medical techniques, is still risky in late stages of pregnancy, and (3) the state has an interest in protecting prenatal life. As to the first, "no court or commentator has taken the argument seriously" and the statute failed to "distinguish between married and unwed mothers." However, according to the Court, the second and third constitute valid state interests. In Section X, the Court reiterated, "he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman ... and that it has still another important and legitimate interest in protecting the potentiality of human life."

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Valid state interests, however, must be weighed against the constitutional rights granted to individuals in order to determine whether a law is a constitutional exercise of power. Even though the "Constitution does not explicitly mention any right of privacy" the court found support for a constitutional right of privacy in the First Amendment, Fourth Amendment, Fifth Amendment, Ninth Amendment, and Fourteenth Amendment. The court found this "right of privacy" to be "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

However, the Court determined that "arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive." The Court declared, "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

When weighing the competing interests the Court also noted that if the fetus was defined as a person for purposes of the Fourteenth Amendment then the fetus would have a specific right to life under that Amendment. However, given the relatively recent nature of abortion criminalization, the Court determined that the original intent of the Constitution up to the enactment of the Fourteenth Amendment in 1868 did not include the unborn. It should be noted that the Court's determination of whether a fetus can enjoy Constitutional protection is separate from the notion of when life begins. To that, the Court said, "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."

Related Topics:
Person - 1868 - Medicine - Philosophy - Theology - Judiciary

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Relying on the current state of medical knowledge, the decision established a system of trimesters that attempted to balance the state's legitimate interests with the individual's constitutional rights. The Court ruled that the state cannot restrict a woman's right to an abortion during the first trimester, the state can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health," and in the third trimester, demarcating the viability of the fetus, a state can choose to restrict or even to proscribe abortion as it sees fit.

Related Topics:
Trimester - Proscribe

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Justiciability

An aspect of the decision that attracted comparatively little attention was the Court's disposition of the issues of standing and mootness. The Supreme Court does not issue advisory opinions (those stating what the law would be in some hypothetical circumstance). Instead, there must be an actual "case or controversy", including particularly a plaintiff who is aggrieved and seeks relief. In the Roe case, "Jane Roe," who began the litigation in March 1970, had already given birth by the time the case was argued before the Supreme Court in December 1971. By the traditional rules, therefore, there was an argument that Roe's appeal was moot because she would not be affected by the ruling, and also that she lacked standing to assert the rights of pregnant women (other than herself) seeking an abortion. The Court concluded, however, that the case came within an established exception to the rule, one that allowed consideration of an issue that was "capable of repetition, yet evading review." Justice Blackmun's opinion noted that human pregnancy would normally conclude more quickly than an appellate process. "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied." Such a ruling was critical to the Supreme Court's power to review the case, since the Supreme Court dismissed the physician James Hubert Hallford's intervention and affirmed the dismissal of John and Mary Doe.

Related Topics:
Standing - Mootness

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Dissent

Byron White, joined by William Rehnquist, vigorously dissented, calling the Court's decision "an exercise of raw judicial power." He wrote:

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

:I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~