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Index: Social Issues: Abortion
In Roe et al. v. Wade District Attorney of Dallas County (1973), one of the most controversial cases in
recent history, the U.S. Supreme Court struck down all state laws that limit a woman’s right to an
abortion during the first three months of pregnancy. Justices Rehnquist and White dissented.
Mr. Justice Blackmun delivered the opinion of the Court….
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present
constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here
are typical of those that have been in effect in many States for approximately a century. The Georgia
statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least,
obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and
techniques, and of new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion
controversy, of the vigourous opposing views, even among physicians, and of the deep and seemingly
absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure
to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family
and their values, and the moral standards one establishes and seeks to observe, are all likely to
influence and to color one’s thinking and conclusions about abortion….
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State’s Penal Code.
These make it a crime to procure an abortion, as therein 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. Similar statutes are in existence in a majority of the States.
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, Sec. 1, set forth in 3
H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained
substantially unchanged to the present time….
Jane Roe, a single woman who was residing in Dallas County, Texas, instituted this federal action in
March 1970 against the District Attorney of the county. She sought a declaratory judgment that the
Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the
defendant from enforcing the statutes.
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. She claimed that the Texas statutes were
unconstitutionally vague and that they abridged her right of personal privacy, protected by the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported
to sue on behalf of herself and all other women similarly situated….
We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does
established that personal stake in the outcome of the controversy, Baker v. Carr, 369 U.S. 186, 204
(1962), that insures that the dispute sought to be adjudicated will be presented in an adversary
context and in a form historically viewed as capable of judicial resolution,…
The usual rule in federal cases is that an actual controversy must exist at stages of appellate or
certiorari review, and not simply at the date the action is initiated…
But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human
gestation period is so short that the pregnancy will come to term before the usual appellate process
is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much
beyond the trial stage, and appellate review will be effectively denied. Our law should not be that
We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation,
that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not
rendered her case moot….
The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right,
said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would
discover this right in the concept of personal liberty embodied in the Fourteenth Amendment’s Due
Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of
Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405
U.S. 438 (1972);… Before addressing this claim, we feel it desirable briefly to survey,… the history of
abortion, for such insight as that history may afford us, and then to examine the state purposes and
interests behind the criminal abortion laws….
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority
of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its
attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life,
are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected,
for the most part, in the latter half of the 19th century….
It is undisputed that at common law, abortion performed before quickening-the first recognizable
movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy-was
not an indictable offense….
In this country, the law in effect in all but a few States until mid-19th century was the pre-existing
English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that
part of Lord Ellenborough’s Act that related to a woman quick with child. The death penalty was not
imposed. Abortion before quickening was made a crime in that State only in 1860….
Gradually, in the middle and late 19th century the quickening distinction disappeared from the
statutory law of most States and the degree of the offense and the penalties were increased. By the
end of the 1950’s, a large majority of the jurisdictions banned abortion, however and whenever
performed, unless done to save or preserve the life of the mother….
It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout
the major portion of the 19th century, abortion was viewed with less disfavor than under most
American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially
broader right to terminate a pregnancy than she does in most States today. At least with respect to
the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this
choice was present in this country well into the 19th century. Even later, the law continued for some
time to treat less punitively an abortion procured in early pregnancy….
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going
back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), 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. In varying contexts, the Court or individual Justices have, indeed, found
at least the roots of that right in the First Amendment, Stanley v. Georgia, 394, U.S. 557, 564 (1969);
in the Fourth and Fifth Amendments,… in the penumbras of the Bill of Rights,… in the Ninth
Amendment,… or in the concept of liberty guaranteed by the first section of the Fourteenth
Amendment,… These decisions make it clear that only personal rights that can be deemed
fundamental or implicit in the concept of ordered liberty,… are included in this guarantee of
personal privacy. They also make it clear that the right has some extension to activities relating to
marriage,… procreation,… contraception,… family relationships,… and child rearing and education,…
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. The detriment that the State would impose upon the
pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically
diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force
upon the woman a distressful life and future. Psychological harm may be imminent. Mental and
physical health may be taxed by child care. 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. In other cases, as in this one, the additional difficulties
and continuing stigma of unwed motherhood may be involved. All these are factors the woman and
her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and 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. Appellant’s 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’s decisions
recognizing a right of privacy also acknowledge that some state regulation in areas protected by that
right is appropriated. As noted above, a State may properly assert important interests in safeguarding
health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy,
these respective interests become sufficiently compelling to sustain regulation of the factors that
govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In
fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do
with one’s body as one pleases bears a close relationship to the right of privacy previously articulated
in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past.
Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927)
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….
…the word person, as used in the Fourteenth Amendment, does not include the unborn. This is in
accord with the results reached in those few cases where the issue has been squarely presented….
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if
one accepts the medical definitions of the developing young in the human uterus … 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. The woman’s privacy is no
longer sole and any right of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present
throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life
from and after conception. 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.
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult
question. There has always been strong support for the view that life does not begin until live birth….
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we
recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined
situations and except when the rights are contingent upon live birth. For example, the traditional rule
of tort law denied recovery for prenatal injuries even though the child was born alive….
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of
the pregnant woman that are at stake. We repeat, however, that the State does have an important
and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be
a resident of the State or a nonresident who seeks medical consultation and treatment there, and that
it has still another important and legitimate interest in protecting the potentiality of human life. These
interests are separate and distinct. Each grows in substantiality as the woman approaches term and,
at a point during pregnancy, each becomes compelling.
With respect to the State’s important and legitimate interest in the health of the mother, the
compelling point, in the light of present medical knowledge, is at approximately the end of the first
trimester. This is so because of the now-established medical fact, referred to above at 149, that until
the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It
follows that, from and after this point, a State may regulate the abortion procedure to the extent that
the regulation reasonably relates to the preservation and protection of maternal health. Examples of
permissible state regulation in this area are requirements as to the qualifications of the person who is
to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is
to be performed, that is, whether it must be a hospital or may be a clinic or some other place of
less-than-hospital status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this compelling point, the
attending physician, in consultation with his patient, is free to determine, without regulation by the
State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is
reached, the judgment may be effectuated by an abortion free of interference by the State.
With respect to the State’s important and legitimate interest in potential life, the compelling point is
at viability. This is so because the fetus then presumably has the capability of meaningful life outside
the mother’s womb. State regulation protective of fetal life after viability thus has both logical and
biological justifications. If the State is interested in protecting fetal life after viability, it may go so far
as to proscribe abortion during that period, except when it is necessary to preserve the life or health
of the mother….
A state criminal abortion statute of the current Texas type, that excepts from criminality only a
life-saving procedure on behalf of the mother, without regard to pregnancy stage and without
recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth
…For the stage prior to approximately the end of the first trimester, the abortion decision and its
effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
…For the stage subsequent to approximately the end of 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.
…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 judgment, for the preservation of the life or health of the mother….
The cases of Roe v. Wade and Doe v. Bolton (1973) were companion cases in which the U.S.
Supreme Court held, with some qualification, that state laws prohibiting abortions were
unconstitutional. Roe involved a Texas statute making it a felony for anyone to destroy a fetus except
on medical advice for the purpose of saving the mother’s life. Doe dealt with a Georgia statute
allowing an abortion when the woman’s life was endangered, when the child would be born with a
severe defect, or when pregnancy had resulted from rape.
Invalidating both statutes in 7-2 rulings, the Court, speaking through Justice Harry Blackmun, held
that the constitutional right of privacy-whether based on the concept of personal liberty in the
Fourteenth Amendment or on the reservation of rights to the people in the Ninth
Amendment-includes the right of a woman to decide whether or not to terminate her pregnancy.
Blackmun went on to say that the right to an abortion is not unqualified and must be balanced against
the state’s interest in regulation. He outlined what the states might and might not do. During the first
trimester of pregnancy the states might not proscribe abortions but could regulate abortion
procedures to protect maternal health. After that the states might regulate or even prohibit abortions
subject to appropriate medical judgment. The decision aroused nationwide controversy. The Court has
several times approved states’ procedural restrictions, but in 1992 it reaffirmed Roe’s basic rule.
Faux, M., Roe vs. Wade (1989)
Garrow, David J., Liberty and
Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994)
Krason, Stephen M., Abortion: Politics, Morality, and the Constitution (1984)
Rubin, Eva, Abortion, Politics, and the Courts (1982; repr. 1987).