Roe v. Wade (1973)

Since the Supreme Court's decision in Roe v. Wade, the legal, moral, and political controversy surrounding the abortion issue has polarized the American public. Two camps—one hailing Roe as a victory for “choice,” the other arguing that the decision deprives the unborn child of its “right to life”—squared off in the wake of the Court's decision. Their protracted political battle continues today. The deep political divisions that the case created, or revealed, reflect not only conflicting social and moral views, but conflicting views of the law as well. The case pitted two accepted doctrines against one another—the individual's “right to privacy” and the “compelling and overriding interest” of a State. Roe v. Wade sought an extension of the “right to privacy,” which the Court explicitly recognized for the first time in the case Griswold v. Connecticut, 1965. In that case, family counselors in Connecticut challenged a State law forbidding the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” In Griswold, the Court decided that there was a “right of privacy” implied by the Bill of Rights. It ruled that the 1st, 3rd, 4th, 5th, 9th, and 14th Amendments together create a right of “marital privacy.”

In Texas, State law prohibited the termination of a pregnancy by artificial means (surgery) except when the life of the mother was in danger. The statute was construed as a “nearly complete ban on abortion.” A Texas woman, claiming privacy as a “fundamental right,” challenged the Texas statute. In 1971 the case was argued before the Supreme Court. In 1972 it was argued again. Roe and a companion case from Georgia, Doe v. Bolton, were the first cases to test, in the Court, the newly recognized “right of privacy” against the “compelling interest” of the States to regulate abortions.

This case involved the right of privacy as implied by Amendments 1, 3, 4, 5, 9, and 14 versus the police power of the States. Did States have a compelling and overriding interest in regulating the health, safety, and morals of the community? Was there an area of personal, marital, familial, and sexual privacy protected by the Bill of Rights? Was the Texas law an unreasonable invasion of privacy, or was it a reasonable exercise of the police power? Were women permitted to terminate pregnancies “at will,” or were fetuses “persons” with rights to be protected by the State?

For Roe: Under the Bill of Rights, a woman has the right to terminate her pregnancy. It is improper for a State to deny individuals the personal, marital, familial, and sexual right to privacy. Moreover, in no case in its history has the Court declared that a fetus—a developing infant in the womb—is a person. Therefore, the fetus cannot be said to have any legal “right to life.” Because it is unduly intrusive, the Texas law is unconstitutional and should be overturned.

For Wade: The State has a duty to protect prenatal life. Life is present at the moment of conception. The unborn are people, and as such are entitled to protection under the Constitution. The Texas law is a valid exercise of police powers reserved to the States in order to protect the health and safety of citizens, including the unborn. The law is constitutional and should be upheld.

By a vote of 7-2, with Justices White and Rehnquist in dissent, the Court agreed with Roe and upheld her right to terminate a pregnancy in the first trimester (90 days). The Court observed that Section 1 of the 14th Amendment contained three references to “person.” In his majority opinion, Justice Blackmun noted that, for nearly all such references in the Constitution, “use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.”

Blackmun's opinion carefully steered between the right to privacy and the question of compelling State interest. On the first point, he wrote, the majority of the justices “do not agree” with Texas that the State “may override the rights of the pregnant woman that are at stake.” On the other hand, the State does have an “important and legitimate interest in protecting the potentiality of human life” and in protecting the mother's health. Blackmun's decision revolved around the development of the fetus during pregnancy. He held that during the first trimester, or three months, of a pregnancy, the woman in consultation with her physician had an unrestricted right to an abortion. During the second trimester, States could regulate abortion to protect a woman's health. Finally, during the third trimester, the State's interest in protecting the potential life of the fetus was sufficient to justify severe restrictions.

Approaching the matter of when life begins, Blackmun was clearly hesitant to commit the Court to any position.

Controversial when announced, the Roe decision remains at the center of the legal controversy over the right to privacy versus the rights of the unborn. In Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992, the Court reaffirmed Roe's central holding but abandoned its trimester structure. The Court permitted States to require informed consent, a 24-hour waiting period, and/or parental notification, but held that States may not place an “undue burden”on a woman's right to an abortion.