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Decision: Roe v. Wade (1973)

Abortion and Privacy

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Do women have a right to make their own decisions about pregnancy and birth, even including having an abortion if they want one, or does the government have the power to interfere with such decisions and tell women that they are required to carry a pregnancy to term? Where does the government's power over us end and our own power over our selves begin?


Background Information

A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws which outlawed procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene.

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. This last case was dismissed as something that the Court could not rule on because no specific damages could be demonstrated.

Court Decision

The Supreme Court ruled that:

State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term.

The Supreme Court first noted that the laws prohibiting abortion were relatively recent, having been passed in the latter part of the 19th century. Thus, they could not be argued as having a long standing in tradition and common law. On the contrary - early abortions before "quickening" were not prosecutable offenses going back a very long time in English law. So:

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 Court also addressed the question of whether or not there existed a rational basis for the law. Some argued that the laws were passed because of the dangers inherent in such a procedure - but those dangers had long since decreased as medical science improved.

The State also argued that it had an interest in protecting prenatal life - however, there was no record of such a purpose in the Texas case and the claims were contradicted by the fact that there were no laws against self-induced abortion.

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.

So, if there is little rational basis for State intervention, is there also a general right to privacy which covers a woman's ability to decide whether or not her own pregnancy should go to full term? As to a general right to privacy, the Court held:

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, 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; 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.

As to whether or not this general right to privacy should encompass pregnancy, the Court said:

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.

The Court did not, however, agree with the plaintiffs' argument that a woman therefore had a right to have an abortion any time and for any reason. Instead, they agreed that the State does have some valid interest in regulating abortion, so long as such regulation does not make abortion impossible. Thus, the State may restrict abortions in the second and especially third trimester in the interest of protecting the health of the mother.

In a concurring opinion, Justice Stewart noted that earlier decisions in Griswold and Eisenstadt led logically to this one:

...we recognized "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.

Significance

With this decision, abortions became legal for all women across the United States. Even today, the decision is hotly debated - both by people who believe that life begins at conception and by people who do not think that any rights beyond those expressed by the plain text of the Constitution should be judicially recognized and protected.

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