1. Roe v. Wade, (1973)
2. Facts: Roe was a single pregant woman representing a class action suit against a Texas abortion law that made it a crime to “procure an abortion” except “by medical advice for the purpose of saving the life of the mother.”
3. Procedural Posture: The district court held the law unconstitutional under the 9th amendment.
4. Issue: Whether the Texas anti-abortion law is constitutional.
5. Holding: No.
6. ∏ Argument: The woman’s right to end her pregnancy is absolute based on the considerable pyschological, physical and economic impact that it has on her to bear an unwanted child. This absolute right bars any state imposition of criminal penalties for that choice.
7. ∆ Argument: The state’s determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest which overrides any right of privacy of the mother. The fetus is a “person” within the meaning of the 14th amendment, and is thereby protected directly by the constitution.
8. Majority Reasoning: Although the constitution does not explicitly mention the right of privacy, the court has held that it exists. (Griswold, Meyer). This right is limited to personal rights that are “fundamental.” The right of privacy is broad enough to cover a woman’s decision to terminate her pregnancy. This right is fundamental but this right is not absolute. Although the fetus is not a “person” under the 14th amendment, a state has an interest in safeguarding health of the mother and in the protection of “potential life.” Where there is an attempted regulation of a fundamental right, the state interest must be “compelling.” With respect to the interest in the health of the mother, the state’s interest becomes “compelling” at the end of the first trimester because it becomes significantly more unsafe to perform an abortion after the first trimester. With respect to the interest in the potential life, the “compelling” point is at the viability of the fetus; when it becomes capable of meaningful life outside the mother’s womb - about 7 months. Measured against these standards, the Texas law sweeps too broadly into areas that it does not yet have a “compelling” interest, thus it is an unconstitutional invasion of privacy. Thus, the abortion is left to the woman’s discretion during the first trimester, it may be regulated in ways that are reasonably related to maternal health after the first trimester and before viability, and may be prohibited after viability.
9. Concurrence Reasoning: [Stewart] The “liberty” protected by the due process clause of the 14th amendment covers more than just the freedoms named in the bill of rights. It is a source of protection of “fundamental” substantive rights that can only be infringed upon by a state law that passes the “strict scrutiny” test. The state interests in this case are not compelling enough to support the broad anti-abortion law. [Douglas] gave three meanings of the word “liberty” as used in the 14th amendment. 1) “autonomous control over the development and expression of one’s intellect, interests, tastes, and personality (absolute rights protected by the 1st amendment); 2) “freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children (“fundamental” rights subject to some control by the state), and 3) “freedom to care for one’s health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll or loaf.” (“fundamental”, but subject to regulation on a showing of a “compelling state interest”).
10. Dissent Reasoning: [White] The constitution does not guarantee that the mother’s right to abortion is absolute before viability. The constitution does not balance the “whim” of the mother who does not have a compelling reason for abortion, over the life of the fetus. The majority’s opinion announces this new constitutional right too broadly, removing the state’s legislature’s power to weigh the impacts of abortion on both sides. [Rehnquist] There is not a right of “privacy” involved in this case. The right of abortion is not “so rooted in the traditions and conscious of our people as to be ranked fundamental.”There is only “liberty” guaranteed by the 14th amendment, which is subject to infringment with due process. The standard should be basic “rational relation.” Again, the court goes too far in judging the wisdom of the statute as was the case in Lochner. Breaking the term up into stages and outlining possible regulations that the state may impose on each is usurping the legislative role, not interpreting the 14th amendment.
11. Notes: 2. Blackmun states that he need not resolve when life begins, yet he still draws a line for when the potentiality of human life is “compelling.” The existence of the disagreement as to when life begins does not support the Court drawing an arbitrary line, in fact it substitutes the arbitrary line of the court for the arbitrary line of the state legislature. 3. Roe is perhaps more subjective than Lochner. In Lochner, the invalidations rested either on an illegitimate purpose, or a bad means-ends fit. In contrast, Roe simply states that the state interest is not important (“compelling”) enough. 8. Justice O’Connor’s dissent in Akron advocated a substantial change in the Court’s approach to abortion cases. She felt that the “stages” of pregnancy were too arbitrary and subject to differing interpretation based on the differing medical technology available at the time. Rather than the strict scrutiny/trimester approach of Roe, she advocated that an abortion regulation “is not unconsitutional unless it unduly burdens the right to seek an abortion.” If the law is “unduly brudensome” then it should be subjected to strict scrutiny, but not before. In Thornburgh, the same “undue burden” theme was raised by the O’Connor. Also, Justice White felt that the Roe decision and its progeny went too far by legislating requirements that were not fairly read into the Consitution, usurping the power of the people from overruling through corrective legislation. In Akron II, the court struck down a statute requiring the provision of information to the aborting mother, such as alternatives available and the probable date of viability of the fetus, as being a significant obstacle to the woman’s ability to get an abortion, and not related to the state’s interest in protecting the health of the mother and potential life of the baby.
