Roe v. Wade, 410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147 (1973)

Facts—Texas statutes prohibited abortions except by medical advice for the purpose of saving the life of the mother. A woman proceeding under the pseudonym of Jane Roe instituted a federal class action against the district attorney of Dallas County challenging the validity of the statutes. Because the pregnancy did not threaten her life, she could not obtain a legal abortion in Texas.

Questions—(a) Does the term “person” as used in the Fourteenth Amendment include the unborn? (b) Does the right of privacy include a woman’s decision on an abortion?

Decisions—(a) No; (b) Yes, at least through the second trimester of pregnancy.

ReasonsJ. Blackmun (7–2). (a) The Constitution does not define “person” as such. However, the use of the word in the various instances where it is used in the Constitution is such that the word has application only postnatally. The unborn have never been recognized in the law as persons in the whole sense. “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.” Abortion laws largely developed in the nineteenth century. They have been explained as attempts: to discourage illicit sex (Texas has not advanced this argument in this case); to protect the health of women at a time when the pro cedure often posed health risks that were greater than carrying a pregnancy to term; and to protect prenatal life.

(b) The Constitution does not explicitly recognize any right of privacy. However, for years the Court has recognized that a right of personal privacy does exist under the Constitution. This has been primarily based upon the Fourteenth Amendment’s concept of personal liberty and the Ninth Amendment’s reservation of rights to the people. This right is not unqualified and is subject to state regulation when important interests intervene. The right of privacy is broad enough to cover the decision as to an abortion. The right is not absolute and is subject to state interests as to protection of health, medical standards, and prenatal life.

Pregnancy can be divided into three-month periods—trimesters. During the first period there is no agreement as to the fetus being a person and risks to women from abortion are not greater than the risks of childbirth, so the discretion rests with the woman and her physician. During the second trimester, the health risks to women from abortion increase sufficiently to justify state regulations of the procedure to protect such health. During the final trimester, when the fetus is viable and can sustain life outside the womb, the state may even proscribe abortions, except when necessary to preserve the life or health of the mother.

J. White and J. Rehnquist authored dissents questioning federal intervention in this area previously left to the states and further questioning the application of the Fourteenth Amendment to an issue so far removed from its original purpose.

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