Roe v. Wade

On 22 January 1973, Justice Blackmun read his majority opinion to a room filled with reporters. Reviewing the history of abortion in the United States, he pointed out that "The restrictive criminal abortion laws in effect in a majority of states today . . . are not of ancient or even common law origin." Instead, he said they seemed to have been passed to protect women from a procedure that was, in the nineteenth century, likely to endanger their health. That rationale no longer existed, Justice Blackmun declared, since medical advances had made abortion as safe or safer than childbirth for women.

Justice Blackmun next discussed the High Court's acknowledgment of a "right of personal privacy" in various decisions, including the recent Griswold v. Connecticut birth control case. Then he delivered the crux of his decision:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions on state action . . . or . . . in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision to terminate her pregnancy.

Continuing, Justice Blackmun disagreed with Texas' claim that it had the right to "infringe [on] Roe's rights" to protect "prenatal life." He discussed the use of the word "person" in the U.S. Constitution and found that no such use had "any possible prenatal application," and he specifically found that "the word `person,' as used in the Fourteenth Amendment, does not include the unborn."

However, Justice Blackmun said, neither the woman's right to privacy nor the fetus' lack of a right to the state's protection was absolute:

[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . and . . . 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 the pregnancy, each becomes "compelling."

Finally, Justice Blackmun's decision in Roe v. Wade provided the states with a formula to balance these competing interests. During the first trimester of pregnancy, the abortion decision would be "left to the medical judgment of the pregnant woman's attending physician." During the second trimester, a state might "regulate the abortion procedure in ways that are reasonably related to maternal health." From the end of the second trimester "subsequent to viability," a state might "regulate, and even proscribe, abortion except where it is necessary, in appropriate legal judgment, for the preservation of the life or health of the mother."

Justices Rehnquist and White dissented. Justice Rehnquist, in his brief, said:

I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas by the statute here challenged bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of the word.

. . . I agree with the statement . . . that . . . "liberty," embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation without due process of law.

Justice White wrote in his dissent:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are nevertheless unwanted for any one or more of a variety of reasons--convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc.

The common claim before us is that for any one of such reasons, or for no reason at all . . . any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court for the most part sustains this position: . . . during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus.