Abortion

Although the two cases before the Court appeared by their titles to involve the fates of two individuals, Roe and Doe, in reality both suits were brought by many people representing many different interests. Roe v. Wade was argued on behalf of all women of the state of Texas—in legal terminology, it was a CLASS ACTION suit. Thirty-six abortion reform groups filed briefs, or reports, with the court on Roe's behalf. These included women's, medical, university, public health, legal, WELFARE, church, population control, and other groups. The anti-abortion side of the case included representatives from seven different anti-abortion groups and the attorneys general of five states.

Roe involved a person using the pseudonym Jane Roe—actually Norma McCorvey, who revealed her identity in 1984. Roe, an unmarried, pregnant woman from Texas, wanted to have an abortion, but an existing abortion statute prevented her from doing so. The Texas statute, originally passed in 1857, outlawed abortion except to save the mother's life. Roe filed a lawsuit in federal district court on behalf of herself and all other pregnant women. She sought to have the abortion statute declared unconstitutional as an invasion of her right to privacy as was protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments in GRISWOLD V. CONNECTICUT, 381 U.S. 479, 513, 85 S.Ct. 1678, 14 L.Ed. 2d 510 (1965). She also sought to have an INJUNCTION, or court order, issued against the statute's enforcement so that she might go forward with the abortion. The abortion reform movement attached two other cases to Roe's in an attempt to represent a wider range of the interests involved in the issue. A physician, James Hallford, who was being prosecuted under the statute for two abortions he had performed, also filed suit against the Texas law, as did a childless couple, the Does.

The three-judge district court combined Roe's case with the cases of Hallford and the Does, but later dismissed the suit brought by the Does on the grounds that neither had violated the law and the woman was not pregnant. The district court agreed with Roe that the law was unconstitutionally vague and violated her right to privacy under the Ninth Amendment—which allows for the existence of rights, like that of privacy, not explicitly named in the Constitution's Bill of Rights—and the FOURTEENTH AMENDMENT. It refused, however, to grant the injunction allowing her to go ahead with the abortion. Roe then appealed the denial of the injunction to the U.S. Supreme Court.

Doe v. Bolton involved a 1968 Georgia statute that allowed abortion if necessary to save the mother's life, in the case of pregnancy resulting from rape or INCEST, or if the baby was likely to be born with serious birth defects (Ga. Crim. Code § 26-1202 a, b). However, the statute also created procedural requirements that effectively would have allowed few abortions. Those requirements included hospital accreditation, committee approval, two-doctor agreement, and state residency. The case concerned Mary Doe, who had sought an abortion at Grady Memorial Hospital, in Atlanta. She claimed that she had been advised that pregnancy would endanger her health, but the hospital's Abortion Rights Committee denied her the abortion. She sought a DECLARATORY JUDGMENT holding that the Georgia law unconstitutionally violated her right to privacy as well as her Fourteenth Amendment guarantees of DUE PROCESS and EQUAL PROTECTION. She also sought an injunction against the law's enforcement.

Roe and Doe were filed in March and April of 1970, and the women's pregnancies would not have lasted through December 1970. The Court heard the cases in December 1971 and October 1972, and they were not resolved until January 1973, when the Court announced its decisions.

In Roe, the Court, on a 7–2 vote, found the Texas abortion statute unconstitutional. In its opinion, written by Justice HARRY A. BLACKMUN, the Court held that the law violated a right to privacy guaranteed by the Due Process Clause of the Fourteenth Amendment. However, the Court further held that such a right is a "qualified" one and subject to regulation by the state. The state has "legitimate interests in protecting both the pregnant woman's health and the potentiality of human life" (i.e., the life of the fetus). To specify when the state's interests emerge, the Court divided pregnancy into twelve-week trimesters. In the first trimester, the state cannot regulate abortion or prevent a woman's access to it. It can only require that abortions be performed by a licensed physician and under medically safe conditions. During the second trimester, the state can regulate abortion procedures as long as the regulations are reasonably related to the promotion of the mother's health. In the third trimester, the state has a dominant interest in protecting the "potentiality" of the fetus's life. A state may prohibit abortions during this time except in cases where they are essential to preserve the life or health of the mother. The Court also cited judicial precedent in holding that the fetus is not a "person" as defined by the Fourteenth Amendment.

In Doe, the Court found the Georgia statute to be unconstitutional as well, holding that it infringed on privacy and personal liberty by permitting abortion only in restricted cases. The Court ruled further that the statute's four procedural requirements—hospital accreditation, hospital committee approval, two-doctor agreement, and state residency—violated the Constitution. The state could not, for example, require that abortions be performed only at certain hospitals, because it had not shown that such restrictions advanced its interest in promoting the health of the pregnant woman. Such a requirement interfered with a woman's right to have an abortion in the first trimester of pregnancy, which the Court in Roe had declared was outside the scope of state regulation.