Question List

Q. In Roe v. Wade, what did the Court say about the kind of abortion laws states may pass?

In Roe v. Wade, the Supreme Court struck down a Texas law that prohibited abortion except in cases where an abortion was performed with the purpose of saving the mother's life.1 The Court decided that a "right" to abortion was encompassed by the due process clause of the Fourteenth Amendment. The Court said the Texas law, as well as any state law that prohibited abortion before viability (or, in the absence of a maternal health exception, after viability), was a denial of due process.

To determine whether a state's abortion law passes muster under the Fourteenth Amendment, the Court created a "trimester framework." Under this framework, a state may not prohibit or regulate abortion during the first trimester. After the first trimester, a state may regulate abortion if the regulation is "reasonably related" to protecting the mother's health. After viability, the state may regulate abortion for the purpose of "promoting its interest in the potentiality of human life." And after viability the state may ban abortion but any such ban must include an exception for the life and health of the mother. And, in Doe v. Bolton, the companion decision to Roe, the Court said that health should be construed to include "all factors-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being of the patient."2 Roe and Doe, the Court stated, are to be "read together."3

And finally, the Court said, a state may require that abortions be performed by physicians.

In Doe v. Bolton, the Court considered a Georgia law that required abortions to be performed in an accredited hospital after approval of the abortion by two physicians and a hospital committee.  The law also required that the woman be a resident of Georgia. The Court struck down each of these provisions.

Consequently, under Roe and Doe the only constitutionally valid abortion regulation that applies through nine months of pregnancy is one that limits the performance of the procedure to physicians. After the first trimester, only regulations aimed at protecting the woman's health can pass constitutional muster. And after viability, a state may demonstrate an interest in protecting the life of the unborn. But the state may not prohibit post-viability abortion - that is, an abortion of a child who can survive outside the womb - without the all-encompassing "health exception."4 Copyright © 2018 NCHLA