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Roe v. Wade (1973)

In Depth

Background

A pregnant Texas woman, with the pseudonym Jane Roe, filed a complaint in federal district court in Dallas challenging a Texas law that prohibited abortions except for the purpose of saving the life of the mother.[1] She brought her claim as a class action, suing not only on her own behalf but on behalf of all women who might find themselves pregnant and wanting a legal abortion. The suit was brought against Henry Wade, the district attorney in Dallas who had responsibility for enforcing the Texas statute. A three judge panel of the district court ruled in favor of Roe, declaring the statute constitutionally invalid but refrained from issuing an injunction against its enforcement. Roe and Wade filed appeals in the United States Supreme Court with Roe seeking injunctive relief and Wade seeking the reversal of the district court's determination that the Texas statute was unconstitutional.[2]

The Statute under Review

The Texas law under review prohibited persons from administering to pregnant women any drug, medicine or means to procure an abortion. The law provided a two to five year prison sentence. The penalty was double for an abortion done without a woman's consent. The law also criminalized those who were accomplices to an abortion and those who attempted but failed to complete an abortion. The statute deemed murder the death of any woman during an illegal abortion or attempted illegal abortion.  The law exempted from its prohibitions any abortion performed upon medical advice to save the life of the mother.[3] The Court noted that similar statutes were in effect in thirty states.

The Court's Holding

The Court declared that the Fourteenth Amendment's guarantee of liberty includes a "right of privacy."  The Court held that this right includes a right to decide whether to have an abortion and it invalidated the Texas statute on this basis. The Court developed a rule that provided that no state may regulate abortion during the first trimester. During the second trimester, the Court said a state may regulate abortion only for the purpose of furthering the health of the mother. After viability - the time at which a child could be born alive - the Court said a state may regulate and even proscribe abortion based on its interest in protecting "potential life," but such a proscription must make an exception for the woman's life and health.  The meaning of health, defined in Roe's companion decision, Doe v. Bolton,[4] is so expansive that it would seem to render any proposed ban meaningless.  Doe defined health to include "all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient."

The opinion was authored by Justice Blackmun and joined by Chief Justice Burger and Justices Douglas, Brennan, Stewart, Marshall and Powell.  The Chief Justice and Justices Stewart and Douglas wrote separate concurring opinions and Justices Rehnquist and White wrote dissents.

The Court's Reasoning

The Court spent seventeen pages of its decision discussing a medical-legal history of abortion and the positions of various medical organizations on the issue while just one paragraph addresses women and the unique experience of pregnancy in the lives of women.

Many of the Court's historical claims have been refuted. [5] The Court relied on an "abortion history" constructed by Cyril Means, who had been general counsel for the National Abortion Rights Action League.

History. The Court first considered a history of abortion examining ancient attitudes, the common law, English statutory law and early American law. The Court noted that abortion was practiced in ancient Greece and Rome. The Court dismissed the Hippocratic Oath's ban on abortion as a minority view.   The Court said that under the common law abortion prior to quickening, defined as "the first recognizable movement of the fetus in utero," was not punished and that scholarly opinion was divided whether it was treated as a serious crime after quickening. The Court said that the earliest English statute on abortion made the same distinction between abortions performed before quickening and those performed after, treating the latter as a capital crime but providing lesser penalties for the former.  England eventually liberalized its abortion law. The Court said that early American law likewise punished abortion more severely after quickening.  By the mid- and late-19th century, the Court said, the quickening distinction had disappeared and penalties for abortion in American law had increased.  The Court said that by the end of the 1950s most states banned abortion except when performed to save the mother's life. Alabama and the District of Columbia had health exceptions and three others states (Massachusetts, New Jersey and Pennsylvania) allowed abortions that were not "unlawful" or "without lawful justification," leaving it to the courts to interpret those standards. The Court noted that by the end of 1970, four more states (Alaska, Hawaii, New York and Washington) had decriminalized abortion performed in early pregnancy.

The Court concluded that, as an historical matter, American women had a more permissive abortion right at the time of the founding of the nation through most of the 19th century than they did from the end of the 19th century through the present.

Medical Opinion. The Court noted that in the late 19th Century medical opinion was opposed to abortion. The Court quoted an American Medical Association (AMA) report on abortion which sought criminalization of abortion because any distinction based on quickening was not medically sound. The AMA noted that the civil law recognized the rights of the unborn child.

The Court said the AMA continued to oppose abortion until 1967 when it took a position of liberalization, allowing it in cases where there was medical evidence that the pregnancy was a risk to the life or health of the mother, or where a pregnancy resulting from rape or incest might threaten the mother's mental or physical health. The AMA would also have allowed abortion in the case of a fetal deformity. The AMA position required a two physician review and performance in an accredited hospital. In 1970, the AMA further liberalized its position allowing abortions consistent with "sound medical judgment" and subject to informed consent but maintained its requirement for performance in a hospital and consultation with two other physicians. The AMA also recognized conscience rights for doctors and others who did not wish to participate in abortion.

The Court concluded its treatment of the history and opinions on abortion by examining the position of the American Bar Association (ABA). The ABA model abortion law allowed abortions to be performed on demand by physicians before 20 weeks. After 20 weeks, the model law allowed abortion if continued pregnancy would endanger the mother's life or gravely impair her physical or mental health.  The model law also permitted abortion if the child would be born with a grave physical or mental defect, and in cases of rape, including statutory rape, and incest.

Arguments for Criminalizing Abortion. The Court said that in general three kinds of arguments are proffered in support of laws criminalizing abortion:  (1) to discourage illicit sexual relations, (2) to protect women from a harmful procedure and (3) to serve the state's interest or to further its duty to protect unborn life.

As to the first, the Court noted that no party raised this argument. The Court said the second argument fails because abortion was now generally safe. As to the third, the Court acknowledged that an interest in "potential life" was at stake.

In dealing with the third argument, the Court noted first that the Fourteenth Amendment guarantees a right of privacy that includes an abortion right. And it said that if such a right were not recognized, women would experience medical harm, stressful lives, mental and physical harms, and stigma.

But the Court said the abortion right is not absolute, that state regulation would be permissible to safeguard health and to protect "potential life" when those interests  became compelling.

The Court noted that while state and federal courts were divided in their evaluation of abortion statutes, most courts agreed that the right of privacy is broad enough to include abortion, that the abortion right is not absolute, and that there is a state interest in health, medical standards and prenatal life.

The District Court held that the Texas law did not serve a compelling interest and Roe argued that there are no state interests at stake. Wade argued that the law served the state's interest in prenatal life.

The Question of Personhood for the Unborn. The Court next turned to the question whether the unborn are persons. The Court noted that Wade and others filing briefs as amici pointed to fetal development of the child to show personhood. The Court said that if personhood could be established, the rights of unborn child would be guaranteed by the Fourteenth Amendment.

The Court said there is no case law treating an unborn child as a person within the Fourteenth Amendments and it stated that the Amendment uses the word "person" to apply only to born person. The Court concluded that the lack of mention in the Fourteenth Amendment coupled with apparent liberal abortion practices at the time of the Amendment's adoption suggested that the Amendment did not mean to include the unborn.

The Court said that doctors, philosophers and theologians cannot agree when human life begins. The Court noted that tort law treats birth as the significant event, allowing recovery for injuries sustained prenatally only when the child was subsequently born alive. To the extent that the law allows a wrongful death action for a child stillborn, the Court said that it is the parent's interest that is being protected, not the child's. The Court also noted that inheritance rights attach at birth.

The Court said there are various theories about when life begins and that it will not take a stance -- and that the State of Texas may not take a stance -- on when human life begins and thereby override the interests of women. The Court concluded that the state may have an interest in protecting women's health and an interest in protecting "potential life" when those interests become compelling.

The Court's Rule for Abortion Laws. The Court constructed a rule for abortion laws indicating when those interests become compelling. The Court decided:

1. During the first trimester, the abortion decision belongs to the physician in consultation with his or her patient. The state may not regulate abortion during this time.

2. The state's interest in protecting women's health becomes compelling after the first trimester. The state may regulate abortion only to the extent the regulation reasonably relates to preserving and protecting maternal health (e.g., qualifications of those who perform abortions, licensure of facilities, etc.).

3. The state's interest in potential life becomes compelling at viability, which is when the unborn child can live outside the mother. The state may regulate and even proscribe abortion except when it is necessary to preserve the life or health[6] of the mother.

The Court noted that a state may define the term "physician" and limit the performance of abortions to physicians only. The Court also noted that its decision was to be read "together" with Doe v. Bolton, the companion decision.

The Concurrences

Justice Stewart.  Justice Stewart wrote a concurring opinion agreeing that the Texas statute was unconstitutional.  He also agreed that the right to an abortion was embraced within the liberty protected by the Due Process Clause of the Fourteenth Amendment.

Chief Justice Burger and Justice Douglas. The Chief Justice and Justice Douglas each wrote a single concurrence in Roe and Doe.  Their concurring opinions are discussed in our summary of Doe.

The Dissents

Then-Justice Rehnquist wrote a dissent in which he questioned whether Jane Roe had standing to challenge the abortion statute as applied to all stages of pregnancy, since her complaint did not state how advanced her pregnancy was when she initiated her lawsuit.  Justice Rehnquist also stated that even if such a plaintiff were properly before the Court, abortion is a medical procedure which does not implicate a right to privacy.  Justice Rehnquist would have upheld an abortion law as long as it has a rational relation to a valid state objective - the same test applied in other areas of social and economic legislation.  He noted that the Court's decision, with its weighing of competing factors, was more akin to a legislative judgment than a judicial one.  Thirty-six states, including Texas, limited abortion at the time the Fourteenth Amendment was adopted, and there is no suggestion that the framers of that amendment intended to withdraw from states the power to regulate abortion.

Justice White wrote a single dissent in Roe and Doe which is discussed briefly in our summary of Doe.



[1] A physician, James Hubert Hallford, also joined the lawsuit but his status as an "intervenor" was subsequently rejected by the Court.  A married couple, under the pseudonyms John and Mary Doe filed a companion complaint and the Court rejected their complaint as well.  The Does argued that if they ever conceived they would like to obtain a legal abortion.  The Court said the Does lacked standing to sue because the "harm" to them of the Texas statute was too speculative.

[2] A federal statute, 28 U.S.C. §1253, allows a party, as here, who was denied by a three judge district court panel injunctive relief an appeal to the Supreme Court, bypassing an intermediate appellate court.  In this case, the parties also filed protective appeals before the relevant intermediate court, the Fifth Circuit.

[3] The Court specifically noted that it was not reviewing a provision of the Texas statute that prohibited killing a child "in a state of being born."

[4] 410 U.S. 179 (1973).

[5]See Joseph W. Dellapenna, Dispelling the Myths of Abortion History (2006).

[6] See supra note 4 and accompanying text.

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