Roe v. Wade, 410 U.S. 113 (1973)

Notable Items:

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• A full recounting of the facts is available below

Procedural History:

• Jane Roe, a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county.
• She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.
• Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions.
• She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
• James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action.
• ... he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196.
• He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
• John and Mary Doe, a married couple, filed a companion complaint to that of Roe.
• The two actions were consolidated and heard together by a duly convened three-judge district court.
• The court held that Roe and members of her class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to allege facts sufficient to state a present controversy, and did not have standing.
• It concluded that, with respect to the requests for a declaratory judgment, abstention was not warranted.
• On the merits, the District Court held that the "fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment," and that the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs' Ninth Amendment rights.
• The court ... declared the abortion statutes void, and dismissed the application for injunctive relief.

Rationale

Blackmum Majority Opinion (Burger, Douglas, Brennan, Steward, Marshall, Powell)

• In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.
• These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, are included in this guarantee of personal privacy.
• This right of privacy, ..., is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
• We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.
• A full description of the rationale is available below

Burger Concurrance (??)

Douglas Concurrance (??)

• [Part I]
• The Ninth Amendment obviously does not create federally enforceable rights.
• But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the Constitution.
• Many of them, in my view, come within the meaning of the term "liberty" as used in the Fourteenth Amendment.
• First is the autonomous control over the development and expression of one's intellect, interests, tastes, and personality.
• These are rights protected by the First Amendment and, in my view, they are absolute, permitting of no exceptions. [emphasis added]
• Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.
• These rights, unlike those protected by the First Amendment, are subject to some control by the police power. [emphasis added]
• These rights are "fundamental," and we have held that in order to support legislative action the statute must be narrowly and precisely drawn and that a "compelling state interest" must be shown in support of the limitation.
• Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.
• These rights, though fundamental, are likewise subject to regulation on a showing of "compelling state interest." [emphasis added]
• The Georgia statute is at war with the clear message of these cases - that a woman is free to make the basic decision whether to bear an unwanted child.
• [Part II]
• The State has interests to protect.
• The "liberty" of the mother, though rooted as it is in the Constitution, may be qualified by the State for the reasons we have stated
• I am not prepared to hold that a State may equate, as Georgia has done, all phases of maturation preceding birth.
• In summary, the enactment is overbroad
• [Part III]
• The good-faith decision of the patient's chosen physician is overridden and the final decision passed on to others in whose selection the patient has no part.
• This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails.
• The protection of the fetus when it has acquired life is a legitimate concern of the State.
• Georgia's law makes no rational, discernible decision on that score.
• For under the Code, the developmental stage of the fetus is irrelevant when pregnancy is the result of rape, when the fetus will very likely be born with a permanent defect, or when a continuation of the pregnancy will endanger the life of the mother or permanently injure her health.

Stewart Concurrance (??)

• In 1963, this Court, in Ferguson v. Skrupa, purported to sound the death knell for the doctrine of substantive due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth Amendment.
• As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.
• Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.
• Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.
• The question then becomes whether the state interests advanced to justify this abridgment can survive the "particularly careful scrutiny" that the Fourteenth Amendment here requires.
• The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her.
• These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more stringently, or even to prohibit them in the late stages of pregnancy.
• But such legislation is not before us, and I think the Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment of personal liberty worked by the existing Texas law.

?? Concurrance (??)

White dissent (Rehnquist)

• 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 ....
• I find nothing in the language or history of the Constitution to support the Court’s judgment.
• As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
• This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.
• Dissent missing from Justia.com.
• Dissent found at WikiSource.

Rehnquist dissent (alone)

• [Part I]
• Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff who was in her first trimester of pregnancy at some time during the pendency of her lawsuit.
• We know only that plaintiff Roe at the time of filing her complaint was a pregnant woman; for aught that appears in this record, she may have been in her last trimester of pregnancy as of the date the complaint was filed. [then clarify the record.]
• [Part II]
• I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case.
• If the Court means by the term "privacy" no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of "liberty" protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty.
• But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law.
• The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co. (1955)
• The Court eschews the history of the Fourteenth Amendment in its reliance on the "compelling state interest" test.
• But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment.
• As in Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be "compelling."
• The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts (1934).
• [Part III]
• The Texas statute is struck down in toto, even though the Court apparently concedes that, at later periods of pregnancy Texas might impose these self-same statutory limitations on abortion.
• My understanding of past practice is that a statute found to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply "struck down" but is, instead, declared unconstitutional as applied to the fact situation before the Court. Yick Wo v. Hopkins; Street v. New York.

Full Recounting of Facts

Majority Full Argument

• [Part I -- Statues]
• The Texas statutes that concern us here ... make it a crime to "procure an abortion," as therein defined, or to attempt one, except with respect to "an abortion procured or attempted by medical advice for the purpose of saving the life of the mother."
• Texas first enacted a criminal abortion statute in 1854.
• [Part II]
• [Part II -- Facts and Procedural History]
• [Part III -- Jurisdiction]
• [Part IV -- Justiciability, Standing, and Abstention]
• [Part V]
• The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy.
• Griswold v. Connecticut, (1965); Eisenstadt v. Baird (1972)
• [Part VI -- History of Abortion]
• [Part VII -- History of Abortion Laws]
• [Part VIII -- Right to Privacy includes Abortion]
• In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.
• These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, are included in this guarantee of personal privacy.
• This right of privacy, ..., is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
• Specific and direct harm medically diagnosable even in early pregnancy may be involved.
• Maternity, or additional offspring, may force upon the woman a distressful life and future.
• Psychological harm may be imminent. Mental and physical health may be taxed by child care.
• There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.
• On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.
• With this we do not agree.
• As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.
• At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.
• The privacy right involved, therefore, cannot be said to be absolute.
• We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.
• A majority [of those federal and state courts that have recently considered abortion law challenges], in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights.
• [Part IX -- Status of Fetus]
• The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment.
• ... the word "person," as used in the Fourteenth Amendment, does not include the unborn.
• The pregnant woman cannot be isolated in her privacy.
• The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned.
• In short, the unborn have never been recognized in the law as persons in the whole sense.
• [Part X -- Ruling]
• In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.
• With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester.
• It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.
• With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability.
• This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb.
• ... the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. [invalidation by Overbreadth]
• The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the legal justification for the procedure.
• The statute, therefore, cannot survive the constitutional attack made upon it here.
• [Part XI -- Restatement of Ruling]
• [Part XII -- Relief ]
• We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are unconstitutional.
• A list of the material facts is available above
• The core of the rationale is available above