FREE ESSAY ON ABORTION

ABORTION

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Index: Social Issues: Abortion
Abortion
In Roe et al. v. Wade District Attorney of Dallas County (1973), one of the most
controversial cases in
recent history, the U.S. Supreme Court struck down all state laws that limit a woman's
right to an
abortion during the first three months of pregnancy. Justices Rehnquist and White
dissented.
Mr. Justice Blackmun delivered the opinion of the Court....
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179,
present
constitutional challenges to state criminal abortion legislation. The Texas statutes
under attack here
are typical of those that have been in effect in many States for approximately a century.
The Georgia
statutes, in contrast, have a modern cast and are a legislative product that, to an
extent at least,
obviously reflects the influences of recent attitudinal change, of advancing medical
knowledge and
techniques, and of new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the
abortion
controversy, of the vigourous opposing views, even among physicians, and of the deep and
seemingly
absolute convictions that the subject inspires. One's philosophy, one's experiences,
one's exposure
to the raw edges of human existence, one's religious training, one's attitudes toward
life and family
and their values, and the moral standards one establishes and seeks to observe, are all
likely to
influence and to color one's thinking and conclusions about abortion....
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal
Code.
These 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. Similar statutes are in existence in a majority of the States.
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, Sec. 1,
set forth in 3
H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has
remained
substantially unchanged to the present time....
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. By an amendment to her complaint Roe
purported
to sue on behalf of herself and all other women similarly situated....
We are next confronted with issues of justiciability, standing, and abstention. Have Roe
and the Does
established that personal stake in the outcome of the controversy, Baker v. Carr, 369
U.S. 186, 204
(1962), that insures that the dispute sought to be adjudicated will be presented in an
adversary
context and in a form historically viewed as capable of judicial resolution,...
The usual rule in federal cases is that an actual controversy must exist at stages of
appellate or
certiorari review, and not simply at the date the action is initiated...
But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day
human
gestation period is so short that the pregnancy will come to term before the usual
appellate process
is complete. If that termination makes a case moot, pregnancy litigation seldom will
survive much
beyond the trial stage, and appellate review will be effectively denied. Our law should
not be that
rigid....
We, therefore, agree with the District Court that Jane Roe had standing to undertake this
litigation,
that she presented a justiciable controversy, and that the termination of her 1970
pregnancy has not
rendered her case moot....
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.
Appellant would
discover this right in the concept of personal liberty embodied in the Fourteenth
Amendment's Due
Process Clause; or in personal, marital, familial, and sexual privacy said to be
protected by the Bill of
Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v.
Baird, 405
U.S. 438 (1972);... Before addressing this claim, we feel it desirable briefly to
survey,... the history of
abortion, for such insight as that history may afford us, and then to examine the state
purposes and
interests behind the criminal abortion laws....
It perhaps is not generally appreciated that the restrictive criminal abortion laws in
effect in a majority
of States today are of relatively recent vintage. Those laws, generally proscribing
abortion or its
attempt at any time during pregnancy except when necessary to preserve the pregnant
woman's life,
are not of ancient or even of common-law origin. Instead, they derive from statutory
changes effected,
for the most part, in the latter half of the 19th century....
It is undisputed that at common law, abortion performed before quickening-the first
recognizable
movement of the fetus in utero, appearing usually from the 16th to the 18th week of
pregnancy-was
not an indictable offense....
In this country, the law in effect in all but a few States until mid-19th century was the
pre-existing
English common law. Connecticut, the first State to enact abortion legislation, adopted
in 1821 that
part of Lord Ellenborough's Act that related to a woman quick with child. The death
penalty was not
imposed. Abortion before quickening was made a crime in that State only in 1860....
Gradually, in the middle and late 19th century the quickening distinction disappeared
from the
statutory law of most States and the degree of the offense and the penalties were
increased. By the
end of the 1950's, a large majority of the jurisdictions banned abortion, however and
whenever
performed, unless done to save or preserve the life of the mother....
It is thus apparent that at common law, at the time of the adoption of our Constitution,
and throughout
the major portion of the 19th century, abortion was viewed with less disfavor than under
most
American statutes currently in effect. Phrasing it another way, a woman enjoyed a
substantially
broader right to terminate a pregnancy than she does in most States today. At least with
respect to
the early stage of pregnancy, and very possibly without such a limitation, the
opportunity to make this
choice was present in this country well into the 19th century. Even later, the law
continued for some
time to treat less punitively an abortion procured in early pregnancy....
The Constitution does not explicitly mention any right of privacy. In a line of
decisions, however, going
back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (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. In varying contexts, the Court or individual Justices have,
indeed, found
at least the roots of that right in the First Amendment, Stanley v. Georgia, 394, U.S.
557, 564 (1969);
in the Fourth and Fifth Amendments,... in the penumbras of the Bill of Rights,... in the
Ninth
Amendment,... or in the concept of liberty guaranteed by the first section of the
Fourteenth
Amendment,... These decisions make it clear that only personal rights that can be deemed
fundamental or implicit in the concept of ordered liberty,... are included in this
guarantee of
personal privacy. They also make it clear that the right has some extension to activities
relating to
marriage,... procreation,... contraception,... family relationships,... and child rearing
and education,...
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of
personal liberty
and restrictions upon state action, as we feel it is, or, as the District Court
determined, in the Ninth
Amendment's reservation of rights to the people, is broad enough to encompass a woman's
decision
whether or not to terminate her pregnancy. The detriment that the State would impose upon
the
pregnant woman by denying this choice altogether is apparent. 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. In other cases, as in this one, the
additional difficulties
and continuing stigma of unwed motherhood may be involved. All these are factors the
woman and
her responsible physician necessarily will consider in consultation.
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. Appellant's arguments
that Texas
either has no valid interest at all in regulating the abortion decision, or no interest
strong enough to
support any limitation upon the woman's sole determination, are unpersuasive. The Court's
decisions
recognizing a right of privacy also acknowledge that some state regulation in areas
protected by that
right is appropriated. 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. In
fact, it is not clear to us that the claim asserted by some amici that one has an
unlimited right to do
with one's body as one pleases bears a close relationship to the right of privacy
previously articulated
in the Court's decisions. The Court has refused to recognize an unlimited right of this
kind in the past.
Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200
(1927)
(sterilization).
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....
...the word person, as used in the Fourteenth Amendment, does not include the unborn.
This is in
accord with the results reached in those few cases where the issue has been squarely
presented....
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a
fetus, if
one accepts the medical definitions of the developing young in the human uterus ... it is
reasonable
and appropriate for a State to decide that at some point in time another interest, that
of health of the
mother or that of potential human life, becomes significantly involved. The woman's
privacy is no
longer sole and any right of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is
present
throughout pregnancy, and that, therefore, the State has a compelling interest in
protecting that life
from and after conception. We need not resolve the difficult question of when life
begins. When those
trained in the respective disciplines of medicine, philosophy, and theology are unable to
arrive at any
consensus, the judiciary, at this point in the development of man's knowledge, is not in
a position to
speculate as to the answer.
It should be sufficient to note briefly the wide divergence of thinking on this most
sensitive and difficult
question. There has always been strong support for the view that life does not begin
until live birth....
In areas other than criminal abortion, the law has been reluctant to endorse any theory
that life, as we
recognize it, begins before live birth or to accord legal rights to the unborn except in
narrowly defined
situations and except when the rights are contingent upon live birth. For example, the
traditional rule
of tort law denied recovery for prenatal injuries even though the child was born
alive....
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. We repeat, however, that the State does have an
important
and legitimate interest in preserving and protecting the health of the pregnant woman,
whether she be
a resident of the State or a nonresident who seeks medical consultation and treatment
there, and that
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 pregnancy, each becomes compelling.
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. This is so because of the now-established medical fact, referred to above at
149, that until
the end of the first trimester mortality in abortion may be less than mortality in normal
childbirth. 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.
Examples of
permissible state regulation in this area are requirements as to the qualifications of
the person who is
to perform the abortion; as to the licensure of that person; as to the facility in which
the procedure is
to be performed, that is, whether it must be a hospital or may be a clinic or some other
place of
less-than-hospital status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this compelling
point, the
attending physician, in consultation with his patient, is free to determine, without
regulation by the
State, that, in his medical judgment, the patient's pregnancy should be terminated. If
that decision is
reached, the judgment may be effectuated by an abortion free of interference by the
State.
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. State regulation protective of fetal life after viability thus has
both logical and
biological justifications. If the State is interested in protecting fetal life after
viability, it may go so far
as to proscribe abortion during that period, except when it is necessary to preserve the
life or health
of the mother....
A state criminal abortion statute of the current Texas type, that excepts from
criminality only a
life-saving procedure on behalf of the mother, without regard to pregnancy stage and
without
recognition of the other interests involved, is violative of the Due Process Clause of
the Fourteenth
Amendment.
...For the stage prior to approximately the end of the first trimester, the abortion
decision and its
effectuation must be left to the medical judgment of the pregnant woman's attending
physician.
...For the stage subsequent to approximately the end of the first trimester, the State,
in promoting its
interest in the health of the mother, may, if it chooses, regulate the abortion procedure
in ways that
are reasonably related to maternal health.
...For the stage subsequent to viability, the State in promoting its interest in the
potentiality of human
life may, if it chooses, regulate, and even proscribe, abortion except where it is
necessary, in
appropriate medical judgment, for the preservation of the life or health of the
mother....
The cases of Roe v. Wade and Doe v. Bolton (1973) were companion cases in which the U.S.
Supreme Court held, with some qualification, that state laws prohibiting abortions were
unconstitutional. Roe involved a Texas statute making it a felony for anyone to destroy a
fetus except
on medical advice for the purpose of saving the mother's life. Doe dealt with a Georgia
statute
allowing an abortion when the woman's life was endangered, when the child would be born
with a
severe defect, or when pregnancy had resulted from rape.
Invalidating both statutes in 7-2 rulings, the Court, speaking through Justice Harry
Blackmun, held
that the constitutional right of privacy-whether based on the concept of personal liberty
in the
Fourteenth Amendment or on the reservation of rights to the people in the Ninth
Amendment-includes the right of a woman to decide whether or not to terminate her
pregnancy.
Blackmun went on to say that the right to an abortion is not unqualified and must be
balanced against
the state's interest in regulation. He outlined what the states might and might not do.
During the first
trimester of pregnancy the states might not proscribe abortions but could regulate
abortion
procedures to protect maternal health. After that the states might regulate or even
prohibit abortions
subject to appropriate medical judgment. The decision aroused nationwide controversy. The
Court has
several times approved states' procedural restrictions, but in 1992 it reaffirmed Roe's
basic rule.
Bibliography:
Faux, M., Roe vs. Wade (1989)
Garrow, David J., Liberty and 
Bibliography
Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994)
Krason, Stephen M., Abortion: Politics, Morality, and the Constitution (1984)
Rubin, Eva, Abortion, Politics, and the Courts (1982; repr. 1987).