One-Sentence Synopsis: The Constitution protects the right for a woman to choose to terminate her pregnancy prior to viability — i.e., the time at which the fetus cannot survive on its own outside the womb.
Roe v. Wade is a 1973 U.S. Supreme Court opinion that considered the constitutionality of a Texas law which prohibited all abortions except for those necessary to save the life of the mother.
Justice Blackmun, writing for the Court, discussed the history of abortion from ancient attitudes through English law through American history to the present. He also described the development of medical technology to provide safe abortions. With the foregoing background, Justice Blackmun concluded that the abortion issue entailed a woman’s right to privacy: The right to privacy, whether it be founded in the Fourteenth Amendment’s conception of personal liberty and restrictions upon state action, as we feel it is or . . . 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.” Id. at 153.
Justice Blackmun then explained why laws such as the one involved in the case infringed a woman’s right to privacy: “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.” Id. at 153.
The Court stated, however, that a woman’s right to abortion was not absolute and it must be balanced against the state’s interest in protecting prenatal life. In making such balancing, the Court stated that “strict scrutiny” was the proper standard to be used because when “fundamental rights are involved . . . regulation limiting these rights may be justified only by a compelling state interest and . . . legislative enactments must be narrowly drawn to express only legitimate state interests at stake.” Id. at 155.
Applying the foregoing balancing test, the Court observed that a state had compelling interest in protecting maternal health after the first trimester because it was then that abortion became more dangerous than childbirth. The Court also concluded that, “[w]ith 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.” Id. at 163.
The Court, thus, divided pregnancy into three trimesters. During the first trimester, the government could not prohibit abortion and could regulate abortions only as it regulated other medical procedures, such as by requiring that they be performed by a licensed physician. During the second trimester, the government also could not outlaw abortions, but the government may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Finally, for the stage following the fetus viability, the government may prohibit abortions except if necessary to preserve the life or health of the mother.
Audio Recordings: Roe v. Wade Oral Arguments