Roe v. Wade

410 U.S. 113

Case Year: 1973

Case Ruling: 7-2-

Opinion Justice: Blackmun

FACTS

In August 1969, twenty-one-year-old carnival worker Norma McCorvey claimed to have been raped and was pregnant as a result. Her doctor refused to perform an abortion, citing an 1857 Texas law, revised in 1879, that made it a crime to “procure an abortion” unless it was necessary to save the life of a mother. He provided McCorvey with the name of a lawyer who handled adoptions. The lawyer, in turn, sent her to two other attorneys, Linda Coffee and Sarah Weddington, who he knew were interested in challenging the Texas law.

Coffee and Weddington went after the Texas law with a vengeance, challenging it on all possible grounds: privacy, women’s rights, due process, and so forth. Their efforts paid off; a three-judge district court ruled in their favor, mostly on Ninth Amendment privacy grounds. But because the district court ruling did not overturn the state law, McCorvey, using the pseudonym Jane Roe, and her attorneys appealed to the U.S. Supreme Court.

Once the Court agreed to hear the case, pro-choice and pro-life forces mobilized. On the pro-choice side, the American Civil Liberties Union and other groups helped Weddington and Coffee, who had never appeared before the Court, prepare their briefs and arguments. These groups also lined up numerous amici, ranging from the American College of Obstetricians and Gynecologists to the Planned Parenthood Federation to the American Association of University Women. In general, the pro-choice side wanted to convince the Court that abortion was a fundamental right under the Griswold v. Connecticut (1965)privacy doctrine. Unless Texas could provide a compelling and narrowly drawn interest, the law should fall. It also presented a mass of data indicating that physical and mental health risks are associated with restrictive abortion laws.

The state countered with arguments concerning the rights of fetuses. In its brief, it devoted twenty-four pages, along with nine photographs of fetuses at various stages of development, to depict the “humanness” of the unborn and to support its argument that a state has a compelling interest in protecting human life. The state’s position was supported by several pro-life organizations (including the National Right to Life Committee and the League for Infants, Fetuses, and the Elderly) and groups of doctors and nurses.

On December 13, 1971, the Supreme Court heard oral arguments, and three days later it met to decide the abortion cases. Only seven justices were present because President Richard Nixon’s newest appointees, Lewis F. Powell Jr. and William H. Rehnquist, had not participated in oral arguments. Of the seven participating justices, a four-person majority (Brennan, Douglas, Marshall, and Stewart) thought the abortion laws should be stricken, although for somewhat different reasons. Moreover, they were unsure about the “time problem”--whether a woman could obtain an abortion any time during her pregnancy or over a more limited period, such as the first six months. White came down most definitively in favor of the pro-life position. Burger and Harry A. Blackmun, who had joined the Court in 1969 and 1970, respectively, were less decisive; Burger leaned toward upholding laws prohibiting abortion, and Blackmun leaned toward the pro-choice camp. Although there was disagreement over the reason why the laws were unconstitutional and over the time frame for abortions, the result was clear: the pro-choice side would win by a 5–2 or 4–3 vote, depending on how Blackmun voted. Burger assigned the opinion to Blackmun, whom he had known since grade school.

This assignment triggered a series of events. The first was an irate letter from Douglas to Burger, in which Douglas had two bones to pick: first, as the senior member of the majority, he should have assigned the opinion; second, Blackmun should not have received the assignment in any event because, according to Douglas’s records, Blackmun voted in the minority. Burger responded that he would not change the assignment. He said: “At the close of discussion of this case, I remarked to the Conference that there were, literally, not enough columns to mark up an accurate reflection of the voting.... I therefore marked down no votes and said this was a case that would have to stand or fall on the writing, when it was done.... This is still my view of how to handle ... this sensitive case.”

Still uncertain of how Blackmun would dispose of the case and of what rationale he would use, some of the justices began preparing opinions. Indeed, it took Douglas only a few weeks to circulate a memorandum to Brennan, who responded with some suggestions for revision and the admonition that Douglas hold onto the opinion until Blackmun circulated his. It was a long wait. In mid-May 1972 Blackmun sent around his first draft in Roe--a draft that came to the “right” result in Brennan’s and Douglas’s minds but did so for the wrong (that is, narrowest possible) reason: that the restrictive Texas abortion law was void because it was vague, not because it interfered with any fundamental right. The four pro-choicers were disappointed and urged Blackmun to recast his draft. In so doing, they raised the opinion assignment issue again. Douglas wrote to Blackmun:

In Roe v. Wade, my notes confirm what Bill Brennan wrote yesterday in his memo to you--that abortion statutes were invalid save as they required that an abortion be performed by a licensed physician within a limited time after conception. That was the clear view of a majority of the seven who heard argument. My notes also indicate that the Chief had the opposed view, which made it puzzling as to why he made the assignment at all except that he indicated he might affirm on vagueness. My notes indicate that Byron was not firmly settled and that you might join the majority of four. So I think we should meet what Bill Brennan calls the “core constitutional issue.”

At the same time, Douglas and the others were ready to sign Blackmun’s draft, believing that it represented the best they could do.

They were happier with Blackmun’s effort in Doe v. Bolton (1973), a companion case challenging the Georgia abortion law, because it adopted much of Douglas’s and Brennan’s beliefs about the importance of privacy and women’s rights. Where they thought Blackmun went astray was in exploring the state’s interest in protecting life. In this version, he stressed the point that somewhere around quickening a woman’s right to privacy is no longer “unlimited. It must be balanced against the state. We cannot automatically strike down ... features of the Georgia statute simply because they restrict any right on the part of the woman to have an abortion at will.” Despite the qualms Brennan and Douglas had over such a balancing approach, they planned to sign the opinion; it led Blackmun to the “right” result. Douglas went so far as to “congratulate” Blackmun on his “fine job” and expressed the hope that “we can agree to get the cases down this Term, so that we can spend our energies next Term on other matters.”

Just when it appeared that a five-person majority would coalesce around Blackmun’s opinion, on May 31 Burger initiated efforts to have the case reargued. Ostensibly, his reason was that “These cases ... are not as simple for me as they appear for the others.” He also “complained that part of his problem ... resulted from the poor quality of oral argument.” Brennan, Douglas, Stewart, and Marshall disagreed. In their view, Burger pushed for reargument because he was displeased with Blackmun’s opinion in Doe and thought his side would stand a better chance of victory next term when Powell and Rehnquist would participate in oral argument. Douglas later suggested that Burger believed theDoe opinion would prove embarrassing to President Nixon’s reelection campaign and sought to minimize the damage. The same day Burger issued his memo, Blackmun also suggested that the cases be reargued. In a memo to conference, he wrote: “Although it would prove costly to me personally, in the light of energy and hours expended, I have now concluded, somewhat reluctantly, that reargument in both cases at an early date in the next term, would perhaps be advisable.” Despite Brennan’s and Douglas’s attempts to thwart this action, after White and the two new appointees voted with Burger, on the last day of the 1971 term the Court ordered rearguments in both Roe and Doe.

 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT.

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous 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.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries....

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 in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut (1965), or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut....

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....

Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.

It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously....

A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis.... Thus, it has been argued that a State’s real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.

Modern medical techniques have altered this situation.... Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.... Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.

The third reason is the State’s interest--some phrase it in terms of duty--in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone....

It is with these interests, and the weight to be attached to them, that this case is concerned.

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, 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, 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, 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 appropriate. 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....

The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute’s infringement upon Roe’s rights was necessary to support a compelling state interest, and that, although the appellee presented “several compelling justifications for state presence in the area of abortions,” the statutes outstripped these justifications and swept “far beyond any areas of compelling state interest.” Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State’s determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.

A. The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment....

The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, sec 2, cl. 2, and sec 3, cl. 3; in the Apportionment Clause, Art. I, sec 2, sec 3.... But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.

All this, together with our observation that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn....

This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.

B. 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. The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation.... As we have intimated above, 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....

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 non-resident 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 ... 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.

Measured against these standards, ... the Texas [law], 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. 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....

To summarize and to repeat: 1. 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. (a) 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. (b) 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. (c) 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....

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.... It is so ordered.

MR. JUSTICE REHNQUIST, DISSENTING.

The Court’s opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent....

... I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States(1967).

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. I agree ... that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. 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.... The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective.... But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

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. Unless I misapprehend the consequences of this transplanting of the “compelling state interest test,” the Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.

While the Court’s opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York (1905), the result it reaches is more closely attuned to the majority opinion ... in that case. 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 decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.

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.” Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.”

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter....

For all of the foregoing reasons, I respectfully dissent.

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE REHNQUIST JOINS, DISSENTING.

The Court for the most part sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. 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.

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. 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.