In the decades immediately following the Civil War (1861–1865), a majority of the states enacted criminal statutes prohibiting the termination of pregnancies. These laws placed grave burdens on women who wished to avoid childbirth. In the 1960s, women began filing lawsuits in state and federal courts challenging their constitutionality. In Roe v. Wade, the Supreme Court held that the decision to abort a pregnancy was a personal liberty protected by the Fourteenth Amendment. The Court, however, said that this right was not absolute and permitted the states to impose some regulations on its exercise in order to further their interests in safeguarding women’s health and protecting potential human life. The scope of the state’s power in this area, however, is very limited, and, as a consequence of Roe, abortion became freely available as an option to pregnant women throughout the country.
Roe v. Wade proved to be the most controversial decision that the Court made following the retirement of Chief Justice Earl Warren in 1969. It helped galvanize many Protestant fundamentalists and Roman Catholics into an unprecedented level of political activity that contributed to a movement of the Republican Party to the right of the political spectrum. Failing in their attempt to nullify Roe by means of a constitutional amendment, conservative Republican presidents and members of Congress sought to change the makeup of the Supreme Court by nominating and confirming justices committed to overturn the decision. A Supreme Court nominee’s position on Roe became the focus of Senate confirmation hearings, with supporters of the Court’s decision opposing any nominee who they feared would vote to overturn it. Once on the Court, even conservative justices, however, are reluctant to violate the rule of precedent and to deprive women of a constitutional right on which they have relied for decades, regardless of their views of the constitutional soundness of the reasoning underpinning Roe.
An unmarried pregnant woman who wished to terminate her pregnancy by abortion, using the pseudonym Jane Roe, filed a lawsuit in the federal district court in Dallas, Texas, asking the Court to declare the state’s criminal abortion law unconstitutional. The Texas statute permitted abortion only when necessary to save the life of the mother. The special three-judge district court agreed that the law was inconsistent with the Fourteenth Amendment of the U.S. Constitution. On appeal, the Supreme Court, in a seven-totwo decision, affirmed the district court’s judgment. Justice Harry Blackmun wrote the opinion for the Court. The Texas statute criminalizing abortion had remained unchanged since 1857. In a companion case, Doe v. Bolton (1973), the Court invalidated a Georgia statute enacted in 1968, even though it reflected more modern thinking about abortion, because it also placed too many constraints on the woman’s right to end her pregnancy.
The principal issue before the Court was whether the Constitution recognizes a right of women to abort their pregnancies. The constitution, acknowledged Justice Blackmun, does not mention abortion. Section 1 of the Fourteenth Amendment, however, prohibits the states from depriving any person of liberty without due process of law. Following ratification of the Fourteenth Amendment in 1868, the Supreme Court at first interpreted the language as authorizing state authorities to deprive individuals of their freedom, for example through incarceration, but only after affording them a fair trial. This approach was known as the ‘‘procedural due process’’ understanding of the Fourteenth Amendment. In the 1880s, however, the Supreme Court began to strike down state laws that constricted people’s economic liberties on the grounds that they were unfair. An excellent example is Lochner v. New York (1905), where the Court found a New York law limiting the number of hours that bakers could work unconstitutional. This interpretation became known as the ‘‘substantive due process’’ reading of the Fourteenth Amendment. After 1937, the Court began employing the substantive due process doctrine to invalidate state laws, such as the one challenged in Roe, that intrude upon noneconomic, or personal, liberty.
In Griswold v. Connecticut (1965), in an appeal brought by a married couple, the Supreme Court held that a state law prohibiting the use of contraceptives denied a liberty protected by the due process clause of the Fourteenth Amendment, a freedom that the Court extended to the unmarried in 1972 (Eisenstadt v. Baird). In Loving v. Virginia (1967), the Court ruled that men and women have a constitutional right to marry whomever they wish, regardless of race. In Roe, Justice Blackmun explained that contraception, marriage, and abortion were personal freedoms belonging to a subset of liberty that could be described as the right of privacy. He pointed out that, although the Constitution never uses the term ‘‘privacy,’’ it implicitly recognizes zones of privacy. Justice Louis Brandeis first referred to privacy as a constitutional right in 1928 in a dissent in a Fourth Amendment case, Olmstead v. United States, which he described as the right to be let alone by the government. Privacy is, therefore, an implied right, found in the shadows, or penumbras, cast by such explicit provisions of the Bill of Rights as the First Amendment’s guarantee of freedom of speech and press, the Fourth Amendment’s ban on unreasonable searches and seizures, and the Fifth Amendment’s right to remain silent during governmental interrogation. The district court also had referred to the Ninth Amendment which recognizes that individuals enjoy rights in addition to those explicitly mentioned in the first eight amendments of the Constitution (Bill of Rights). Justice Blackmun, however, grounded the abortion right in the concept of personal liberty guaranteed against state action by the due process clause of the Fourteenth Amendment.
The next issue faced by the Court was whether the fetus is a human being and, as such, enjoys the right to life protected by the same due process clause of the Fourteenth Amendment on which Jane Roe was relying. Justice Blackmun held that human life does not begin until birth, and thus denied any constitutional rights to the embryo or fetus.
Justice Blackmun regarded the Constitution as a living, evolving document, whose meaning changes with the needs of society and popular attitudes. He noted that there was a flurry of activity in the state legislatures during the Victorian age to make abortion a crime. This punitive treatment of abortion stood in sharp contrast with the English common law that existed at the time the Constitution was drafted and in the laws of ancient Greece and Rome and the original position of the Catholic Church, all of which permitted abortion at least until the moment of quickening, when the mother could feel the fetus move on its own within the womb. As the medical procedure of abortion became safer, however, and women began asserting their interests, states began in the 1960s to make abortion more readily available, either through legislative action or judicial decision. The Roe decision joined this progressive trend in the expansion of women’s choices.
The Court rejected the more extreme claim made by the plaintiff that women have a constitutional right to do what they want with their bodies. In earlier decisions, for example, the Supreme Court had upheld the right of states to make immunization compulsory. Justice Blackmun said that the appropriate standard to use in measuring restraints upon such a fundamental right as abortion is whether the state has a compelling interest in restricting its exercise. He found two such compelling interests: the health of the mother and preservation of potential human life. In order to strike a reasonable balance between the woman’s personal liberty and the state’s interests in restraining that liberty, Justice Blackmun divided human gestation into three periods, or trimesters. During the first trimester, abortions are safer than childbirth. Therefore, the woman has an unlimited right to terminate her pregnancy as long as she can find a qualified medical professional to perform the procedure. Because abortions performed after the twelfth week of pregnancy pose greater risk to the woman’s health, the state can intervene by prescribing the kind of facility where abortions can be procured. After viability, the point where the fetus could live on its own outside the mother’s womb, which occurs approximately at the end of the second trimester, the state can prohibit all abortions except those necessary for the woman’s life or health. Health, however, includes mental health. The decision whether a late-term abortion is necessary to preserve a woman’s mental health, or well-being, is one for the attending physician to make alone, as a matter of professional judgment. The physician can consider such variables as the woman’s age, income, marital status, and the potential burden of rearing an unwanted child. The result of the Court’s reasoning in Roe is that women enjoy, for all practical purposes, nearly an absolute right to abortion, in spite of Chief Justice Warren Burger’s statement in his concurring opinion that Roe does not give women a right to abortion on demand.
The Supreme Court has allowed some restrictions on the abortion right. In 1989 in Webster v. Reproductive Health Service, the Court upheld a Missouri law prohibiting public facilities and public employees from being used to perform abortions. The Court, in Hodgson v. Minnesota (1990), ruled that states can require minors to notify a parent prior to procuring an abortion or obtain the consent of a judge if parental notification would be unwise. In Planned Parenthood v. Casey (1992), the Court upheld a Pennsylvania requirement that a physician must provide state-scripted information about abortion to a woman twenty-four hours in advance of the procedure.
In Lawrence v. Texas (2003), homosexuals relied on the right to sexual privacy, developed in Roe, to challenge successfully state laws treating sodomy as a criminal act. The Court has yet to develop the full scope of the right to privacy, a right invoked by advocates of assisted suicide and in other areas where states continue to limit personal choice.
KENNETH M. HOLLAND
References and Further Reading
Cases and Statutes Cited
See also Abortion; Due Process of Law (V and XIV); Doe v. Bolton, 410 U.S. 179 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Lawrence v. Texas, 539 U.S. 558 (2003); Loving v. Virginia, 388 U.S. 1 (1967); Olmstead v. United States, 277 U.S. 438 (1928); Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992); Reproductive Freedom; Right of Privacy; Substantive Due Process; Webster v. Reproductive Health Services, 492 U.S. 490 (1989)