Abortion Case Highlights Divisions

Supreme Court Decision in Roe v. Wade (1973)

The Supreme Court’s decision in the controversial case of Roe v. Wade was both a cause and a consequence of America’s cultural unrest. The decision legalized abortion, reversing state-level restrictions that had banned the procedure. Justice Harry Blackmun wrote the Court’s opinion. The other excerpts are amicus curiae or “friend of the court” briefs. One is from Nancy Stearns on behalf of the Women’s Health and Abortion Project supporting Jane Roe (the pseudonymous name of the woman bringing the appeal). The second, from the National Right to Life Committee, challenged the constitutional arguments supporting abortion rights.

Edited Decision of Justice Harry Blackmun in Roe v. Wade

The Constitution does not explicitly mention any right of privacy … 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.…

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action … 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. 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. 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.…

Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest,” and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.…

We repeat … that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman … 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.” …

To summarize and to repeat: A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy state and without recognition of the other interests involved, is inviolate of the Due Process Clause of the Fourteenth Amendment.…

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.

Amicus Curiae Brief in Support of Jane Roe, New Women’s Lawyers; Women’s Health and Abortion Project, Inc.; and National Abortion Action Coalition

Under the Fourteenth Amendment to the Constitution, no state shall “… deprive any person of life, liberty, or property without due process of law.” The courts have not yet, however, begun to come to grips with the fact that approximately one half of our citizenry is systematically being denied those guarantees of the Fourteenth Amendment. That is exactly the effect of the abortion laws of Texas and Georgia, and nearly every other state in the United States. Amici urge this Court not to shrink from redressing the constitutional wrongs perpetrated on women.…

The decision by a woman of whether and when she will bear children may be the most fundamental decision of her life because of its far-reaching significance, affecting almost every aspect of her life from the earliest days of her pregnancy.…

Persons seeking to uphold restrictive abortion laws argue that the State has a compelling interest in protecting human life. Amici could not agree more. But, we argue that the responsibility of the State runs to persons who are living and that the State may not maintain laws which effect the most serious invasions of the constitutional rights of its citizens.…

[W]hile governments profess their overwhelming concern for human life, they force their female citizens into the intolerable dilemma of choosing between what in many instances would be a totally irresponsible act of bearing and casting off, or even “raising” an unwanted child or jeopardizing their life and health, both physical and mental, by obtaining an illegal abortion or attempting to self-abort.…

Pregnancy, from the moment of conception, severely limits a woman’s liberty. In many cases of both public and private employment women are forced to temporarily or permanently leave their employment when they become pregnant. The employer has no duty to transfer a pregnant woman to a less arduous job during any stage of pregnancy (should the woman or her doctor consider this advisable); nor is there any statutory duty to rehire the woman after she gives birth.… [R]egardless of whether the woman wishes and/or needs to continue working, regardless of whether she is physically capable of working, she may nonetheless be required to stop working solely because of her pregnancy. In many if not most states women who are public employees are compelled to terminate their employment at some arbitrary date during pregnancy regardless of whether they are capable of continuing work.…

Under these circumstances, a case can well be made that the anti-abortion law, in compelling a pregnant woman to continue this condition against her wishes, is not merely a denial of liberty, but also an imposition of cruel and unusual punishment on the woman.…

Here we see inextricably the rights to life and liberty are mixed and even more how laws restricting abortion deny women both.…

For a woman perhaps the most critical aspect of liberty is the right to decide when and whether she will have a child — with all the burdens and limitations on her freedom which that entails. But that has been robbed from her by men who make the laws which govern her.…

Restrictive laws governing abortion such as those of Texas and Georgia are a manifestation of the fact that men are unable to see women in any role other than that of mother and wife.…

The statutes of Georgia, Texas and nearly every other state in the nation similarly deny to women throughout the country their most precious right to control their lives and bodies.…

Millions of women are now becoming truly conscious of the manifold forms of oppression and discrimination of their sex in our society. They are beginning to publicly express their outrage at what they have always known — that bearing and raising a child that they do not want is indeed cruel and unusual punishment. Such punishment involves not only an indeterminate sentence and a loss of citizenship rights as an independent person … great physical hardship and emotional damage disproportionate to the crime of participating equally in sexual activity with a man … but is punishment for her status as a woman and a potential child-bearer.… Abortion laws reinforce the legally legitimized indignities that women have already suffered under for too long and bear witness to the inferior position to which women are relegated. The total destruction of a woman’s status in society results from compelling her to take sole responsibility for having the illegal abortion or bear the unwanted child, and suffer the physical hardship and mental anguish whichever she chooses.…

Men (of whom the legislature and courts are almost exclusively composed) must now learn that they may not constitutionally impose the cruel penalties of unwanted pregnancy and motherhood on women, where the penalties fall solely on them.

Amicus Curiae Brief in Support of Henry Wade, National Right to Life Committee

The National Right to Life Committee is a non-sectarian, interdisciplinary organization that is committed to informing and educating the general public on questions related to the sanctity of human life. Protecting the right to life of the unborn child is of central concern for NRLC. The Committee believes that proposals for total repeal or relaxation of present abortion laws represent a regressive approach to serious human problems. NRLC is in favor of a legal system that protects the life of the unborn child, while recognizing the dignity of the child’s mother, the rights of its father, and the responsibility of society to provide support and assistance to both the mother and child.…

… NRLC sees no point in belaboring the scientifically obvious. Life begins at conception and for practical medical purposes can be scientifically verified within 14 days.…

Let us then address ourselves specifically to the question of balancing the two rights which may appear to be in conflict in these cases. That question must be: To what extent can the State protect the right of an unborn infant to continue its existence as a living being in the face of a claim of right of privacy on the part of a woman to decide whether or not she wishes to remain with child?

This Court has decided that the Constitution protects certain rights of privacy on the part of a woman arising from the marital relationship which cannot be unjustifiably interfered with by the State. NRLC believes that the genesis of such rights, to the extent such rights may exist, must be found among the “penumbral” personal liberties protected by the Due Process Clause of the Fifth Amendment. Yet equally unchallengeable is the proposition that an unborn child’s right not to “be deprived of life,” to quote the words of the Due Process Clause itself, is also a fundamental personal right or liberty protected by that same amendment and entitled to the traditional searching judicial scrutiny and review afforded when basic personal liberties are threatened by state action, whether legislative or judicial in character. Therefore, it is very clear that this case is not one, as the appellants would portray it, which involves merely the balancing of a right of personal liberty (i.e., a married woman’s privacy) against some competing, generalized state interest of lower priority or concern in an enlightened scheme of constitutional values, such as the state’s police power. Here, the Court must choose between a nebulous and undefined legal “right” of privacy on the part of a woman with respect to the use of her body and the State’s right to prevent the destruction of a human life. That election involves the determination as to whether the State’s judgment that human life is to be preferred is a prohibited exercise of legislative power.

There would be no question of the answer, of course, if the choice were between a woman’s “right to privacy” and the destruction of an unwanted after-born child. Yet abortion is distinguishable from infanticide only by the event of birth.… Now the separate, early and independent existence of fetal life has been conclusively proven by medical science. While it may be impossible for the State to insist on maintaining such a life under all circumstances, can it seriously be maintained that the Government is powerless to insist on protecting it from intentional destruction, absent danger to the mother’s life? …

[I]n the amicus brief filed by the American Association of University Women and other women’s organizations, the “sovereignty of the body” argument is made in a disguised and superficially more plausible form. These amici assert a woman’s right of “reproductive autonomy.” This they define as the “personal, constitutional right of a woman to determine the number and spacing of her children, and thus to determine whether to bear a particular child.…” Such a right, those amici argue, evolves inevitably from the recognition which this Court has afforded to those human interests “which relate to marriage, sex, the family and the raising of children.” … Parents may have a constitutional right to plan for the number and spacing of children. Still, that right cannot be extended to permit the destruction of a living human being absent a threat to the life of the mother carrying the unborn baby. Family planning, including the contraceptive relationship, is a matter between a man and a woman alone. The abortion relationship, on the other hand, is between the parents and the unborn child.…

… NRLC disputes the assertion that a woman enjoys any right of privacy, as yet undefined in American law, which vests in her alone the absolute authority to terminate a pregnancy for any reason whatsoever. No precedents of this Court have gone so far.…

The suggestion that abortion laws are peculiarly the product of a male-dominated government is especially inapposite in the case of Georgia, which enacted the abortion statute involved in this litigation in 1968. This amicus applauds the continuing process by which illegal discriminations against women have been removed. However, the claim that a woman should be free to destroy a human being whom she has conceived by voluntarily having sexual intercourse can only make sense if that human being be regarded as part of herself, a part which she may discard for her own good. However, at this point, the evolution of social doctrine favoring freedom for women collides squarely with modern scientific knowledge and with the medical and judicial recognition that the fetus in the womb is a living person. A woman should be left free to practice contraception; she should not be left free to commit feticide.

Roe v. Wade 410 U.S. 113 (1973). For amicus curiae briefs, see Linda Greenhouse and Reva B. Siegel, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (New York: Kaplan Publishing, 2011), 329–337, 352–359.

READING AND DISCUSSION QUESTIONS