On January 22, 1973, the U.S. Supreme Court issued its 7-2 decision in Roe v. Wade, which recognized for the first time that the constitutional right to privacy encompasses a woman's right to decide to terminate her pregnancy. Striking down Texas's criminal ban on abortions not necessary to save a woman's life, this ruling marked a critical moment in this nation's history—an intersection of the demands of a burgeoning grassroots movement for women's liberation and the efforts of legal scholars and advocates seeking to use the courts to guarantee equal rights for all Americans. Written by Associate Justice Harry A. Blackmun, Roe v. Wade also reflects the perpetual tension in the law between the need for the U.S. Constitution to evolve to protect vulnerable members of our society and the need to adhere to precedent. Finally, the case—which had been argued before the Court twice prior to this decision—highlighted the intense divisions in the United States over the issue of abortion.
The Court's task "is to resolve the issue by constitutional measurement, free of emotion and of predilection," wrote Justice Blackmun. He dispassionately reviewed the history of abortion from ancient times, noting that "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." Noting that pregnancy and childbirth implicate a woman's physical and mental health, the majority specifically recognized the stigma of "unwed motherhood" and the difficulties of families unable to care for an additional child. However, the many tragedies caused by the criminalization of abortion—scores of women died from illegal or self-induced abortions; many others were left scarred and maimed—were not detailed in the Court's opinion.
As former counsel to the prestigious Mayo Clinic in Rochester, Minnesota, Justice Blackmun recognized the importance of positioning the right to choose abortion as, at its base, a decision resting on a physician's best medical judgment. As a result, the opinion detailed the stance of the American Medical Association—as an advocate for criminal abortion laws in the mid— to late nineteenth century and a supporter of liberalized abortion statutes beginning in the late 1960s—and cited the American Public Health Association's 1970 standards for abortion services. The majority opinion also noted that criminal abortion statutes often sought to protect pregnant women from the severe health risks of terminating a pregnancy and emphasized that medical advances made abortion a safer option for women, with mortality rates for early abortions as low or lower than for childbirth. Roe's companion case, Doe v. Bolton, which struck down a Georgia statute criminalizing most abortions, underscored the Court's emphasis on physicians, stating that Roe "sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand." In that ruling, the 7-2 majority opinion stated that a physician's professional judgment regarding when an abortion may be performed "may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient."
The majority opinion in Roe was careful to acknowledge the need to strike a balance between a pregnant woman's right to privacy and the state's interests in potential human life, stating that "[t]he pregnant woman cannot be isolated in her privacy." To that end, the Court established a framework under which the state's interest in potential life did not become "compelling" until after the point of viability—the point in pregnancy when the fetus is capable of independent survival; even then, protection of potential life could not be promoted at the expense of a woman's life or health. During the first trimester, restrictions on abortion (other than a requirement that the procedure be performed by a licensed physician) would be unconstitutional. After the first trimester but prior to viability, a state could only impose measures that represented the least restrictive means for protecting a woman's health. Moreover, the Court stated that the question of whether the fetus is a "person" is fraught with political and religious controversy, which should not be decided by the judiciary.
The legal foundations for the Roe decision were formed in Supreme Court decisions dating from the 1890s. Although the term right to privacy does not exist within the text of the U.S. Constitution, the Court had long recognized that citizens have a fundamental right against governmental intrusion in such intimate family matters as procreation, child rearing, and marriage. The Court relied particularly on the Fourteenth Amendment's explicit guarantee of individual liberty, which it has repeatedly found to encompass privacy. In the mid-1960s, a 7-2 majority of the Supreme Court recognized that this "zone of privacy" protects the right of married couples to use contraceptives. The year before Roe was decided, the Justices extended this protection to unmarried couples and individuals, stating, "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Rather than creating a new affirmative right, Justice Blackmun drew on the historical constitutional tradition of limited government to protect "a woman's decision whether or not to terminate her pregnancy." To find otherwise would have signaled a radical departure from legal precedent.
Roe by no means put to rest the political conflict over abortion and the judicial debate over the scope and contours of constitutional protection for individual liberties. However, the decision heralded a new era and forever changed the face of this nation. Although the language in Roe did not tout the decision's truly momentous nature, the Supreme Court's ruling nearly twenty years later to reaffirm the landmark case stated it clearly: "[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." Indeed, as Justice Blackmun himself stated upon his retirement from the High Court, Roe was "a step that had to be taken as we go down the road toward the full emancipation of women."
Janet Benshoof
See also
Abortion;
Privacy Rights;
Pro-Choice and Antiabortion Movements;
Reproductive Rights.
