The front page of the New York Times on January 23, 1973 was nothing if not eventful.
The country learned of two major events that morning: Former President Lyndon B. Johnson died from a heart attack and the U.S. Supreme Court ruled in favor of Jane Roe of Dallas County, Texas.
39 years ago today, on January 22, 1973, the Supreme Court in a 7-2 decision ruled that Texas’s criminal abortion statute, which made abortion illegal except “for the purpose of saving the life of a mother,” violated the Due Process Clause of the 14th Amendment, effectively legalizing abortion during the first trimester of a woman’s pregnancy.
In March 1970, Jane Roe argued the state’s abortion statute was “unconstitutionally vague” (two other complaints were filed along with Roe’s – from a physician and a married couple – but both were later dismissed).
Justice Harry Blackmun authored the Roe v. Wade opinion. While I urge you to read Roe v. Wade in its entirety if you haven’t, here are a few key points made by Blackmun:
Broader rights in earlier times: Blackmun wrote that abortion was a more acceptable practice during the adoption of the Constitution and throughout most of the 19th century compared to the time of the Roe v. Wade opinion.
“[…] a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.”
The abortion procedure is no longer dangerous: A common argument against abortion was that the procedure was too dangerous and placed a woman in danger. Therefore, state laws criminalizing abortion argued state regulation existed to protect a woman’s maternal health. The Roe v. Wade decision states modern medical techniques made abortions safer than they had been in the past, writing that abortions performed before the end of the first trimester are “relatively safe.” Therefore, Blackmun wrote, the state’s concern for protecting women from a dangerous medical procedure had “largely disappeared.”
The right to privacy includes a woman’s decision to terminate a pregnancy: Blackmun wrote that, although the right to privacy is not explicitly referenced in the Constitution, a multitude of previous decisions referencing a right to privacy made it “broad enough to encompass a woman’s decision on whether or not to terminate a pregnancy.” He writes that the state does indeed have a “compelling state interest” in regulating abortion – “safeguarding health, in maintaining medical standards, and in protecting potential life” – and that the right to privacy is not absolute. The decision rules that the state has a compelling interest at “viability” (24-28 weeks into the pregnancy) and can regulate abortion after the end of the first trimester “in ways that are reasonably related to maternal health”.
The Constitution does not recognize an unborn child as a person: The Court ruled that an unborn child is not a “person” under the Constitution, specifically the 14th Amendment.
“In short, the unborn have never been recognized in the law as persons in the whole sense.”
While they make this assertion, they explicitly write that they will not answer the question of whether or not life begins at conception.
The decision:
“…for the period of pregnancy prior to this `compelling’ point [at approximately the end of the first trimester], 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. […]
Measured against these standards, Art. 1196 of the Texas Penal Code, 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.”
The dissent: Justice Rehnquist wrote the dissenting opinion. He disagreed with the Court’s lack of restrictions on a woman during the first trimester of her pregnancy and argued that the right to privacy was not applicable 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…”
Why choice still matters today:
Read the rest here.
