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Roe v. Wade
Supreme Court of the United States
1971
This case presents constitutional challenges to state criminal abortion legislation. The issue is sensitive and emotional due to of the vigorous opposing view.
Roe (a pseudonym), a single woman who was residing in Texas, instituted this federal action against the District Attorney... She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
Roe purported to sue "on behalf of herself and all other women" similarly situated.
Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The principal thrust of Roe’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. Roe would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras by the
Ninth Amendment,
VI
Restrictive criminal abortion 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 in the latter half of the 19th century.
VII
Three reasons have been advanced to explain the criminal abortion laws in the 19th century and to justify their continued existence.
Abortion mortality was high.
Thus, it has been argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman.
Modern medical techniques have altered this situation.
Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure has largely disappeared. Of course, important state interests in the areas of health and medical standards remain.
The third reason is the 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.
On the other hand, proponents of abortion point out that in many States, including Texas, by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.
VIII
The Constitution does not explicitly mention any right of privacy.
Union Pacific R. Co. v. Botsford, (1891)
In varying contexts, the Court or individual Justices have found at least the roots of that right.
First Amendment,
Stanley v. Georgia, 394 U.S. (1969)
Fourth and Fifth Amendments
Terry v. Ohio, 392 U.S. (1968),
Katz v. United States, 389 U.S. (1967)
Boyd v. United States, 116 U.S. (1886)
see
Olmstead v. United States, 277 U.S. (1928) (Brandeis, J., dissenting)
penumbras of the Bill of Rights,
Griswold v. Connecticut, 381 U.S.
Ninth Amendment, (Goldberg, J., concurring)
Fourteenth Amendment,
see
Meyer v. Nebraska, 262 U.S. (1923).
They also make it clear that the right has some extension to activities relating to
marriage, Loving v. Virginia, (1967)
procreation, Skinner v. Oklahoma, (1942)
contraception, Eisenstadt v. Baird, 405 U.S. (1972)
These decisions make it clear that only personal rights that can be deemed "fundamental"
marriage
Loving v. Virginia, 388 U.S. 1, 12 (1967)
procreation,
Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942)
contraception
Eisenstadt v. Baird, 405 U.S. (1972) (WHITE, J., concurring in result)
family relationships
Prince v. Massachusetts, 321 U.S. (1944)
child rearing and education
Pierce v. Society of Sisters, 268 U.S. (1925),
Meyer v. Nebraska, supra.
This right of privacy is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
The claim asserted that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy. However, the Court has refused to recognize an unlimited right of this kind in the past.
Jacobson v. Massachusetts, 197 U.S. (1905) (vaccination)
Buck v. Bell, 274 U.S. (1927) (sterilization)
The right of personal privacy includes the abortion decision, but this right is not unqualified and must be considered against important state interests in regulation.
A majority have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights.
Although the results are divided, most of courts have agreed that the right of privacy is broad enough to cover the abortion decision.
The right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.
Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest,"
Kramer v. Union Free School District, 395 U.S. 621, 627 (1969)
Shapiro v. Thompson, 394 U.S. 618, 634 (1969)
Sherbert v. Verner, 374 U.S. 398, 406 (1963)
and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.
Griswold v. Connecticut, 381 U.S., at 485
Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964)
Cantwell v. Connecticut, 310 U.S. 296, 307-308 (1940)
Eisenstadt v. Baird, 405 U.S., (WHITE, J., concurring in result).
IX
The Wade presented "several compelling justifications.
A. the fetus is a "person" within the language and meaning of the Fourteenth Amendment.
The Constitution does not define "person" in so many words.
None indicates, with any assurance, that it has any possible pre-natal application.
All this, together with 19th century prevailing legal abortion practices, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.
B. The pregnant woman cannot be isolated in her privacy.
She carries an embryo and, later, a fetus. The situation is inherently different from Marital intimacy.
As mentioned above, it is reasonable for a State to decide that, at some point, the woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth, or in narrow exception when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick. In short, the unborn have never been recognized in the law as persons in the whole sense.
X
Texas may override the rights of the pregnant woman that are at stake. 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 nonresident 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."
The "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester.
Examples of permissible state regulation
---qualifications of the person who is to perform the abortion
---licensure of that person.
---facility in which the procedure is to be performed,
---licensing of the facility, and the like.
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 logical 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.
XI
Summarize
1. 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 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.
A state may define the term "physician" to mean only a physician currently licensed by the state and may proscribe any abortion by a person who is not a physician as so defined.
STEWART, concurring.
The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights.
As Mr. Justice Harlan once wrote: "The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
Justice Frankfurter, "Great concepts like . . . 'liberty' . . . were purposely left to gather meaning from experience.
Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.
Lovingv. Virginia, 388 U.S. 1, 12
Griswold v. Connecticut, supra
Pierce v. Society of Sisters, supra
Meyer v. Nebraska, supra.
See also Prince v. Massachusetts, 321 U.S. 158
Skinner v. Oklahoma, 316 U.S. 535, 541.
Eisenstadt v. Baird, 405 U.S. (1972) we recognized "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."
That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.
"Certainly, the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the
right to send a child to private school
Pierce v. Society of Sisters, 268 U.S. 510 (1925),
right to teach a foreign language
Meyer v. Nebraska, 262 U.S. 390 (1923)."
Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972).
Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.
REHNQUIST, dissenting.
I
She may have been in her last trimester of pregnancy as of the date the complaint was filed... Nonetheless, the Court uses her complaint against the Texas statute as a fulcrum for deciding that States may impose virtually no restrictions on medical abortions performed during the first trimester of pregnancy.
II
A transaction resulting in an operation is not "private" ...
Nor is the "privacy"here protected by the Fourth Amendment
Katz v. United States, 389 U.S. 347 (1967).
I agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the "liberty" embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely ...
The Court eschews the history of the Fourteenth Amendment in its reliance on the "compelling state interest" test.
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 179 (1972) (dissenting opinion).
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.
다수의견은 수정14조 due process문제에 수정 14조 Equal Protection Clause 테스트인 compelling state interest 적용 함으로서 혼란을 야기시켰습니다.
The decision here ... partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.
States have had restrictions on abortions for at least a century is a strong indication that abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental,"
Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
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 ...
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.
By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted ... limiting abortion.
Texas statute first enacted in 1857 and "has remained substantially unchanged to the present time."
III
Texas has an option to Singling out rather than struct down
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