Post a comment on this essay Read other users’ comments Print this essay New Essays | Popular Essays | Submit an Essay Index: Social Issues: Abortion Abortion In Roe et al. v. Wade District Attorney of Dallas County (1973), one of the most controversial cases in recent history, the U.S. Supreme Court struck down all state laws that limit a woman’s right to an abortion during the first three months of pregnancy. Justices Rehnquist and White dissented. Mr.
Justice Blackmun delivered the opinion of the Court… This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue. We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigourous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.
One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion… The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State’s Penal Code. These make it a crime to procure an abortion, as therein defined, or to attempt one, except with respect to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother. Similar statutes are in existence in a majority of the States. Texas first enacted a criminal abortion statute in 1854.
Texas Laws 1854, c. 49, Sec. 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time… Jane Roe, a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county.
She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes. Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion performed by a competent, licensed physician, under safe, clinical conditions; that she was unable to get a legal abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. 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. By an amendment to her complaint Roe purported to sue on behalf of herself and all other women similarly situated… We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that personal stake in the outcome of the controversy, Baker v.
Carr, 369 U.S. 186, 204 (1962), that insures that the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution,.. The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.. But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied.
Our law should not be that rigid… We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot… The principal thrust of appellant’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. Appellant 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, see Griswold v. Connecticut, 381 U.S.
479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972);.. Before addressing this claim, we feel it desirable briefly to survey,.. the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws… It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those 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 effected, for the most part, in the latter half of the 19th century…
It is undisputed that at common law, abortion performed before quickening-the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy-was not an indictable offense… In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough’s Act that related to a woman quick with child. The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860…
Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother… It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century.
Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy… The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), 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.
In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394, U.S. 557, 564 (1969); in the Fourth and Fifth Amendments,.. in the penumbras of the Bill of Rights,.. in the Ninth Amendment,.. or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment,..
These decisions make it clear that only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty,.. are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage,.. procreation,.. contraception,.. family relationships,..
and child rearing and education,.. This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, 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 …