Decided January 22, 1973 
MR. JUSTICE BLACKMUN delivered the opinion of the Court. 



... 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." 

With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like. 

This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, 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.

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 both logical and biological 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.

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. ...


To summarize and to repeat: 
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. 
2. The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this opinion, 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. 

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Roe v. Wade is a LEGAL ruling, not a moral analysis. It deals with the legal question of whether abortion, as a medical procedure, is constitutionally protected. Roe. v. Wade argues that, in the absence of explicit legal rights for fetuses, and with a Constitutional implication against the existence of such rights, the court (and state legislatures!) had no reason to treat abortion differently from other health procedures, particularly contraception.

Three key points:

  1. A fetus in not a PERSON under U.S. law. Persons have rights under the Constitution, and it is clear that the authors of the Constitution and its amendments did not regard fetuses as persons. In order to say that fetuses are persons under U.S. law, the Constitution would have to be amended to say so. Therefore the intentional killing of a fetus does not have same legal status as the killing of a person.

  2. States can create laws to protect citizens from harmful practices, and it can ban medical procedures that are harmful. When abortion was initially banned by most states, it was a dangerous procedure. Medically, it is now safer than childbirth. Therefore there is no longer a good reason for states to ban it as a medical practice.

  3. Since 1891, the U.S. has recognized a right to privacy in some "zones" of activity, which means that individuals can make decisions and act upon them without informing other people and without state interference. (Example: Your discussions with your lawyer are private and confidential.) The court has previously recognized that adult women have a privacy right when it comes to contraception and reproduction.

Conclusion: Because fetuses are not legally protected and abortion is a safe medical procedure protected by privacy rights, adult women have the right to receive an abortion in the first six months of pregnancy, and states can only interfere where the interference is appropriate to the woman's health.


Last updated May 23, 2011

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