ROE v. WADE ~ KEY
PASSAGES, FOLLOWED BY AN OUTLINE
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
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
(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.
~ ~ ~ ~ ~ ~ ~ ~ ~
OUTLINE OF KEY POINTS
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:
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.
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.
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.