Roe v. WadeRoe v. Wade, 410 U.S. 113 (1973)

Roe v. Wade, is significant in many ways. Perhaps less obvious is the fact that in deciding to hear the case in the first place, the Supreme Court was making the affirmative decision to turn the abortion issue into something worthy of federal jurisprudence. Put another way, if the Court had decided to not hear the case, policy issues aside, abortion would have remained a state issue, much like marriage has historically been, DOMA nonwithstanding. This is important because these are the types of issues that many argue that the states should be able to decide for themselves.

I decided to give a brief overview of the decision in light of the flurry of pre-abortion requirements and pro-life pronouncements that are being considered and have been passed in more than a handful of states. While the central "right" pronounced in Roe remains, its actual impact has been significantly eroded over time.

The Roe Decision

The Court found that a woman's right to choose an abortion is a fundamental right, protected by her privacy rights via the Ninth Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."), and Fourteenth Amendment Due Process rights as a protection of personal liberty.

The Court goes over an incredibly detailed history of abortion laws, and discusses the potential reasons for outlawing it: discouraging illicit sexual conduct (which amici argued is not a legitimate state interest), the fact that abortion used to be dangerous prior to the development of antisepsis, and the state's interest in potential life.

The framework of the decision is based on the three trimesters of pregnancy. In the first trimester, the decision is to be up to the medical judgment of the physician, in other words the mother's desire is the primary decisionmaker.  "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." "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." [emphasis added to highlight the potential problems recent proposals may run into with this part of the pronouncement]

In the second trimester, the state may regulate abortion in ways reasonably related to 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..."

The Court adopted the third trimester as the period where viability was feasible, meaning that the fetus is legally considered to be a life invoking the state's interest in protecting. Thus, "[i]n the third trimester, the state's interests take over, such that it can regulate and even prohibit abortion, except in cases where the mother's life is at risk. 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."