Roe v. Wade (1973)
Abortion, Right to Privacy
“
. . . “We … acknowledge our awareness of the sensitive
and emotional nature of the abortion controversy, of the
vigorous opposing views, even among physicians, and of
the deep and seemingly absolute convictions that the
subject inspires.”
— Justice Blackmun (1973), majority opinion in Roe v. Wade
Jane Roe was an unmarried and pregnant Texas resident in 1970. Texas law made it a
felony to abort a fetus unless “on medical advice for the purpose of saving the life of
the mother.” Roe filed suit against Wade, the district attorney of Dallas County,
contesting the statue on the grounds that it violated the guarantee of personal liberty
and the right to privacy implicitly guaranteed in the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments. In deciding for Roe, the Supreme Court invalidated any
state laws that prohibited first trimester abortions.
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Roe v. Wade (1973)
BACKGROUND
BACKGROUND
Roe v. Wade (1973)
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Roe v. Wade (1973)
BACKGROUND
Background Summary & Questions (•••)
In the latter part of the nineteenth century and the first half of the twentieth century, most states
adopted laws strictly regulating the availability of abortions. Many states outlawed abortion except
in cases where the mother‟s life was in jeopardy. Illegal abortions were widespread and often
dangerous for women who undertook them because they were performed in unsanitary conditions.
The sexual revolution that began in the second half of the twentieth century resulted in public
pressure to ease abortion laws. As some states began to relax abortion restrictions, some women
found it relatively easy to travel to a state where the laws were less restrictive or where a doctor was
willing to certify medical necessity.
However, poor women often could not travel outside their state to receive treatment, raising
questions of equality. Statutes were often vague, so that doctors did not really know whether they
were committing a felony by providing an abortion. In addition, government interference in sexual
matters was beginning to be called into question by a changing conception of privacy.
There is no right to privacy explicitly guaranteed in the Constitution. However, the Supreme Court
has long acknowledged some right to privacy. In earlier rulings about privacy, the Supreme Court
seemed to connect the right to privacy to location, with a particular emphasis on a person‟s home.
This association stemmed from notions of property rights and centered on people‟s personal
property.
However, in the second half of the last century, the Court‟s position on privacy came to be seen as a
right connected to a person, not to a location. The change in conceptions of privacy can be seen
clearly in the landmark decision of Griswold v. Connecticut (1965). The Supreme Court ruled that a
Connecticut statute outlawing access to contraception violated the U.S. Constitution because it
invaded the privacy of married couples to make decisions about their families. In that ruling, the
Court identified privacy as a transcendent value, fundamental to the American way of life, and to the
other basic rights outlined in the Bill of Rights. Though the decision focused on the fundamental
nature of privacy associated with marriage, the case set the stage for the Court to proceed further in
its protection. Seven years later, the Court decided a case that extended access to contraception to
unmarried persons, as well.
While the word privacy does not appear in the Constitution, the argument for protecting privacy is
based on the Due Process Clause of the 14th Amendment. That clause has been found to protect
certain fundamental rights against government action.
Jane Roe, a pseudonym used to protect her identity, was an unmarried and pregnant Texas resident
in 1970. She wanted to have an abortion, but Texas abortion law made it a felony to abort a fetus
unless “on medical advice for the purpose of saving the life of the mother.” Roe filed suit against
Wade, the district attorney of Dallas County, Texas to challenge the statute outlawing abortion.
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Roe v. Wade (1973)
BACKGROUND
Roe contested the statute on the grounds that it violated the Fourteenth Amendment mandating
equal protection of the laws and the guarantee of personal liberty, and a mother‟s right to privacy
implicitly guaranteed in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The state
argued that “the right to life of the unborn child is superior to the right to privacy of the mother.”
The state also argued that in previous decisions where the Court protected individual or marital
privacy, that right was not absolute. The state argued that this is a policy matter best left to the
legislature to decide. A three-judge federal district court ruled the Texas abortion law
unconstitutional, and the case was then appealed directly to the U.S. Supreme Court.
Questions to Consider
1. What was the Texas law at issue here?
2. How did the right to privacy change over the course of the last half-century?
3. Do you believe that privacy is a fundamental right, necessary to secure the other rights in the
Bill of Rights? Why or why not?
4. Do the Supreme Court‟s decisions in the contraception cases prohibit states from outlawing
abortion? Explain.
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Roe v. Wade (1973)
BACKGROUND
Background Summary & Questions (••)
As the sexual revolution took hold in the second half of the twentieth century, women faced great
difficulty getting abortions. At the time, many states had outlawed abortion except in cases where
the mother‟s life was in danger. Illegal abortions were often dangerous because they were
performed in unsanitary conditions. As people‟s ideas about sexual freedom changed, women
gained greater access to birth control measures, but public pressure to change abortion laws also
increased. A number of states relaxed their abortion laws so that women living in states that
outlawed abortion could travel to another state for an abortion.
However, poor women often could not afford to travel outside their state to receive treatment,
raising questions of equality. Laws were often vague, so that doctors did not know whether they
were breaking the law by providing an abortion. In addition, some people began to question
whether the government should be able to interfere with people‟s decisions in sexual matters. They
believed that laws banning birth control and abortion were an invasion of privacy.
There is no right to privacy specifically guaranteed in the Constitution. However, the Supreme
Court has long acknowledged some right to privacy, but usually associated that right with a
particular location, like a person‟s home. However, during the 1960s, the Court‟s position on
privacy changed so that it was connected with a person, not a location.
In the case of Griswold v. Connecticut (1965), the Supreme Court ruled that a Connecticut law
outlawing access to contraception violated the U.S. Constitution because it invaded the privacy of
married couples to make decisions about their families. In that ruling, the Court identified privacy
as a fundamental value for the American way of life, and for the other basic rights outlined in the
Bill of Rights.
Jane Roe, (not her real name), was an unmarried and pregnant Texas resident in 1970. She wanted
to have an abortion, but Texas abortion law made it a felony to abort a fetus unless “on medical
advice for the purpose of saving the life of the mother.” Roe filed suit against Wade, the district
attorney of Dallas County, Texas to challenge the law outlawing abortion.
Roe said that the law violated the Fourteenth Amendment, which provides equal protection of the
laws and a guarantee of personal liberty, and a woman‟s right to privacy implicitly guaranteed in the
First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The state argued that “the right to life of
the unborn child is superior to the right to privacy of the mother.” The state also argued that in
previous decisions where the Court protected individual or marital privacy, that right was not
absolute. The state argued that this is a policy matter best left to the legislature to decide. A threejudge federal district court ruled the Texas abortion law unconstitutional, and the case was then
appealed directly to the U.S. Supreme Court.
Questions to Consider
1. What was the Texas law at issue in this case?
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BACKGROUND
2. Do you think a right to privacy includes 1) a right to be private in a place 2) a right to
establish a certain relationship with a married partner, 3) and/or a right to privacy in most, if
not all, of your personal decisions? Explain your answer.
3. What did the Court state about the right to privacy in Griswold?
4. Do you believe that privacy is a fundamental value, necessary to secure the other rights in
the Bill of Rights? Why or why not?
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Roe v. Wade (1973)
BACKGROUND
Background Summary & Questions (•)
In the second half of the twentieth century, people‟s ideas about sexual relationships began to
change and become more liberal. Women could get birth control more easily and some states made
it easier to get abortions.
However, these changes also created problems. Some poor women who lived in a state that
outlawed abortion could not travel to get treatment. Some people said that this was not fair.
Abortion laws were sometimes vague, so that doctors did not know when they were breaking the
law. Also, some people said that the government should not tell people what to do in sexual
relations. They said this was an invasion of privacy.
The U.S. Constitution does not say clearly that there is a right to privacy. However, the Supreme
Court had said in other cases that a person has a right to privacy in particular places, like the home.
In the case of Griswold v. Connecticut (1965), the Supreme Court said that Connecticut could not
stop married couples from getting birth control. The Court said that families have a right to privacy
in their decisions about having children and sexual relationships. The Court said that privacy was a
basic value that is important for all the rights in the Bill of Rights.
Jane Roe (not her real name) was unmarried and pregnant and lived in Texas. She wanted to have
an abortion, but according to Texas law she could not have an abortion unless her life was in danger.
Roe challenged the law by suing Wade, the district attorney where she lived.
Roe argued that she had a right to privacy and should be able to decide whether to have an abortion
or not. She argued that the right to privacy comes from combining several other rights listed in the
Bill of Rights. The state argued that “the right to life of the unborn child is superior to the right to
privacy of the mother.” The state also argued that this is a topic that should be left to the
legislatures to decide how to handle. A three-judge federal district court ruled the Texas abortion
law unconstitutional. The case was then appealed to the U.S. Supreme Court.
Questions to Consider
1.
What Texas law was Roe challenging
2. What were two problems with abortion laws?
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3.
Where does the constitution state that you have a right to privacy?
4. What arguments did each side make?
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BACKGROUND
Roe v. Wade (1973)
Important Vocabulary (•••/••)
liberal
Define:
Use in a sentence:
abortion(s)
Define:
Use in a sentence:
vague
Define:
Use in a sentence:
privacy
Define:
Use in a sentence:
appealed
Define:
Use in a sentence:
constitutional
Define:
Use in a sentence:
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BACKGROUND
Roe v. Wade (1973)
BACKGROUND
Important Vocabulary (•)
As you read the background summary of the Roe case, look for the important vocabulary words that
are italicized. When you come to one of those terms, look at this page for its definition. Then,
check to see if you understand the definition by either sketching a picture of what you think it
means, or by putting it in your own words. Feel free to add terms from the reading that you would
like to practice.
liberal
Definition: lacking restraint; not bound by traditional forms
Express this term in your own words or in a drawing:
abortion(s)
Definition: a premature end to a pregnancy; may result from a miscarriage or a medical
procedure
Express this term in your own words or in a drawing:
vague
Definition: not clearly defined; not sharply outlined
Express this term in your own words or in a drawing:
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BACKGROUND
privacy
Definition: the state of being left alone; freedom from unauthorized intrusion
Express this term in your own words or in a drawing:
appealed
Definition: to take a lower court's decision to a higher court for review
Express this term in your own words or in a drawing:
constitutional
Definition: being in accordance with or authorized by the constitution of a state or society
Express this term in your own words or in a drawing:
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Roe v. Wade (1973)
BACKGROUND
How the Case Moved Through the Court System
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Roe v. Wade (1973)
ACTIVITIES
ACTIVITIES
Roe v. Wade (1973)
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Roe v. Wade (1973)
ACTIVITIES
Classifying Arguments
Directions
The following is a list of arguments in the Roe v. Wade court case. Read through each argument and
decide whether it supports Roe‟s side (R), against the Texas law restricting abortion; Wade‟s side
(W), in favor of the Texas law restricting abortion; both sides (BOTH); or neither side (N).
_______ The Fourteenth Amendment says "No State shall…deny to any person within its
jurisdiction the equal protection of the laws." Having different abortion laws in various states keeps
poor women in states with restrictive laws from having access to abortions, while wealthier women
can travel elsewhere to have a legal and safe abortion.
_______ The Fourteenth Amendment says "No State shall…deny to any person within its
jurisdiction the equal protection of the laws." If a fetus is a person from conception, then the
Fourteenth Amendment guarantees equal protection of the laws. The life of the fetus must be
considered as having equal weight with the life of the mother. Thus the state has a compelling
interest in protecting the life of the fetus.
_______ The Fourteenth Amendment says "No State shall…deprive any person of life, liberty, or
property, without due process of law…." This clause has been interpreted in some cases to
guarantee substantive due process. This means that the government cannot infringe on liberty
without proving a compelling interest and any law that infringes on liberty has to be very narrowly
crafted. Any law that infringes on a protected liberty interest, in this interpretation of the
Fourteenth Amendment, is presumed to be unconstitutional and the State has to jump a high hurdle
to prove otherwise.
_______ The Texas abortion law declaring that a woman cannot have an abortion unless her life is
in danger is too vague. Doctors may not know precisely when they are breaking the law when
performing an abortion.
_______ The First, Fourth, and Fifth Amendments apply to the States. Though these
Amendments do not mention the right of privacy, privacy is fundamental to the exercise of the
rights that are explicitly mentioned. As such, privacy is protected by the penumbras of the First,
Fourth, and Fifth Amendments:
_______ The First Amendment says "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition the Government for a redress of
grievances."
_______ The Fourth Amendment says "The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…."
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ACTIVITIES
_______ The Fifth Amendment says "No person shall…be compelled in any criminal case to be a
witness against himself…."
_______ The Ninth Amendment says "The enumeration in the Constitution of certain rights, shall
not be construed to deny or disparage others retained by the people." The Framers did not want the
Bill of Rights to be an all-inclusive list of the rights that people in the United States have. The Ninth
Amendment says that people retain other rights that are not explicitly listed in the Constitution.
Among these rights may be the right to privacy, which would include freedom of choice in the basic
decisions of one‟s life.
_______ It has long been an acknowledged role of the state to safeguard health and regulate
medical practices.
_______ The U.S. Constitution does not explicitly mention any right of privacy.
_______ For the U.S. Supreme Court to determine when, where, and how an abortion should
occur would be to overstep its authority as a court. It is the job of state legislatures to determine
how abortions should be regulated, not federal courts.
_______ The use of the word “person” in the U.S. Constitution as it was drafted does not include a
fetus. Thus, the Fourteenth Amendment cannot be construed to protect the unborn.
_______ As a pregnancy progresses, the interest of the state in protecting the health of the mother
and the life of the fetus becomes more “compelling.”
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Roe v. Wade (1973)
ACTIVITIES
Is Privacy Protected in the Constitution?
Directions
The following is the text of the Bill of Rights, the first ten amendments to the U.S. Constitution.
Read each amendment and record specific examples of rights that could be seen as privacy-related
rights.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment II
A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.
Amendment III
No Soldier shall, in time of peace be quartered in any house, without the consent of the
Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public danger; nor shall any
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Roe v. Wade (1973)
ACTIVITIES
person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be taken for
public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the Assistance of
Counsel for his defense.
Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.
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ACTIVITIES
Cartoon Analysis
Directions
Analyze the cartoons below in terms of its meaning related to abortion laws and Roe v. Wade.
1. What do you see in the cartoon? Make a list. Include objects, people, and any characteristics
that seem to be exaggerated.
2. Which of the items on the list from Question 1 are symbols? What does each symbol stand
for?
3. What is happening in the cartoon?
4.
What is the cartoonist's message?
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5. Do you agree or disagree with the message? Explain your answer.
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ACTIVITIES
Roe v. Wade (1973)
ACTIVITIES
Cartoon 1
Cartoon 2
These cartoons are used with permission from Cagle Cartoons, http://www.caglecartoons.com/
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Roe v. Wade (1973)
ACTIVITIES
Precedent and Stare Decisis
Part One: Personal Reflection
1. Think of a time when a parent, guardian, or teacher made a decision about something based on a
similar situation in the past. (At this point, don‟t write anything down. Just think quietly.)
2. Now think about whether his or her decision was fair. Why or why not?
3. When your teacher asks, you may volunteer to tell about the example you thought of and to give
your opinion about whether the situation was handled fairly. (Please do not name names.)
4. Now think of a time when you believe your parent, guardian, or teacher should not have applied
the same old rules or reasons to a new situation. Was his or her response fair? Why or why not?
5. Finally, think about a time when your parent, guardian, or teacher seemed to ignore his or her
own previous decision. Did that seem fair? Why or why not?
Part Two: Class Discussion
Answer these questions with other students in your class:
1. What are the benefits and risks of sticking by the known rules?
2. What are the benefits and risks of changing the rules for new situations?
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ACTIVITIES
We have just been thinking and talking about something very similar to the term precedent, a court
decision that guides future cases with similar questions.
The Supreme Court justices wrestle with the issue of precedent on a daily basis, knowing that their
decisions will affect not just the people in a particular case, but potentially millions of other
Americans who could be in similar situations in the future. Their questions, like those in our
reflection activity, are typically about when precedents should be honored and when they should be
reversed. Different justices often have different views on this -- some even change their views over
time.
The term stare decisis is a legal term from Latin that means "to stand by things decided." This
means to apply precedent.
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ACTIVITIES
Part Three: What The Justices Think About Precedent And Stare
Decisis
You will be working with two other students on this assignment.
Divide up the quotes below so you each have the same number of quotes to work with. (If
necessary, you can double up and have two of you working on the same quote.)
Start by reading your quotes silently. As you read them, underline passages you think are
particularly important. Circle words or passages that you have questions about. Then try to
put it in your own words or summarize it.
When all three of you finished reading the quotes, explain them to each other and then
work together to answer the questions at the bottom of the page.
Quote #1
Justices Sandra Day O‟Conner and Stephen G. Breyer in a taped interview with students
participating in a question and answer session. When asked about what might influence the justices
to overturn a precedent, Justice O‟Connor said:
“Well I think you have to be able to persuade at least five members of this nine-member Court that
an earlier judgment and opinion decided by this Court is now clearly wrong. That is possible to do.
We can be persuaded at times that something we decided earlier has become, over time, no longer
defensible.
And the most clear big example of that was in Brown v. Board of Education when the Supreme
Court decided to overrule the old Plessy v. Ferguson principle that you could have separate public
facilities for people based on race provided they were roughly the same. You know, the same
school, one for people of the black race, one for people of the white race. That‟s what Plessy said
was all right. The members of this Court unanimously concluded that just was not valid and it
overturned it, [Plessy.]
So what standard is required? It‟s just a standard of persuading at least five members of the Court
that an earlier precedent is clearly wrong and shouldn‟t remain the law of the nation.”
Summary:
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ACTIVITIES
Quote #2
Justices Sandra Day O‟Conner and Stephen G. Breyer in a taped interview with students
participating in a question and answer session. After Justice O'Connor's answer about what might
influence the justices to overturn a precedent, Justice Breyer added:
“That last phrase [persuading at least five members of the Court that an earlier precedent is clearly
wrong and shouldn‟t remain the law of the nation] is very important. Every one of us understands
that if you change the law too often, even when it was wrong before, people cannot live their lives.
They can‟t plan how to live; they can‟t plan their societies. So no one thinks just because a case is
wrong that you are going to overturn it. They have to both think it was wrong and think it‟s harmful
and causing a lot of trouble.
Now, if you said never overturn a case, we‟d still live in a society that had racial segregation. That
would be terrible. So, of course, sometimes you have to overturn a case. But five people [justices]
have to agree it was wrong then and it‟s wrong now and it‟s causing a lot of harm to the point where
even though people have to plan their lives, we better get rid of it. That happens very rarely.”
Summary:
Quote #3
John Roberts at his United States Senate confirmation hearing, September 2005:
“… the principles of stare decisis look at a number of factors. Settled expectations is one of them…
Whether or not particular precedents have proved to be unworkable is another consideration on the
other side …I do think it is a jolt to the legal system when you overrule a precedent. Precedent
plays an important role in promoting stability and evenhandedness.
Summary:
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ACTIVITIES
Quote #4
Stephen Breyer, writing for the Court in Randall v. Sorrell, the Vermont campaign finance reform
decision, 2006:
“The Court has often recognized the „fundamental importance of stare decisis, the basic legal
principle that commands judicial respect for a court‟s earlier decisions and the rules of law they
embody. The court has pointed out that stare decisis „promotes the evenhanded, predictable and
consistent development of legal principles, fosters reliance on judicial decisions, and contributes to
the actual and perceived integrity of the judicial process.‟
Stare decisis thereby avoids the instability and unfairness that accompany disruption of settled legal
expectations. For this reason, the rule of law demands that adhering to our prior case law be the
norm. Departure from precedent is exceptional and requires special justification.”
Summary:
QUESTIONS TO CONSIDER
1. Answer these with the two other students in your group.
2. Based on what you read, why is adhering to precedent (or stare decisis) important?
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ACTIVITIES
3. Based on what you read, what do you think would be acceptable reasons for reversing an
existing precedent?
4. Given how divided the country is on the issue of abortion, in your opinion, is that a good
reason to stick to precedent or to consider overturning the precedent it established. (This
question is not asking whether you like the Roe decision or not, just whether the popularity
of a decision should be considered when a Court decides whether to reconsider an
established precedent.)
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ACTIVITIES
The Casey Case: Roe Revisited?
In 1992, the Supreme Court decided the case of Planned Parenthood of Southern Pennsylvania v.
Casey. At issue were five provisions of the Pennsylvania Abortion Control Act of 1982, which
required that a woman seeking an abortion give her informed consent prior to the procedure;
specified that she be provided with certain information at least 24 hours before the abortion is
performed; mandated the informed consent of one parent for a minor to obtain an abortion;
required that a married woman seeking an abortion notify her husband; and imposed certain
reporting requirements on facilities providing abortion services. Because the make-up of the Court
had changed and become more conservative since Roe was first decided, many people believed that
the Court might use this case to overturn Roe altogether.
In a 5-4 decision the Court reaffirmed its commitment to Roe and to the basic right of a woman to
have an abortion under certain circumstances. Justice O‟Connor, who authored the majority
opinion, argued that stare decisis required the Court to not overturn Roe. Stare decisis is the general
principal that when a point has been settled by decision, it forms a precedent which is not afterwards
to be departed from. (However, the doctrine of stare decisis is not always relied upon. From time to
time, the Court overrules earlier precedent that the Justices believe had been wrongly decided.)
O‟Connor argued that a generation of women had come to depend on the right to an abortion.
Nonetheless, certain restrictions were upheld.
As a result of the case, a woman continues to have a right to an abortion before the fetus is viable
(before the fetus could live independently outside of the mother‟s womb). The Court held that
states cannot prohibit abortion prior to viability. However, the states can regulate abortions before
viability as long as the regulation does not place an “undue burden” on the access to abortion. After
fetal viability, however, states have increased power to restrict the availability of abortions. The state
maintains the power to restrict some abortions because of its legitimate interest in protecting the
health of the woman and the potential life of the fetus. The Court stated that a regulation places an
“undue burden” on access to abortion when “a state regulation has the purpose or effect of placing
a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” However,
the Court did not define what constitutes a “substantial obstacle.” Specifically in Casey, the Court
upheld the 24 hour waiting period, but found the spousal notification requirement to be
unconstitutional.
States can pass some laws that regulate abortion, but these laws cannot place a “substantial obstacle
in the path of a woman seeking an abortion.” However, the Court did not define precisely what
constitutes a substantial obstacle. The Casey decision held that regulations were constitutional if
they did not place an “undue burden” on obtaining an abortion. For example, the decision allowed
a regulation that requires a woman to give “informed consent” at least 24 hours before the abortion
takes place.
(Visit http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10345 to read
the full Casey opinion)
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ACTIVITIES
Questions to Consider
1. What is stare decisis and how was it used to uphold a woman‟s right to an abortion that was
first recognized in Roe v. Wade?
2. The original decision in Roe v. Wade used a trimester test (i.e., abortions were legal in the
first six months of pregnancy) but the Casey court adopted a viability test. What are the
differences between these two tests? What are the potential advantages and problems with
each test?
3. Although Casey did not overturn the basic holding of Roe, it did modify it. Did Casey
generally expand the right to an abortion recognized in Roe or allow for greater restrictions
on that right? Explain your answer.
4. Under the undue burden test adopted by Casey, which of the following would place an
undue burden on the right to an abortion. Give reasons for each answer.
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ACTIVITIES
A state law requires the father of the baby to provide written consent before his wife
is able to obtain an abortion.
A poor woman is unable to obtain an abortion because her state does not provide
public funds to cover such a medical procedure.
A state law requires 24-hour waiting period between the time of a woman‟s formal
decision to have an abortion and the actual procedure.
A state law requires a pregnant minor to obtain written consent from both parents in
order to obtain an abortion.
A state law requires a pregnant minor to obtain written consent from one parent or a
judge in order to obtain an abortion.
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The Legacy of Roe: The Debate Continues
The 1973 Roe decision did not end the debate over abortion. In many ways, the decision actually
intensified the debate, making it a national issue rather than a state issue. Abortion is an extremely
controversial issue that involves people‟s strongly held beliefs about religion, morality, life, the role
of the government, and the right to bodily integrity and privacy. Each year, on the anniversary of
the decision (January 22, 1973), pro-life and pro-choice supporters stage protest rallies in front of
the Supreme Court.
Abortion has become an important issue in elections and in judicial nominations. Depending on
who is president and which party controls Congress, abortion counseling at federally funded clinics
has sometimes been permitted and sometimes been prohibited. In congressional districts and U.S.
Senate elections where the public is closely divided on this issue, candidates are often reluctant to
take a strong stand either for or against abortion rights for fear of alienating an important segment
of voters. And as long as the public believes that the U.S. Supreme Court is closely divided over
abortion issues, advocacy groups on both sides will closely monitor presidential nominations to the
Supreme Court and even to lower federal courts.
In addition to political arenas, confrontations over abortions take place on a regular basis in many
communities outside of clinics that offer abortion services. Those who are against abortion often
stage protests outside of clinics and those who support abortion rights volunteer to escort patients
who might otherwise be discouraged from entering the clinics as a result of protests. Some extreme
opponents of abortion feel so strongly that abortion is wrong that they advocate the killing of
doctors who perform abortions. On the other side, some advocates of abortion rights argue that
abortion opponents who threaten women or their doctors should be treated like terrorists because
they advocate violence and attempt to intimidate people from exercising their constitutional rights.
Questions to Consider
1. In your own words, why do you believe that abortion is such a controversial issue?
2. More than 30 years after Roe v. Wade, some argue that this case should not have been
decided by the Court and that the decision belongs in state legislatures. What are the
strengths and weaknesses of this state-by-state legislative approach?
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ACTIVITIES
3. No case in recent constitutional history has stirred deeper emotions than Roe v. Wade.
Organizations have been founded with the primary purpose of either protecting the judicially
created right to an abortion or seeking to have this right overturned. Using the internet, find
one organization on each side of this debate and explain its mission. A list of web sites can
be found at http://www.publicagenda.org/citizen/issueguides/abortion/sources-andresources.
4. When people feel strongly on both sides of such an important issue, can a compromise be
reached? Are there are ways to lessen the hostilities between the two sides?
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DECISIONS
DECISION
Roe v. Wade (1973)
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Key Excerpts from the Majority Opinion
MR. JUSTICE BLACKMUN delivered the opinion of the Court. Chief Justice Burger and
Justices Douglas, Brennan, Stewart, Marshall and Powell joined the opinion.
…We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion
controversy, of the vigorous 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 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.
…The Constitution does not explicitly mention any right of privacy. …[T]he Court has recognized
that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under
the Constitution. … 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 unwanted child, and there is the problem of bringing a child
into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this
one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All
these are factors the woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman's right is
absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and
for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas
either has no valid interest at all in regulating the abortion decision, or no interest strong enough to
support any limitation upon the woman's sole determination, are unpersuasive. The Court's
decisions recognizing a right of privacy also acknowledge that some state regulation in areas
protected by that right is appropriate. As noted above, a State may properly assert important
interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At
some point in pregnancy, these respective interests become sufficiently compelling to sustain
regulation of the factors that govern the abortion decision. The privacy right involved, therefore,
cannot be said to be absolute….We, therefore, conclude that the right of personal privacy includes
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the abortion decision, but that this right is not unqualified, and must be considered against
important state interests in regulation.
… (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.
This holding, we feel, is consistent with the relative weights of the respective interests involved, with
the lessons and examples of medical and legal history, with the lenity of the common law, and with
the demands of the profound problems of the present day. The decision leaves the State free to
place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those
restrictions are tailored to the recognized state interests. The decision vindicates the right of the
physician to administer medical treatment according to his professional judgment up to the points
where important state interests provide compelling justifications for intervention. Up to those
points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and
basic responsibility for it must rest with the physician. If an individual practitioner abuses the
privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional,
are available.
Questions to Consider
1. Where in the Constitution does the Court find support for the right to privacy? Do you
agree that this provision of the Constitution protects a right to privacy?
2. What are the state‟s interests in regulating abortion that are recognized by the Court?
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3. How is the right to privacy in the abortion context different from other areas in which a
right to privacy has been recognized?
4. Describe the right to an abortion that a woman has at each stage of pregnancy.
5. How well do you believe the opinion balances the interests of pregnant women and the
interests of the state? Give reasons for your answer.
6. Justice Blackmun‟s opinion is also concerned with preserving the relationship between the
mother and the physician. How important is it to limit government regulation on the
relationship between the doctor and the patient? Give reasons for your answer.
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DECISIONS
Key Excerpts from the Dissenting Opinion
Mr. Justice Rehnquist, dissenting.
The Court's opinion brings to the decision of this troubling question both extensive historical fact
and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself
nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in
question, and therefore dissent.
The Court's opinion decides that a State may impose virtually no restriction on the performance of
abortions during the first trimester of pregnancy. [However, no party in the case was currently in her
first trimester of pregnancy.] … Even if there were a plaintiff in this case capable of litigating the
issue which the Court decides, I would reach a conclusion opposite to that reached by the Court. I
have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case.
Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed
physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not
"private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a
distant relative of the freedom from searches and seizures protected by the Fourth Amendment to
the Constitution, which the Court has referred to as embodying a right to privacy.
… The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a
broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an
abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack
a rational relation to a valid state objective ... But the Court's sweeping invalidation of any
restrictions on abortion during the first trimester is impossible to justify under that standard, and the
conscious weighing of competing factors that the Court's opinion apparently substitutes for the
established test is far more appropriate to a legislative judgment than to a judicial one.
…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. ….
The only conclusion possible from this history is that the drafters did not intend to have the
Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.
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DECISIONS
Questions to Consider
1. What are Justice Rehnquist‟s reasons for disagreeing with the right to privacy that is
recognized in the majority opinion?
2. What kind of abortion law would Justice Rehnquist agree is unconstitutional?
3. Justice Rehnquist argues that the drafters of the Fourteenth Amendment did not intend for
the rights to be extended to include abortion. Do you think he is correct? Should a right
only be recognized if it was intended by the original drafters of the Constitution or the
amendments? Explain your answer.
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DECISIONS
Summary of the Decision
The Supreme Court decided in favor of Roe in a 7-2 decision. Justice Blackmun wrote the opinion
for the majority, which recognized that a woman‟s choice whether to have an abortion is protected
by her right to privacy. Justices Stewart, Burger and Douglas wrote concurring opinions. Justices
White and Rehnquist dissented.
The majority determined that a woman‟s right to decide whether to have an abortion involved the
question of whether the Constitution protected a right to privacy. The justices answered this
question by asserting that the Fourteenth Amendment, which prohibits states from “depriv[ing] any
person of … liberty … without due process of law,” protected a fundamental right to privacy.
Further, after considerable discussion of the law‟s historical lack of recognition of rights of a fetus,
the justices concluded “the word „person‟, as used in the Fourteenth Amendment, does not include
the unborn.” The right of a woman to choose to have an abortion fell within this fundamental right
to privacy, and was protected by the Constitution.
A woman‟s right to choose to have an abortion was not considered an absolute right. The Court
stated that government restrictions on a woman‟s right to choose were subject to the highest
standard of review, that of strict scrutiny. This level of review requires that in order to be
enforceable, a government regulation of this right must be shown to be narrowly tailored to a meet a
compelling state interest. The justices noted that states did have some legitimate interests in
regulating or prohibiting abortions. The first interest was the protection of the health of the mother
from the dangers of abortion procedures; the second was the protection of the life of the fetus.
While these interests were not very strong in the early stages of pregnancy, they became stronger
(more compelling) in the later stages of the pregnancy. Striking a balance between a woman‟s right
to privacy and a state‟s interests, the Court set up a framework laying out when states could regulate
and even prohibit abortions.
According to the framework, in the first trimester (the first three months of the pregnancy), a
woman‟s right to privacy surrounding the choice to have an abortion outweighed a state‟s interests
in regulating this decision. In the first trimester, having an abortion does not pose a grave danger to
the life and health of the mother, and the fetus is still undeveloped. The state‟s interests are not yet
compelling, so it cannot interfere with a woman‟s right to privacy by regulating or prohibiting her
from having an abortion during the first trimester. During the second trimester, the state‟s interests
become more compelling as the danger of complications increases and the fetus becomes more
developed. During this stage, it may regulate, but not prohibit abortions, as long as the regulations
are aimed at protecting the health of the mother. During the third trimester, the danger to the
woman‟s health becomes the greatest and fetal development nears completion. In the final trimester
the state‟s interests in protecting the health of the mother and in protecting the life of the fetus
become their most compelling. The state may regulate or even prohibit abortions during this stage,
as long as there is an exception for abortions necessary to preserve the life and health of the mother.
In his dissenting opinion, Justice Rehnquist argued that the framers of the Fourteenth Amendment
did not intend for it to protect a right of privacy, a right which they did not recognize, and that they
definitely did not intend for it to protect a woman‟s decision to have an abortion. Justice Rehnquist
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further argued that the only right to privacy is that which is protected by the Fourth Amendment‟s
prohibition of unreasonable searches and seizures. Finally, he concluded that because this issue
required a careful balance of the interests of the woman against the interests of the state, it was not
an appropriate decision for the Court to make, but instead was a question that should have been left
up to state legislatures to resolve.
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