GVPT 231 - 0104
Roe v. Wade (1973)
Roe was convicted under a Texas statute forbidding abortion except in cases where
it was necessary to save the life of the mother. Appellant claimed that a "right
to privacy," established by Griswold
(1968) was violated by the statute, while the state claimed it had an interest in
protecting the life of the unborn fetus.
Can the state regulate abortion procedures?
(7-2) The Texas law violates the Due Process Clause of the Fourteenth Amendment. The
state has no authority to regulate abortion in the first trimester of pregnancy;
it can regulate the procedure in the interest of the health of the mother in the
second trimester; it can further regulate or ban altogether the procedure (except in cases
where the mother's life is threatened) in the third trimester.
The right of privacy is "broad enough to encompass a woman's decision whether or not
to terminate her pregnancy." However, this right is not unqualified; narrowly-drawn
legislative enactments may place limitations on abortion providing the laws if there
is a legitimate state interest to the protection of health, medical procedures and
Though the Constitution mentions no right to privacy, it exists in either the "liberties
fundamental to an ordered society" incorporated into the Fourteenth Amendment (Palko
, 1938) or as one of the Ninth Amendment "unenumerated rights" belonging to the people.
Denying a woman an abortion and requiring her to bring a child to term infringes
on those liberties and may impose psychological, social, and financial harm. The
state has no "compelling interest" in regulating this medical procedure; society will not
be 'improved' in any measurable sense by its implementation.
Common law precedents draw a distinction between fetuses before "quickening" (when
the fetus moves on its own accord) and after quickening. The first trimester is generally
acknowledged to the period before quickening occurs. The fetus becomes 'viable' in the third trimester and the state may then assume a legitimate interest in the preservation
of its life.