Eric Webster
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 prenatal life.

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.