Docket 70-18
Roe v. Wade
DecidedJan 22, 1973
7-2decision
Source: CourtListener.
Supreme Court establishes constitutional right to abortion, limits states' power to ban it
What it does
The ruling holds that the right of personal privacy, grounded in the Fourteenth Amendment's Due Process Clause, includes a woman's decision whether to terminate her pregnancy. It creates a trimester framework: during the first trimester the abortion decision belongs to the woman and her physician free of state regulation; after the first trimester the state may regulate abortion procedures to protect maternal health; and after viability the state may regulate or prohibit abortion except when necessary to preserve the life or health of the mother. The Texas statute banning abortion except to save the mother's life is struck down as too broad because it fails to make these distinctions.
Who benefits
Pregnant women seeking abortions, particularly in early pregnancy, and physicians who perform abortions gain freedom from criminal prosecution under laws like Texas's near-total ban.
Who is affected
States with strict criminal abortion statutes must revise their laws to conform to the trimester framework, and prosecutors in those states lose the ability to enforce broad abortion bans as previously written.
Practical impact
States with abortion bans similar to Texas's had to rewrite their criminal statutes to allow abortion at least during the first trimester without restriction and to tie any later restrictions to maternal health or fetal viability. Physicians gained the ability to perform early abortions without fear of prosecution, and women nationwide gained legal access to abortion services regardless of their state's prior restrictive laws.
Majority reasoning
The majority, through Justice Blackmun, reasoned that a line of prior cases recognizes a constitutional right of personal privacy rooted in the Fourteenth Amendment's concept of liberty, and that this right is broad enough to cover a woman's decision to end a pregnancy given the physical, psychological, and social burdens of unwanted childbirth. The Court rejected the argument that a fetus is a "person" under the Fourteenth Amendment, noting that the word "person" as used throughout the Constitution applies only postnatally and that abortion law throughout the 19th century was far more permissive than the Court found the challenged statute to be. However, the majority also held the privacy right is not absolute: the state has legitimate interests in protecting maternal health and in protecting potential life, and these interests become "compelling" at different points—maternal health at approximately the end of the first trimester (when abortion becomes statistically riskier than the procedure itself), and potential life at viability (when the fetus could survive outside the womb). Because the Texas law banned abortion at every stage except to save the mother's life, without distinguishing between these interests, the Court found it swept too broadly to survive constitutional scrutiny. The Court also declined to resolve the philosophical or theological question of when life begins, stating that judges are not equipped to answer a question on which doctors, philosophers, and theologians themselves disagree.
Dissent reasoning
Justice Rehnquist dissented, arguing first that the record does not show Roe was in her first trimester when she filed suit, so the Court had no proper factual basis to decide how far a state may regulate early-stage abortions—calling this a violation of the rule against deciding constitutional questions broader than the facts require. He also disputed that a "privacy" right was truly at stake, since an abortion performed by a licensed physician is not "private" in the ordinary sense, and argued that if any right exists here it is better understood as a "liberty" interest under the Due Process Clause, which should be evaluated under the traditional rational-basis test rather than the stricter "compelling state interest" standard the majority borrowed from equal protection cases. Rehnquist contended that the compelling-interest test converts the Court into a legislature by requiring judges to weigh policy considerations, comparing the majority's approach to the discredited economic substantive due process of Lochner v. New York. He pointed to the fact that a majority of states had restricted abortion for roughly a century, including 21 pre-Fourteenth Amendment laws still on the books, as strong evidence that the asserted right to abortion is not "deeply rooted in the traditions and conscience of our people." Finally, he argued that even accepting the majority's substantive framework, the Court should not have struck down the Texas statute in its entirety, since it was invalid only as applied to certain fact patterns, not unconstitutional on its face for all circumstances.
Constitutional question
Whether the constitutional right to privacy protects a woman's decision to terminate her pregnancy, and if so, to what extent states may restrict that decision through criminal abortion laws.
Precedent changed
The ruling extends and builds upon Griswold v. Connecticut (privacy right regarding contraception) and Eisenstadt v. Baird, applying the constitutional right of privacy to the abortion decision for the first time.