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ABORTION: Roe v. Wade

Updated: Jul 18, 2022

Roe v. Wade (1972) (Right to Privacy)

Jane Roe (pseudonym) brought a lawsuit against a Texas law that banned abortion in the state, except to save the life of the mother. Jane Roe sought an abortion even though she was not facing a life-threatening condition. She argued that the Constitution contained a right to privacy and this right to privacy included a woman’s decision, whether or not, to terminate a pregnancy. And claimed that this right was absolute with no limitations.

In a 7-2 vote, the Court agreed with Roe in stating that the Constitution protected a fundamental right to an abortion. Thus, the Texas law was struck down. However, the Court denied that this right was absolute and stated that there were times states could regulate when and whether a woman could terminate her pregnancy. For instance, when the mother’s life was threatened.

Where did the Court draw the line between a woman’s right to choose and a state’s power to regulate?

In agreeing with Jane Roe, the Court did base its right to an abortion on the right to privacy and that the Constitution protected privacy rights. However, here is where constitutional interpretation comes in. The word “Privacy” doesn’t occur in the Constitution nor does the term “Right to Privacy” appear in the Constitution or its amendments.

The Roe Court leaned on a case from 1965, Griswold v. Connecticut. Griswold asserted that the right to privacy struck down state laws that banned birth control.

The Court in Griswold reasoned that the specific protections of the Bill of Rights (free speech, free exercise of religion, no quartering of troops, no searches and seizures without a warrant) taken together where protections that form a “zone of privacy” around individuals.

This zone is twofold:

On the one hand, it includes physical space (e.g. you can’t have warrantless searches nor have troops quartered in your home) and on the other hand, this zone includes thought and choice (e.g. the ability to say what you think/Free Speech and the ability to think and act upon your religious convictions/Establishment Clause and Free Exercise Clause). And these protections limit where the government can go; precluding government intrusions.

However, neither birth control nor abortion is mentioned in these amendments, the Bill of Rights, i.e., one can’t point to the Abortion Clause in the Constitution. The Court reasoned that the protections in the Bill of Rights didn’t include every choice or every space that fell under the zone of privacy, writing:

“Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

Griswold v. Connecticut (1965)

What exactly does the excerpt from Griswold mean? A penumbra is defined as the partially shaded outer regions of a shadow. An emanation is defined as something that originates from another source.

Thus, the Court claimed that out of the listed Bill of Rights originated further ones — rights that were needed to make sure that the listed rights were fully protected. So, the Bill of Rights is argued by the Griswold court to be a baseline from which to list many more unwritten rights, that the Constitution was supposed to protect. And the Roe court said one of these unlisted, unwritten, protected rights, was the right to an abortion because it concerned the physical space of a woman’s body. The Roe court argued that just as one should not be able to reach a person’s body without a warrant as the 4th Amendment says, the government can not invade a woman’s body by regulating abortion.

Second, just as the right to privacy protected free speech and freedom of religion, so it protected the choice whether or not to terminate a pregnancy. Also, due to how much a pregnancy can change a woman’s life the Roe court went further and declared this right to an abortion as a fundamental right.

The Roe court conceded that if life began at conception then, the unborn right to life would override the woman’s life to choose and would be just as important or entitled to protection as the mother’s life.

However, the Roe court argued that historically and currently, medical science, philosophers and theologians all disagree between each other and within themselves, as to when life begins. And therefore, this lack of consensus precluded a binding legal conclusion about when life begins.

Further, the Roe court, at this juncture, did look to the text of the Constitution (although the Roe court did not look to the text of the Constitution when examining the right to privacy— which contained an extra-textual basis.) and indicated that when the Constitution referred to persons, it was never referring to the unborn.

Roe’s holding did not make abortion absolute, however. The Court allowed regulation of some abortions, some of the time, e.g., restrictions that protect the health of the mother and the health of the unborn child.

So the Roe court did decide that life could begin before birth. Guiding this in-between decision, the court laid down the trimester framework which delineated when a state could regulate an abortion, breaking down the pregnancy in 3 sets of 3 months. In the first 3 months, no state regulation on abortion was allowed. During the 2nd trimester, months 4 through 6, the state could regulate only to protect the health and life of the mother. During the 3rd trimester, months 7 through natural birth, the state could ban abortion. However, even in this 3rd trimester, the state could make an exception for the mother’s health. However, exactly the circumstances that would qualify for this exception were unclear/ambiguous. Therefore, the court in Roe, established a broad standard for the right to an abortion, setting the stage for later debate.

The contemporary debate on abortion rights today, center around a later case that built on Roe, Planned Parenthood v. Casey decided in 1992.

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