by Diane Rufino, June 25, 2022
“Make no mistake, abortion on-demand is not a right guaranteed by the Constitution. No serious scholar, including one disposed to agree with the Court’s result (referring to Roe v. Wade) has argued that the framers of the Constitution intended to create such a right…But the Court’s decision has by no means settled the debate. Instead Roe v. Wade has become a continuing prod to the conscience of the nation.” — Ronald Reagan, from “Abortion and the Conscience of the Nation”
As we all know, an abortion is a procedure to end a pregnancy. It uses medicine or surgery to remove the embryo or fetus and placenta from the uterus. The question of whether there is a constitutional right for women to abort their pregnancy is perhaps the most controversial issue facing our country right now. It is a moral and religious issue, and one that offends, or should offend, one’s conscience. As the United States has enjoyed broad abortion rights since Roe v. Wade was handed down by the US Supreme Court in 1973, the majority of countries around the world have greater limitations on that ‘right.’
In fact, The United States is one of only seven nations in the world that permits nontherapeutic or elective abortion-on-demand after the twentieth week of gestation. Seventy-five percent (75%) of all nations do not permit abortion after twelve weeks’ gestation, except (in most instances) to save the life of the mother or to preserve her health.
Prior to the Roe v. Wade opinion handed down in 1973, the issue of abortion was a state matter, as the opinion actually and correctly pointed out. Abortion is one of the issues reserved to the sovereign states by the Tenth Amendment, which is essentially a restatement of the doctrine of federalism, which is the system of government established by our Founding Fathers. There is no mention in the Constitution or Bill of Rights, specifically, of an express right to an abortion. The ruling rightfully sends the issue of abortion back to the individual states, where it belongs. Roe was, after all, a usurpation of state authority.
The reality is that every pregnancy involves 2 distinct human lives. The mother’s life, as stressed in Roe, is most important and therefore, if the pregnancy poses a health risk, is inconvenient and causes undue stress, will cause a financial burden, etc, then the woman can exercise her “right” to an abortion and terminate the unique life growing inside her. The second life, the life of the unborn, a blessed creation, is minimalized and for all intents and purposes, ignored. A life not wanted is a life not protected or respected. A life unwanted is a life that can be sacrificed and terminated. The very sad thing is that while the pregnant woman may not want the baby she is carrying, there are so many others who would cherish the ability to love that child and offer it a stable home.
There is a clear ideological divide in our country over the issue of abortion and its rightful place. On the one hand, feminists and feminazis believe they have complete control over their body and whatever is inside it and they alone have the right to decide what to do. The Supreme Court gave them “a constitutional right to an abortion” with Roe and they refuse to want to give that gift up. We see how they are behaving. The motivation for the Roe case was to give woman the right to an abortion in order to control her body and allow her to achieve full equality with males in employment.
On the other hand, there is a huge majority who believes that abortion offends the conscience of our Christian nation. If we expect our Divine Creator to guide and protect us, we must believe as He believes and as Jesus has taught us.
As Justice Samuel Alito stated in his opinion: “Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case (Dobbs), 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.”
The reality is that the Dobbs v. Jackson Women’s Health Organization ruling will not take away a woman’s ability to get an abortion. In most cases, the ability will just be limited to a certain time frame. Liberal (blue) states will no doubt continue enacting laws to recognize and permit abortions, and I would imagine that many will even enlarge that right. Conservative (red) states will most likely either prohibit abortions (highly unlikely) or severely restrict them (like Mississippi has done with its Gestational Age Act).
In the end, liberal pro-abortionists will not have suffered, nor will suffer, as they are so vocally and demonstratively claiming.
I’m not taking the position that all abortion should be prohibited. I believe that a woman, if she suspects she might be pregnant, should be able to: (1) obtain the “Morning-After” pill, or (2) have an abortion up until the fetus is nearly fully-formed and can feel pain. Otherwise, an abortion will not only kill the developing child, but will also torture it.
BACKGROUND:
The abortion law at the center of the Dobbs case is Gestational Age Act adopted by the state of Mississippi in 2018. It was enacted to limit abortions to a time up to the fifteenth (15th) week of gestation.
The bill reads:
Medical and other authorities now know more about human prenatal development than ever before including that:
1. Between five (5) and six (6) weeks’ gestation, an unborn human being’s heart begins beating.
2. An unborn human being begins to move about in the womb at approximately eight (8) weeks’ gestation.
3. At nine (9) weeks’ gestation, all basic physiological functions are present. Teeth and eyes are present, as well as external genitalia.
4. An unborn human being’s vital organs begin to function at ten (10) weeks’ gestation. Hair, fingernails, and toenails also begin to form.
5. At eleven (11) weeks’ gestation, an unborn human being’s diaphragm is developing, and he or she may even hiccup. He or she is beginning to move about freely in the womb.
6. At twelve (12) weeks’ gestation, an unborn human being can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb. Importantly, he or she has taken on “the human form” in all relevant aspects. Gonzales v. Carhart, 550 U.S. 124, 160 (2007).
7. The Supreme Court has long recognized that the State of Mississippi has an “important and legitimate interest in protecting the potentiality of human life,” Roe v. Wade, 410 U.S. 113, 162 (1973), and specifically that “the state has an interest in protecting the life of the unborn.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 873 (1992).
8. The majority of abortion procedures performed after fifteen (15) weeks’ gestation are dilation and evacuation procedures which involve the use of surgical instruments to crush and tear the unborn child apart before removing the pieces of the dead child from the womb. The Legislature finds that the intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.
9. Most obstetricians and gynecologists practicing in the State of Mississippi do not offer or perform nontherapeutic or elective abortions. Even fewer offer or perform the dilation and evacuation abortion procedure even though it is within their scope of practice.
(ii) Abortion carries significant physical and psychological risks to the maternal patient, and these physical and psychological risks increase with gestational age. Specifically, in abortions performed after eight (8) weeks’ gestation, the relative physical and psychological risks escalate exponentially as gestational age increases. L. Bartlett et al., Risk factors for legal induced abortion mortality in the United States, Obstetrics and Gynecology 103(4):729 (2004).
(iii) Importantly, as the second trimester progresses, in the vast majority of uncomplicated pregnancies, the maternal health risks of undergoing an abortion are greater than the risks of carrying a pregnancy to term.
(iv) Medical complications from dilation and evacuation abortions include, but are not limited to: pelvic infection; incomplete abortions (retained tissue); blood clots; heavy bleeding or hemorrhage; laceration, tear, or other injury to the cervix; puncture, laceration, tear, or other injury to the uterus; injury to the bowel or bladder; depression; anxiety; substance abuse; and other emotional or psychological problems. Further, in abortions performed after fifteen (15) weeks’ gestation, there is a higher risk of requiring a hysterectomy, other reparative surgery, or blood transfusion.
(v) The State of Mississippi also has “legitimate interests from the outset of pregnancy in protecting the health of women.” [Planned Parenthood of Southeastern Pennsylvania v. Casey] as the “medical, emotional, and psychological consequences of abortion are serious and can be lasting …”
(c) Based on the findings in paragraph (a) of this subsection, it is the intent of the Legislature, through this section and any regulations and policies promulgated hereunder, to restrict the practice of nontherapeutic or elective abortion to the period up to the fifteenth week of gestation.
Mississippi’s Gestational Age Act provides that ‘except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”
Mississippi Governor Phil Bryant signed the bill into law, commenting publicly that he was “committed to making Mississippi the safest place in America for an unborn child, and this bill will help us achieve that goal.” He added: “We’ll probably be sued here in about a half hour, and that’ll be fine with me. It is worth fighting over.”
As predicted, within a day of the Gestational Age Act’s passage, Mississippi’s only state-run abortion clinic, Jackson Women’s Health Organization (Jackson Women’s Health Center), and one of its doctors, Sacheen Carr-Ellis, sued state Health Officer Dr. Thomas E. Dobbs and Kenneth Cleveland, executive director of the Mississippi State Board of Medical Licensure, in federal district court to challenge the Act’s constitutionality of the law. They argued that the court should adhere to its longstanding principle of stare decisis (“let the ruling stand”) and continue to recognize the constitutional right to abortion. Petitioner Dobbs in defending the law, argued that the Court should overturn Roe v. Wade (1973) for its incorrect assertion that there is a constitutional right to an abortion or alternatively, should reject viability as an unworkable and imprecise measuring tool. In short, Dobbs asked the court to overturn both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). In response, Respondent Jackson Women’s Health Organization (Jackson Women’s Health Center),
The District Court granted summary judgment and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion would likely be found violative of a woman’s right to terminate a pregnancy prior to viability. The Fifth Circuit thereafter affirmed.
Those defending the Gestational Age Act (ie, petitioners) have taken the position that both Roe and Casey were wrongly decided and that the Act is constitutional because it satisfies rational-basis review (the ordinary legal standard of review when a non-constitutional right is at stake). The Supreme Court agreed with them.
In 1973, in his dissenting opinion in Roe, Justice Byron White characterized the decision of the Court as an “exercise of raw judicial power” that has sparked a national controversy that has embittered our political culture for a half century.
OVERVIEW OF THE RULING:
In a 6-3 opinion, written by Justice Samuel Alito, the Supreme Court held that Constitution, in fact, does NOT confer a right to abortion. The Court concluded that Roe and Casey were both incorrectly decided and are now, by this opinion, overruled. What this opinion means is that the authority to regulate abortion is returned to the people of the individual states and their elected representatives – where it rightfully belongs.
The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. If it does, then Roe must be allowed to stand. But if not, then the Court is obligated to determine if a mistake had been made and the nature of that mistake.
Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis (which is a latin term which informs the federal courts that they must allow a former opinion to continue to stand). A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based. The Court therefore had to turn to the question that Roe addressed: Whether there is an articulated constitutional right to an abortion. And second, to the question that the Casey plurality did not consider: Whether the Fourteenth Amendment’s reference to ‘liberty’ protects a particular right.
In fact, the Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions had been offered (in Roe) as potential homes for an implicit constitutional right.
Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the ‘liberty’ protected by the Fourteenth Amendment’s Due Process Clause. Others have suggested that support can be found in the Fourteenth Amendment’s Equal Protection Clause, but that theory is squarely foreclosed by the Court’s precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies to such classifications. (Rather, regulations and prohibitions of abortion are governed by the same standard of review as other health and safety measures).
The 2022 Supreme Court did not agree with the reasoning of Roe.
Next, the Court had to determine if the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of ‘ordered liberty.’ The Court’s decisions have long held that the Due Process Clause protects two categories of substantive rights – those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the question is whether the right is ‘deeply rooted in our history and tradition’ and whether it is essential to this Nation’s ‘scheme of ordered liberty.’
“In interpreting what is meant by ‘liberty,’ the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy. Note that the term liberty alone provides little guidance. For this reason, the Court has been reluctant to recognize rights that are not mentioned in the Constitution.
And so, again, the 2022 Court could not find that the right to abortion is not deeply rooted in the Nation’s history and tradition.
Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided.
“Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. Respondents’ argument that this history does not matter flies in the face of the standard the Court has applied in determining whether an asserted right that is nowhere mentioned in the Constitution is nevertheless protected by the Fourteenth Amendment. The Solicitor General repeats Roe’s claim that it is ‘doubtful . . . abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus,’ but the great common-law authorities—Bracton, Coke, Hale, and Blackstone—all wrote that a post-quickening abortion was a crime. Moreover, many authorities asserted that even a pre-quickening abortion was “unlawful” and that, as a result, an abortionist was guilty of murder if the woman died from the attempt. The Solicitor General suggests that history supports an abortion right because of the common law’s failure to criminalize abortion before quickening, but the insistence on quickening was not universal, and regardless, the fact that many States in the late 18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked the authority to do so.”
Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy,” ordered liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed ‘potential life.’
But the people of the various States may evaluate those interests differently. The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.
Finally, the Court had to consider whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents.
Once again, the 2022 Court concluded that the right to obtain an abortion cannot be justified as a component of such a right. Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed ‘potential life’ and what the law challenged in this case calls an ‘unborn human being.’ None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. Accordingly, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way.
The doctrine of stare decisis does not counsel continued acceptance of Roe and Casey. Stare decisis plays an important role and protects the interests of those who have taken action in reliance on a past decision. It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless re-litigation.” It contributes to the actual and perceived integrity of the judicial process. And it restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past.
But stare decisis is not an inexorable command and “is at its weakest when the Court interprets the Constitution,” Some of the Court’s most important constitutional decisions have overruled prior precedents. [See Brown v. Board of Education, (overruling the infamous “separate but equal doctrine” established in Plessy v. Ferguson]
The Court’s cases have identified factors that should be considered in deciding when a precedent should be overruled: For one, the nature of the Court’s error: Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side (those who sought to advance the State’s interest in fetal life) could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.
Second, the quality of the reasoning: Without any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation. Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong. Then, after surveying history, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee and did not explain why the sources on which it relied shed light on the meaning of the Constitution. As to precedent, citing a broad array of cases, the Court found support for a constitutional right of personal privacy. But Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference.
None of these decisions involved what is distinctive about abortion, which is its effect on what Roe termed “potential life.” When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were “consistent with,” among other things, “the relative weights of the respective interests involved” and “the demands of the profound problems of the present day.” These are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests. The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body.
An even more glaring deficiency was Roe’s failure to justify the critical distinction it drew between pre- and post-viability abortions. The arbitrary viability line, which Casey termed Roe’s central rule, has not found much support among philosophers and ethicists who have attempted to justify a right to abortion. The most obvious problem with any such argument is that viability has changed over time and is heavily dependent on factors – such as medical advances and the availability of quality medical care – that have nothing to do with the characteristics of a fetus. When Casey revisited Roe almost 20 years later, it reaffirmed Roe’s central holding, but pointedly refrained from endorsing most of its reasoning. The Court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment’s Due Process Clause. The controlling opinion criticized and rejected Roe’s trimester scheme and substituted a new and obscure “undue burden” test.
Casey, in short, either refused to reaffirm or rejected important aspects of Roe’s analysis, failed to remedy glaring deficiencies in Roe’s reasoning, endorsed what it termed Roe’s central holding while suggesting that a majority might not have thought it was correct, provided no new support for the abortion right other than Roe’s status as precedent, and imposed a new test with no firm grounding in constitutional text, history, or precedent.
Deciding whether a precedent should be overruled depends in part on whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and predictable manner. Casey’s “undue burden” test has scored poorly on the workability scale. The Casey plurality tried to put meaning into the “undue burden” test by setting out three subsidiary rules, but these rules created their own problems. And the difficulty of applying Casey’s new rules surfaced in that very case. The experience of the Courts of Appeals provides further evidence that Casey’s “line between” permissible and unconstitutional restrictions “has proved to be impossible to draw with precision.” Unfortunately, Casey has generated a long list of Circuit conflicts. Continued adherence to Casey’s unworkable “undue burden” test would undermine, not advance, the “evenhanded, predictable, and consistent development of legal principles.”
In the final analysis, according to a majority of the Supreme Court, the cases of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey needed to be overturned as being egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
As Alito wrote in his opinion, in which he was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’ It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
EXCERPTS from the OPINION:
The following are excerpts and commentary from the opinion issued by Justice Samuel Alito, which apparently hadn’t changed much from the leaked version:
Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe. Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight.
We begin with the common law, under which abortion was a crime at least after “quickening”—i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.
The Court’s opinion in Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people. The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973. The Court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide: “Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice].”
The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone one that is ‘deeply-rooted in this Nation’s history and tradition.’ We have held that the “established method of substantive-due-process analysis” requires that an unenumerated right be so ‘deeply-rooted’ before it can be recognized as a component of the “liberty” protected in the Due Process Clause. But despite the dissent’s professed fidelity to stare decisis, it fails to seriously engage with that important precedent—which it cannot possibly satisfy.
In this case, there are five factors that weigh strongly in favor of overruling Roe and Casey: (1) the nature of their error, (2) the quality of their reasoning, (3) the “workability” of the rules they imposed on the country, (4) their disruptive effect on other areas of the law, and (5) the absence of concrete reliance.
The Nature of the Court’s Error: An erroneous interpretation of the Constitution is always important, but some are more damaging than others. The infamous decision in Plessy v. Ferguson, was one such decision. It betrayed our commitment to “equality before the law.” It was “egregiously wrong” on the day it was decided) and as the Solicitor General agreed at oral argument, it should have been overruled at the earliest opportunity. Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed. Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power” (according to Justice White), the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. “Roe fanned into life an issue that has inflamed our national politics in general and has obscured with its smoke the selection of Justices to this Court in particular, ever since.” (opinion of Justice Scalia in Casey). Together, Roe and Casey represent an error that cannot be allowed to stand.
This Court has previously overruled decisions that wrongly removed an issue from the people and the democratic process. As Justice White later explained, “decisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people’s authority, for such decisions represent choices that the people have never made and that they cannot disavow through corrective legislation. For this reason, it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken.”
The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation. Dividing pregnancy into three trimesters, the Court imposed special rules for each. During the first trimester, the Court announced, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” After that point, a State’s interest in regulating abortion for the sake of a woman’s health became compelling, and accordingly, a State could “regulate the abortion procedure in ways that are reasonably related to maternal health.” Ibid. Finally, in “the stage subsequent to viability,” which in 1973 roughly coincided with the beginning of the third trimester, the State’s interest in “the potentiality of human life” became compelling, and therefore a State could “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.” It relied on an erroneous historical narrative.
This elaborate scheme was the Court’s own brainchild. Neither party advocated the trimester framework; nor did either party or any amicus argue that “viability” should mark the point at which the scope of the abortion right and a State’s regulatory authority should be substantially transformed.
If one takes the view that “personhood” begins when a certain attribute or combination of attributes is acquired, it is very hard to see why viability should mark the point where “personhood” begins. The most obvious problem with any such argument is that viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus. One is the state of neonatal care at a particular point in time. Due to the development of new equipment and improved practices, the viability line has changed over the years. In the 19th century, a fetus may not have been viable until the 32d or 33d week of pregnancy or even later. When Roe was decided, viability was gauged at roughly 28 weeks.
Today, respondents draw the line at 23 or 24 weeks. So, according to Roe’s logic, States now have a compelling interest in protecting a fetus with a gestational age of, say, 26 weeks, but in 1973, States did not have an interest in protecting an identical fetus. How can that be? Viability also depends on the quality of the available medical facilities. Thus, a 24-week-old fetus may be viable if a woman gives birth in a city with hospitals that provide advanced care for very premature babies, but if the woman travels to a remote area far from any such hospital, the fetus may no longer be viable. On what ground could the constitutional status of a fetus depend on the pregnant woman’s location? And if viability is meant to mark a line having universal moral significance, can it be that a fetus that is viable in a big city in the United States has a privileged moral status not enjoyed by an identical fetus in a remote area of a poor country? In addition, as the Court once explained, viability is not really a hard-and-fast line. A physician determining a particular fetus’s odds of surviving outside the womb must consider a number of variables, including gestational age, fetal weight, a woman’s general health and nutrition, the quality of the available medical facilities, and other factors.
It is thus only with difficulty that a physician can estimate the probability of a particular fetus’s survival. And even if each fetus’s probability of survival could be ascertained with certainty, settling on a probability of survival that should count as ‘viability’ is another matter. Is a fetus viable with a 10 percent chance of survival? 25 percent? 50 percent? Can such a judgment be made by a State? And can a State specify a gestational age limit that applies in all cases? Or must these difficult questions be left entirely to the individual “attending physician on the particular facts of the case before him”? The viability line, which Casey termed Roe’s central rule, makes no sense, and it is telling that other countries almost uniformly eschew such a line.52 The Court thus asserted raw judicial power to impose, as a matter of constitutional law, a uniform viability rule that allowed the States less freedom to regulate abortion than the majority of western democracies enjoy.
Workability: Our precedents counsel that another important consideration in deciding whether a precedent should be overruled is whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and predictable manner. Casey’s ‘undue burden’ test has scored poorly on the workability scale. For example, the majority opinion found that Pennsylvania’s 24-hour waiting period requirement and its informed-consent provision did not impose undue burdens. In fact, the test is ambiguous and has generated a long list of circuit court conflicts. It is an unworkable test.
The Court concluded that both the Trimester Approach of Roe and the Undue Burden Test of Casey are not only outdated, but unworkable.
Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so. In the last election in November 2020, women, who make up around 51.5 percent of the population of Mississippi, constituted 55.5 percent of the voters who cast ballots.
Abortion is a unique act because it terminates life or potential life. Abortion is inherently different from marital intimacy, marriage, or procreation. And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right.
Having shown that traditional stare decisis factors do not weigh in favor of retaining Roe or Casey, we must address one final argument that featured prominently in the Casey plurality opinion. The argument was cast in different terms, but stated simply, it was essentially as follows. The American people’s belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle and not on social and political pressures. There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the Court overrules a controversial watershed decision, such as Roe. A decision overruling Roe would be perceived as having been made under fire and as a surrender to political pressure and therefore the preservation of public approval of the Court weighs heavily in favor of retaining Roe.
This analysis starts out on the right foot but ultimately veers off course. The Casey plurality was certainly right that it is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach. But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. That is true both when we initially decide a constitutional issue and when we consider whether to overrule a prior decision. As Chief Justice Rehnquist explained, ‘The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution. The doctrine of stare decisis is an adjunct of this duty and should be no more subject to the vagaries of public opinion than is the basic judicial task.’ In suggesting otherwise, the Casey plurality went beyond this Court’s role in our constitutional system.
Neither the Roe or the Casey decision has ended debate over the issue of a constitutional right to obtain an abortion. Indeed, in this case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives. This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise ‘raw judicial power.’
We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.
Roe’s trimester rule was expressly tied to viability and viability played a critical role in later abortion decisions.
We must now decide what standard will govern if state abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate standard. Under our precedents, rational-basis review is the appropriate standard for such challenges. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.
It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.” That respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance. A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. These legitimate interests include respect for and preservation of prenatal life at all stages of development, the protection of maternal health and safety, the elimination of particularly gruesome or barbaric medical procedures, the preservation of the integrity of the medical profession, the mitigation of fetal pain, and the prevention of discrimination on the basis of race, sex, or disability.
These legitimate interests justify Mississippi’s Gestational Age Act. Except “in a medical emergency or in the case of a severe fetal abnormality,” the statute prohibits abortion “if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” The Mississippi Legislature’s findings recount the stages of “human prenatal development” and assert the State’s interest in “protecting the life of the unborn.” The legislature also found that abortions performed after 15 weeks typically use the dilation and evacuation procedure, and the legislature found the use of this procedure “for nontherapeutic or elective reasons [to be] a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”
These legitimate interests provide a rational basis for the Gestational Age Act, and it follows that respondents’ constitutional challenge must fail. Thus, we end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
CONCLUSION:
Now that the Supreme Court has finally come to the right opinion regarding abortion and has over-turned Roe v. Wade, the second of its opinions to stain the moral conscience of our country (the first being the Dred Scott case of 1857, written by Justice Roger Taney which held that negroes, whose ancestors were imported into the US and sold as slaves,” whether enslaved or free, were never intended to be included as citizens of the country and therefore have the right to sue in federal court), it’s time for the American people to realize that the high court has NOT stripped women of their “right” to an abortion. It has simply recognized the reality and legality of the issue, which is that it belongs with the individual states, which is where it was vested before the Roe opinion. That power to legislate on abortion now returns back to the states, where it rightfully belongs. The states were originally the ones left with facing these difficult questions and our Founding Founders knew that not every state would have the same answer. But then again, that’s how our beautiful, messy system of federalism, liberty, and self-governance works.
Of course, if the American people truly want a constitutional amendment that identifies and protects a woman’s right to an abortion, there is a legal way to do so. It’s called the Article V Amendment process. Until that time, all debates, all protests, all drama queen moments, all calls to ignore the Court’s ruling, and all calls for insurrection are moot, destructive, and non-value-added. Time to put our big lady and big man underpants on.
GOING FORWARD: What needs to be done in the wake of Dobbs:
(1) Since the Dobbs decision rightfully concludes that there is no “constitutional right” to an abortion (no right of a woman to control her fertility), that means abortion is no longer a federal issue and should no longer be addressed by the federal court system. Congress should pass a law that restricts the jurisdiction of the federal court system and eliminates certain issues, including abortion. (See Reference section for treatise on “Congress’s Power Over Courts – Jurisdiction Stripping”)
(2) Congress should enact a federal “Definition of Life” law which will define when a human life begins and which includes time(gestational) in the womb.
We need to be respectful of this landmark abortion ruling. It not only recognizes and revitalizes the Tenth Amendment and the critical principle of States’ rights, but it respects the sanctity and vulnerability of unborn human life. That should be an issue that we can all get behind.
“Our opponents tell us not to interfere with abortion. They tell us not to impose our morality on those who wish to allow or participate in the taking of the life of infants before birth. Yet no one calls it imposing morality to prohibit the taking of life after a child is born. We’re told about a woman’s right to control her own body. But doesn’t the unborn child have a higher right, which is to life, liberty, and the pursuit of happiness?” –President Ronald Reagan
“Every legislature, every doctor and every citizen needs to recognize that the real issue is whether to
affirm and protect the sanctity of all human life, or to embrace a social ethic where some human lives
are valued and others are not. As a nation, we must choose between the sanctity of life ethic and the
‘quality of life’ ethic.” — Ronald Reagan
References:
Dobbs v. Jackson Women’s Health Organization (June 24, 2022) – https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
Mississippi’s Gestational Age Law
“Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein,” Congressional Research Service, August 9, 2018. Referenced at: https://crsreports.congress.gov/product/pdf/R/R44967#:~:text=Congress%20has%20gone%20so%20far,of%20interest%20to%20the%20legislature
“The Supreme Court and Abortion,” The John Birch Society, May 17, 2022. https://thenewamerican.com/the-deep-state-supreme-court-and-abortion/
Roe v. Wade, 410 U.S. 959 (1973) – https://www.law.cornell.edu/supremecourt/text/410/113
The Liberty Belle, “Roe v. Wade and the US Constitution,” May 2022. Referenced at
ADDENDUM:
I. SELECTED EXCERPTS from ROE v. WADE, 410 U.S. 113 (1973) – Opinion written by Justice Harry Blackmun
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 [See Griswold v. Connecticut (1965)] or among those rights reserved to the people by the Ninth Amendment. Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.
The Common Law: It is undisputed that at common law, abortion performed before ‘quickening’-the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy was not an indictable offense. The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became ‘formed’ or recognizably human, or in terms of when a ‘person’ came into being, that is, infused with a ‘soul’ or ‘animated.’ A loose consensus evolved in early English law that these events occurred at some point between conception and live birth. This was ‘mediate animation.’ Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas’ definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.
England’s First Criminal Abortion Statute: England’s first criminal abortion statute, Lord Ellenborough’s Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, § 1, a capital crime, but in § 2 it provided lesser penalties for the felony of abortion before quickening, and thus preserved the ‘quickening’ distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85, § 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of ‘the life of a child capable of being born alive.’ It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be found guilty of the offense ‘unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.’
A seemingly notable development in the English law was the case of Rex v. Bourne, (1939) 1 K.B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge MacNaghten referred to the 1929 Act, and observed that that Act related to ‘the case where a child is killed by a willful act at the time when it is being delivered in the ordinary course of nature.’ He concluded that the 1861 Act’s use of the word ‘unlawfully,’ imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother’s life in the 1861 Act. He then construed the phrase ‘preserving the life of the mother’ broadly, that is, ‘in a reasonable sense,’ to include a serious and permanent threat to the mother’s health and instructed the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary for this purpose. The jury acquitted.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) ‘that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated,’ or (b) ‘that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.’ The Act also provides that, in making this determination, ‘account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.’ It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion ‘is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.’
American Law: In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough’s Act that related to a woman ‘quick with child.’ The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860. In 1828, New York enacted legislation that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickend fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it ‘shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.’ By 1840, when Texas had received the common law, only eight American States had statutes dealing with abortion. It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother’s life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.
Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother’s health.35 Three States permitted abortions that were not ‘unlawfully’ performed or that were not ‘without lawful justification,’ leaving interpretation of those standards to the courts.36 In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, § 230.3,37.
It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
Grave defects of our laws, both common and statute, as they regard the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the fetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, and to its life as yet denies all protection.’
abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal ‘abortion mills’ strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy,
The third reason is the State’s interest-some phrase it in terms of duty-in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception.45 The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to life birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia (1969); in the Fourth and Fifth Amendments, Terry v. Ohio (1968), Katz v. United States (1967); in the penumbras of the Bill of Rights, Griswold v. Connecticut; in the Ninth Amendment, or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska (1923). These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut (1937) and are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia (1967); procreation, Skinner v. Oklahoma (1942); contraception, Eisenstadt v. Baird, family relationships, Prince v. Massachusetts (1944); and child rearing and education, Pierce v. Society of Sisters.
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. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past.
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. Although divided, most of these courts have agreed that the right of privacy is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.
Appellant (Roe) claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee, on the other hand, argues that the State’s determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.
The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on re-argument. On the other hand, the appellee conceded on re-argument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, which at some point becomes a living human being. (The unborn, of course, was immediately created as a unique individual the moment of conception). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
It should be noted that there is a divergence of thinking on this most sensitive and difficult question – when does ‘life” begin. There has always been strong support for the view that life does not begin until live birth. As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes ‘viable’ (fetal viability), that is, potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a ‘process’ over time, rather than an event, and by new medical techniques such as menstrual extraction, the ‘morning-after’ pill, implantation of embryos, artificial insemination, and even artificial wombs.
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before life birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon life birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a non-resident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’
With respect to the State’s important and legitimate interest in the health of the mother, the ‘compelling’ point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like. This means, on the other hand, that, for the period of pregnancy prior to this ‘compelling’ point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.
With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability (fetal viability). This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those ‘procured or attempted by medical advice for the purpose of saving the life of the mother,’ sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, ‘saving’ the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.
To assess the interests at stake in a pregnancy (the interests of the woman to control her body, health, and fertility versus the state’s interests in protecting the life of the unborn, the Supreme Court came up with a “Trimester Framework” to guide states to. enact different categories of abortion regulations at different stages. of pregnancy:
(From the Opinion)
A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
The Trimester Approach:
(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.
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case.
Tenth Amendment Movement 