by: 4LawSchool.com

Roe v. Wade, 410 U.S. 113 (1973), is one of Supreme Court's most popular and controversial rulings. This article provides a summary of this decision.

Facts: The great state of Texas had a law which made it illegal to procure abortion unless the life of the mother was threatened by the pregnancy. The plaintiff (a pregnant woman) claimed that this law violated her constitutional rights.

Procedure: The District court provided declaratory relief to P by holding the law unconstitutional under the Ninth Amendment.

Issue: Does the P have a constitutional right to terminate her pregnancy?

Holding: Yes- but right not absolute.

Rationale (Blackmun): According to the court, the right of privacy under the 14th Amendment is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The court further ruled that the right of the woman is not absolute. The state can regulate the woman's actions in cases where the law serves a "compelling state interest". The court rejected Texas argument that at conception, the unborn should be considered a person under the Constitution. According to the court, the word "person" as used in the Constitution does not refer to the unborn. Therefore, in the end, the court ruled that in the initial stages of the pregnancy (before the end of the first trimester) the woman and her physician are free to make their choice about abortion without the interference from the state. For the subsequent stage of pregnancy, the state can regulate the woman's choice but only to serve the compelling interest of promoting the health of the mother. For the stage after 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 to preserve the life of the mother.

Concurrence (Stewart): Even though the court in Griswold tried to avoid the substantive due process, it is clear that the case was decided based on this doctrine. The liberty protected by due process covers more than those freedoms explicitly named in the Bill of Rights. A woman enjoys the liberty to decide whether or not to terminate her pregnancy. But such liberty can be limited if the state shows a compelling interest (not just a legitimate interest).

Concurrence (Douglas): Three types of liberties: 1. Autonomous control over the development and expression of one's intellect, interests, tastes, and personality These right protected by 1st Amendment and are absolute. 2. Freedom of choice in the basic decision of one's life respecting marriage, divorce, procreation, contraception, and education. Not absolute and subject to some control by police power. 3. freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or load. Subject to regulation on a showing of compelling state interest.

Dissent (Rehnquist): The fact that laws against abortion have existed for long time suggests that abortion is not so rooted in the traditions and conscience of our people as to be ranked as fundamental. Furthermore, the majority's "compelling interest" requirement will take the court back to the Lochner era when the court acted more like a super legislature.