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Roe v. Wade
Roe v. Wade
Wade
Facts
A TX statute outlaws abortion unless necessary to save the life of the mother.
Procedural History
Issues
Holding/Rule
Reasoning
The Constitution does not explicitly mention any right to privacy. However, the Court has
recognized a right to privacy or a guarantee of certain zones of privacy under the
Constitution.
o This right to privacy, whether from the 14th or 9th amendment is broad enough to
encompass a woman's decision whether or not to terminate her pregnancy.
o However, this right is not absolute; any attempt to limit this right must meet strict
scrutiny.
The word person, as used by the 14th amendment, does not include the
unborn.
The amendment does not say so, and legal abortion practices were
far freer than they are today.
The pregnant woman is not isolated in her privacy right.
The health and life of the other being is an interest at some point.
The Court will not decide when life begins; no one else has been
able to do it.
However, most physicians seem to point to the point at
which the fetus becomes viable (potentially able to live
outside the mother's womb) - 24 to 28 weeks.
Thus, the state has an important and legitimate interest in preserving and protecting the
health of the pregnant woman and that it has still another important and legitimate interest
in protecting the potentiality of human life.
o The compelling point for the health of the mother comes at the end of the first
trimester since the dangers of abortion equal the dangers of childbirth at this point.
o The compelling point for the potential life comes at the point of viability since the
being has the capability of meaningful life outside the mother's womb at this point.
Dissent
Rehnquist
o The right of privacy is not involved in this case.
A transaction resulting in an operation such as this is not private in the
ordinary usage of that word.
Since the right at issue here is just the right not to be interfered with by the
gov't, the laws in question must only meet the rational basis test.
o The fact that a majority of states have had restrictions on abortions for at least a
century is a strong indication that the asserted right to an abortion is not so rooted
in tradition as to be ranked as fundamental.
The statute in question here was enacted before the adoption of the 14th
amendment and has persisted to this day.
There apparently was no question regarding the validity of this provision or
of any other state statutes when the 14th amendment was adopted.
The drafters did not intend to have the 14th amendment withdraw from the
states the power to legislate with respect to this matter.