Privacy and PregnancyLee Boomer2021-02-08T17:07:22-05:00
Privacy and Pregnancy
The opinion of the Supreme Court in the case of Roe v. Wade.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This opinion was written by Justice Harry Blackmun.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.
The justices acknowledge that abortion is a sensitive and emotional topic. There are many factors that determine how someone feels about abortion.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection . . .
The court’s job is to resolve this issue without emotion.
Jane Roe, a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional . . .
Jane Roe is a single woman who was living in Texas. She argued that Texas’s abortion laws are unconstitutional.
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions”; that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy . . .
Jane Roe was unmarried and pregnant. She wanted to end her pregnancy safely. She could not do this in Texas because there was no legal way to get an abortion there. Texas law only allows an abortion if the life of the mother is at risk. Jane could not afford to travel to another state for a legal abortion. This means that Texas law prevented her from doing what she wanted.
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 . . .
The main point of Jane Roe’s argument is that women should have the right to choose to end a pregnancy.
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage.
It is important to acknowledge that many abortion laws in America are relatively new.
It is thus apparent that… 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 . . .
Abortion was not as regulated from the founding our nation through the 19th century. Women at that time had more rights to end a pregnancy than women today.
When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman . . . Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940’s, standard modern techniques… were not nearly so safe as they are today . . .
More abortion laws started to appear when it became clear that some abortions were very dangerous. Today, they are much safer.
Modern medical techniques have altered this situation… Abortion… 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.
Modern technology ensures that abortions are mostly safe. They are most safe when they are legal, and are as safe or safer than childbirth. This means that states can no longer claim that they restrict abortions because they are dangerous. Of course, there are still times when abortions are dangerous.
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however… 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 . . .
The Constitution does not specifically explain the right to privacy. But the Supreme Court has recognized that citizens have privacy in past decisions.
This right of privacy… 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 . . . 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.
The right of privacy includes a woman’s decision to end her pregnancy. Denying this right could harm a woman in many ways. A woman might not be able to afford a child. Raising an unplanned child might lead to mental and physical health problems. Raising an unwanted child is also stressful for the parent and child. Unmarried mothers face an unfair stigma. These are things a pregnant woman can discuss with a doctor when deciding what to do.
On the basis of elements such as these, appellant… argue[s] 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… As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life . . .
Jane Roe argues that a woman should be able to get an abortion at any time in her pregnancy. We disagree with this. We do agree there are times when a state should regulate abortion.
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.
Therefore, the Court concludes that the right to privacy includes the right abortion. But this right is not universal. States can regulate abortion at certain times.
Our conclusion . . . means, of course, that the Texas abortion statutes, as a unit, must fall . . .
It is so ordered.
This conclusion means that the current Texas abortion laws are no longer valid.
Roe v. Wade, 410 U.S. 113 (1973), “Opinion of the Court” (excerpted), U.S. Supreme Court.
The debate over abortion was one of the most controversial of the 20th century. On one hand, the debate involved morality and rights. Anti-abortion advocates believed abortions to be immoral. Pro-choice advocates believed every woman had the right to decide if she wanted children.
On the other hand, the debate was about regulating a medical procedure that had the potential be life threatening. The abortion laws in most states were based on the belief that abortions were dangerous. In fact, by the post-war era, legal abortions were quite safe. The problem was that laws were so restrictive that most women who wanted to end a pregnancy pursued illegal abortions. These laws did not stop women from getting abortions. They forced women to undergo dangerous abortions. Before 1973, experts estimate that anywhere between 200,000 and 1.2 million illegal abortions took place annually and around 200 women died from abortions annually.
In 1970, Jane Roe, which was a fictional name used to protect the real woman’s identity, claimed that Texas’s anti-abortion law violated her constitutional rights. She argued that she had the right to abort her pregnancy legally and safely. By contrast, the state of Texas argued that the law in question protected citizens from dangerous procedures. Jane Roe’s case appeared before the Supreme Court in 1971. Over one year later, the Court issued its decision. Seven out of nine justices ruled in favor of Roe.
This decision had a huge impact. Any law that was similar to the Texas law was also struck down. This meant more access to legal abortions across the country. Experts estimate that by 1985, only eight American women died annually from having an abortion.
About the Document
This is an excerpt from the opinion of the Court in Roe v. Wade, written by Justice Harry Blackmun. In it, he outlines how the Supreme Court came to its final decision.
abortion: A procedure to end a pregnancy.
appellant: A person who appeals their case for review by a higher court.
opinion of the court: A written explanation for a decision made by the United States Supreme Court.
stigma: A mark of disgrace.
Supreme Court: The highest court in the United States.
terminate: To end something.
What is the Supreme Court’s final decision? Did they fully support Jane Roe’s demand for unconditional access to abortion in Texas?
Why do you think the opinion opens with an acknowledgement that abortion is an emotional topic? What might the justices have been worried about?
How does the Supreme Court justify its decision? How does the right to privacy factor into this debate?
What does the opinion say about the history of abortion laws in the United States? How did attitudes about this procedure change over time? Why is this important?
Compare Roe v. Wade to two other Supreme Court opinions in WAMS: Muller v. Oregon and Goesaert v. Cleary. Invite students to consider how these court cases demonstrate changing attitudes about women’s rights.
Abortion was a critical topic of discussion at the National Women’s Conference and the Pro-Life, Pro-Family Rally in 1977. Read the Bella Abzug and Phyllis Schlafly life stories to understand these events and the impact of Roe v. Wade. Invite students to think about how Bella and Phyllis would have reacted to this decision.
Debates around abortion and birth control were often lumped together. Pair this ruling with the birth control pill case and consider how these two resources highlight the relationship women had with pregnancy in the mid-20th century.
AMERICAN IDENTITY AND CITIZENSHIP; ACTIVISM AND SOCIAL CHANGE; DOMESTICITY AND FAMILY