Roe v Wade remains one of the Supreme Court’s most controversial opinions. As a general matter, states have the police power to prohibit murder- that is the taking of a life. Does the police power give the States the authority to prohibit abortions? Our analysis starts with the text of the fourteenth amendment.
The due process clause provides “Nor shall any State deprive any person of life, liberty or property without due process of law”
If terminating a pregnancy constitutes liberty then the state cannot deprive a mother of that liberty without due process of law. On this theory the 14th Amendment would protect the right to have an abortion nationwide, unless a state can show that its specific law is valid. However the 14th amendment does not only concern the rights of the mother, the equal protection clause requires us to consider the legal status of the fetus.
It provides: “No State shall deny to any person within its jurisdiction the equal protection of the laws.” If the fetus is a person, does the State have a duty to equally protect born and unborn persons alike from murder? If so, on this theory, abortion must be prohibited nationwide.
And Congress could then use it’s powers under section 5 of the 14th amendment to enact appropriate legislation to criminalize abortion should a State fail to do so. The crux of the equal protection theory would then turn on when a fetus becomes a person and if abortion is to be considered murder.
However, even if abortion is not considered murder, a state could still ban the procedure. Under the so-called “police power” states argue that they can prohibit a wide range of immoral conduct, regardless of whether it harms another person.
For example, States can criminalize animal cruelty. Under this conception of the police power, the decision of whether or not to prohibit certain types of immoral conduct is left to the states.
Accordingly conservative states could ban abortion, while more liberal States can legalize it.
Whether this federalism option is available therefore turns on the scope of the police powers. Prior to Roe v Wade, many States banned almost all abortions. Texas, for example, criminalized abortions unless it was needed to save the life of the mother.
In 1970 Norma McCorvey (Better known as Jane Roe) challenged the Constitutionality of Texas abortion law. McCorvery told the police she was raped in order to procure a legal abortion. However McCorvery later admitted that she fabricated the allegation. She also attempted to obtain an illegal abortion, but the clinic had already been shut down.
Instead, two attorneys recruited McCorvey as the lead plaintiff to challenge Texas’ law. She filed the suit under the pseudonym Jane Roe. The case was appealed to the Supreme Court. Roe’s attorney argued that Texas’ abortion law was unconstitutional under the 5th, the 9th and the 14th amendments. She added “There is a great body of precedent.”
The leading precedent was Griswold v Connecticut. In Griswold, Justice William O’Douglas found that
“Specific guarantees in the bill of rights have penumbras formed by emanations from those guarantees that help give them life and substance.” He added:
“Various guarantees in the Bill Of Rights, including the 1st, 3rd, 4th, 5th and 9th amendments create zones of privacy. Justice Douglass concluded that this right to privacy included a right of married couples to have access to contraceptives.
However in Roe, the Court seemed equivocal about the basis of a right to an abortion.
Justice Harry Blackmun wrote the majority opinion. He wrote:
“The right of privacy, whether it be founded in the 14th amendment’s concept of personal liberties and restrictions upon State action, as we feel it is, or, as the district court determined, in the 9th amendment’s reservation of rights to the people is broad enough to encompass a women’s decision whether or not to terminate her pregnancy.”
The Court added: “Only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ are included in this guarantee of personal privacy.”
Ultimately the Court rested its decision of the due process clause of the 14th amendment. In Court Texas argued that
“The State has a compelling interest because of the protection of fetal life.”
The Court agreed, in part, the “State retains a definite interest in protecting Women’s own health and safety, when abortion is performed at a late stage of pregnancy,”
Critically, at some point in pregnancy the State’s interests become sufficiently compelling to sustain prohibitions on abortion to protect fetal life. The court found that the mother’s right to an abortion and the State’s interest in regulating abortions changes throughout the 9 months of pregnancy.
In the first trimester the state can only regulate the qualifications and licensing of doctors and facilities that provide abortions. However during this time, the state cannot prohibit or even restrict abortions to protect fetal life.
Prior to the “compelling point” of viability, “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgement, the patient’s pregnancy should be terminated.”
In the 2nd trimester the state can regulate abortions in ways reasonably related to the protection of maternal health.
Only in the 3rd trimester subsequent to viability, to promote the potentiality of human life a state may regulate and even ban abortion except where necessary for the preservation of the life or health of the mother.
Justice Blackmun explained that his 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 interest.”
The vote in Row was 7 to 2,
Justices White and Rehnquist dissented. Justice White wrote:
“I find nothing in the language or history of the Constitution to support the court’s judgement.
As an exercise of raw judicial power, the Court perhaps has authority to do what it does today.
But in my view its judgement is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”
Justice Rehnquist wrote that the majority opinion is closely attuned to Lochner v New York.
“As in Lochner the adoption of the compelling State interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be ‘compelling’ “
He added: “The decision here to break pregnancy into three district terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation then it does of a determination of the intent of the drafters of the fourteenth amendment.”
In a concurring opinion, Justice Potter Stewart formally embraced the concept of substantive due process substantive due process. He wrote:
“As so understood, Griswold stands as one in a long line of cases decided under the doctrine of substantive due process and I now accept it as such.
To call the legitimacy of Roe into question, Stanford law professor Gerald Gunther paired Lochner with Roe in his widely used casebook. By the time Roe v Wade was decided in 1973 Norma McCorvey had already carried her pregnancy to term. She gave her 3rd child up for adoption. In the 1980’s she became an icon for abortion rights groups.
However, later in life, McCovey changed her stance on abortion when she became a born again Christian and famously served as an advocate for the prolife movement.
The first challenge to Roe came in 1992 with the case of Planned Parenthood v Casey in which the court decided if Roe should be overturned. But that is another case for another day…