The Supreme Court case that held that the Constitution protected a woman’s right to an abortion prior to the viability of the fetus.
The case involved a Texas statute that prohibited abortion except when necessary to save the life of the pregnant woman. The Supreme Court, in a decision written by Justice Blackmun, recognized a privacy interest in abortions. In doing so, the court applied the right to privacy established in Griswold v Connecticut (1965). At stake in this matter was the fundamental right of a woman to decide whether or not to terminate her pregnancy. The underlying values of this right included decisional autonomy and physical consequences (i.e., the interest in bodily integrity).
Because there was a fundamental right involved, the court applied the strict scrutiny test.
The Court divided the pregnancy period into three trimesters. During the first trimester, the decision to terminate the pregnancy was solely at the discretion of the woman. After the first trimester, the state could “regulate procedure.” During the second trimester, the state could regulate (but not outlaw) abortions in the interests of the mother’s health. After the second trimester, the fetus became viable, and the state could regulate or outlaw abortions in the interest of the potential life except when necessary to preserve the life or health of the mother.
Justice White and Justice Rehnquist’s separate dissents emphasized that the people and the legislatures, not the Court, should weigh this matter. Justice White argued, “Its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court….” Justice Rehnquist believed that the majority had misconstrued “privacy” and argued that “[t]he Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under the standard….”
Abortion in the Supreme Court Post-Roe
The decision in Roe faced a great deal of controversy, and 46 states needed to change their abortion laws as a result of the holding. Almost 30 years later, the Supreme Court revisited the issue of abortion in Casey v. Planned Parenthood (1992). The Casey court kept three finding made in Roe:
- Women have the right to abort pre-viability without undue interference from the state
- The state may restrict abortion post-viability
- The state has a legitimate interest in protecting woman’s health and life of the fetus
In Gonzales v. Carhart (2007), the Court upheld a federal statute that banned partial-birth abortions. This was the first time since Roe that the Supreme Court upheld a ban on a type of abortion.
In Whole Women's Health v. Hellerstedt, the Court found that "[t]wo provisions in a Texas law – requiring physicians who perform abortions to have admitting privileges at a nearby hospital and requiring abortion clinics in the state to have facilities comparable to an ambulatory surgical center – place a substantial obstacle in the path of women seeking an abortion, constitute an undue burden on abortion access, and therefore violate the Constitution." For more on the impact of Hellerstedt, see this Harvard Law Review note.