Roe v. Wade (1973)


The Supreme Court case that held that the Constitution protected a woman’s right to an abortion prior to the viability of the fetus; thus, government regulation of abortions must meet strict scrutiny in judicial review.


The case involved a Texas statute that categorically prohibited abortion except where to save the life of the pregnant woman. The Supreme Court, in a decision written by Justice Blackmun, recognized a privacy interest in abortions. Although the Constitution did not explicitly mention abortions or privacy in general, previous cases pointed to zones of privacy that were protected by the Constitution: “Only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in this guarantee of personal privacy.” These fundamental rights were protected by substantive due process, and the courts will apply the strict scrutiny test: in order for the legislation to be valid, there must be a compelling state interest, and the statute must be narrowly tailored to accomplish this end. Non-fundamental rights required only the application of the rational basis test.

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. That meant that the burden of proof went to the state to show the court that there was a compelling interest to which the statute was narrowly tailored. The Court identified two state interests, both of which became compelling after the first trimester of a woman’s pregnancy: the interest of the potential life of the fetus and the woman’s health interest.

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….”