Arguments in Roe v Wade

The Issue:  Does the Texas law which makes it a crime to perform an abortion unless it is "necessary" to save the life of the mother violate the Constitution?

Arguments for Roe:

1.  The Texas law infringes upon the right of privacy recognized in Griswold.
---Griswold protected the decision whether or not to bear a child.
---This is a liberty protected by the due process clause, or an unenumerated right protected by the Ninth Amendment

2.  The right to an abortion should be recognized as a fundamental right triggering strict scrutiny because of the great impact childbearing and childbirth has on a woman's life.
---Risk to a woman's health of childbirth (during first trimester, abortions have a death rate that is more than five times lower than the risk of death to mothers from childbirth.)
---Unwanted pregancies disrupt life (financial burdern, psychological burden, physical experience of pregnancy itself, stigma of being an unwed mother)

3.  The Texas law violates the fundamental right of doctors to give medical care.
---State could not deny treatment of venereal disease as a means of discouraging promiscuity
---State could not ban all forms of surgeries 

4.  The Texas law is not supported by a compelling state interest.
---Interest in protecting fetal life not compelling because fetuses have no rights under Texas law and self-abortions are legal (women seen as victims under Texas law)
---Interest in preventing promiscuity is not very important and not closely-tailored to this law
---Interest in protecting mother's health does not justify total ban, only regulation to increase safety of procedure

5.  Fetuses are not "persons" within the meaning of the Fourteenth Amendment.
---Abortions more common in 1868 than in 1973, therefore could be no intent to make fetuses persons
---"Persons" elsewhere in Constitution clearly refers to persons after birth, as it the enumeration (or census) clause.

6.  The Texas law is unconstitutionally vague.
---Doctors have to guess as to whether or not an abortion procedure is criminal (What if it shortens a woman's life?  What if there is a 20% chance that childbirth might result in the mother's death?  What if continued pregnancy increases  significantly the risk of suicide?)

7.  The law is not moot simply because Jane Roe is no longer pregnant.
---Can't get this case decided by Supreme Court in less than nine months, so this fits within exception for cases "capable of repetition, yet evading review"

Arguments for Texas:

1.  There is no right to an abortion in the Constitution.
---No mention in text
---Nothing to suggest that framers of Fourteenth Amendment intended to protect such a right

2.  Griswold protected marital privacy, not the right to choose an abortion
---Abortions are performed in a hospital or clinic by a virtual stranger, not a matter of privacy as in Griswold

3.  Even if the right of privacy is implicated, Texas' law is supported by a compelling state interest.
---Compelling state interest in protecting human life (life is a process that begins at conception and ends at death)
---Who wouldn't say that there isn't a strong interest in banning abortions during the last month of pregnancy, and if that's true, why is the interest less strong a few months earlier? (The response might be that in the early months of pregnancy, the fetus lacks the essential attributes of humanness--such as the ability to have thoughts or experience pain)
---Interest in preserving respect for life, and in not making morally wrong behavior (such as infanticide) more likely

4.  A fetus is a "person" within the meaning of the Fourteenth Amendment, so a statute permitting abortions would "deprive" a person of "life," a practice prohibited.
---(Problem: there's little or no support for this argument and such an interpretation would mean that liberal abortion laws were blatantly unconstitutional)

5.  Texas law is not unconstitutionally vague.
---Any statute has some vagueness, but this one clearer than most
---A statute which allowed abortions if necessary for the "health" of the mother would be more--not less--vague

6.  Challenge is moot because Jane Roe is no longer pregnant


 Exploring Constitutional Conflicts Homepage