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Appendix A SUMMARY OF THE SUPREME COURT DECISIONS ON ABORTIONS ROE v. WADE AND DOE v. BOLTON JANUARY 22, 1973 On January 22, 1973, the Supreme Court of the United States announced two decisions on abortion, Roe v. Wade JL/ and Doe v. Bolton 2/, which together, struck down most prohibitive or restrictive state abortion statutes. The Texas statutes that the court overturned in the Roe case were typical of state legislation on abortion then in existence in a majority of the States. The Texas Penal Code made it a crime to seek an abortion, or to attempt one, except when done as the result of medical advice for the purpose of saving the life of the pregnant woman.3/ The Georgia statutes at issue in Doe v. Bolton had been enacted in 1968 and were based on the American Law Instituted Model Penal Code. The Georgia laws imposed procedural requirements on physicians and hospitals in the performance of abortions. While the Roe decision invalidated most criminal abortion statutes as being unconstitutional and prohibited state inter- vention during the first trimester of pregnancy, the Doe decision went on to outline what the states could do under the Constitution to regulate abortion procedures during the second trimester. In Roe v. Wade, the Court held that it would henceforth be legal for women to obtain abortions during the first trimester of pregnancy without intervention by the state. The Court's opinion stated: (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c) For the stage subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preserva- tion of the life or health of the mother.4/ 128
129 The Roe v. Wade decision was based on the Court's conclusion that there is a fundamenta1, constitutionally guaranteed right to privacy which is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The Court observed: The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. 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 consult at ion .V The majority of the Court lodged this right in the due process clause of the Fourteenth Amendment which forbids the states to "deprive any person of life, liberty, or property without due process of law." In the Court's opinion, the Texas and Georgia statutes limiting abortion operated to deprive pregnant women of liberty without due process, in violation of the Fourteenth Amendment. The Court pointed out that the right of the preg- nant woman is not absolute; while the state cannot override that right without compelling reason, it does have compelling interests in protecting the health of the pregnant woman, and in protecting the "potentiality of life," each of which interests reaches a compelling point as the woman approaches term.6/ The Court concluded that the potential life is not itself a person, implying that it is not entitled to precisely the same Fourteenth Amendment guarantees as the pregnant woman. Nevertheless, the Court recognized the state's interest in protecting the potential life, and held that the state could protect that interest by severely restricting abortion in the final stages of pregnancy. By focusing on the "potentiality of life" as the point at which a legitimate state interest in the fetus may arise, the Court was able to sidestep the controversial issue of defining when life begins. Recognizing the difficulty of arriving at an agreement on this issue, the Court stated that "we need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."TJ Thus, while on the one hand the Court rejected the position that the states have an interest in protecting human life from conception on the basis that "the unborn have never been recog- nized in the law as persons in the whole sense,"8/ at the same time the Court recognized the potential rights of the fetus, in its statement that the state may proscribe abortion in the third trimester "except when it is necessary to preserve the life or health of the mother."9/
130 Two dissenting opinions accompanied the majority opinion in Roe v. Wade. In his dissent, Justice White maintained that the abortion issue should not be decided by "raw Judicial power" but rather by the people through their state legislatures. Justice Rehnquist's dissent was based on three factors: (1) the plaintiff (Roe) was not legally capable of litigating the issue, because it had not been established that she was in her first trimester of pregnancy when the suit was initiated; (2) the issue was not one of "privacy" (which may be infringed only by a compelling state interest), but rather one of "liberty" (which may be infringed by state law if it merely bears a rational relationship to a valid state function); and (3) even if the majority opinion were correct, the Texas laws were not totally unconstitutiona1, but rather unconstitutional only with regard to the earlier stages of pregnancy. In Doe v. Bolton, the Court declared unconstitutional four procedural requirements in the Georgia abortion law. The requirements were that: (1) abortions had to be performed in a hospital accredited by the Joint Commission on the Accreditation of Hospitals: (2) abortion procedures, in all hospitals, had to be approved by a hospital staff abortion committee; and (3) the performing physician's judgment had to be corroborated by independent examinations of the patient by two other licensed physicians. The Court also struck down a fourth section of the law which required that a woman had to be a resident of Georgia in order to obtain a legal abortion within the state, but since Roe v. Wade made legal abortion available in all of the states, the residency decision was of lesser impor- tance. All of these requirements were declared unconstitutional violations of the Fourteenth Amendment. The Court ruled that none of the requirements could be shown to relate reasonably to valid state objectives. In addition, the Court noted that both the second and third procedural requirements were not applied to other types of surgical procedures; and, that the requirements, if complied with, would unduly restrict the right of the physician to practice medicine.
131 FOOTNOTES 1. 410 U.S. 113, 93 S. Ct. 705 (1973). 2. 410 U.S. 179, 93 S. Ct. 739 (1973). 3. 410 U.S. 113, at 117-8. 4. 410 U.S. 113, at 164-5 (1973). The Court's decision to allow state regulation of abortion only after the first trimester of pregnancy was based, in large part, on New York state data from 1970-72, which indicated that maternal mortality associated with first trimester abortions was extremely low. According to the Court's reasoning, since the medical procedures associated with first trimester abortions were so safe, there was no longer valid reason for the states to continue to regulate these abortions. 5. 410 U.S. 113, at 153. 6. Ibid., at 114. 7. Ibid., at 159. 8. Ibid., at 162 9. Ibid., at 164.