June 3, 2022
Roe v. Wade, What it Actually Says
As promised in my May 27 blog post, this post will summarize what Roe v. Wade says and means, at its most basic level. The post doesn’t reflect my professional opinion about whether the decision is or is not legally correct or my personal opinion about abortion.
- The Fourteenth Amendment to the United States Constitution provides for the concept of personal liberty. Further, the Fourteenth Amendment restricts the ability of the state (government) to interfere with personal liberty.
- The right of privacy, although not specifically mentioned in the Fourteenth Amendment, is a personal liberty protected by it.
- A woman’s decision whether or not to terminate her pregnancy (to have an abortion) is a personal privacy right protected under the Fourteenth Amendment.
- Like other rights in the Constitution, the right to personal privacy, and thus a woman’s right to an abortion, is not absolute. The state may regulate or restrict the right to an abortion for compelling state interests.
- The State has an important and legitimate interest in preserving and protecting the health of the pregnant woman seeking an abortion. Since the abortion procedure becomes increasingly dangerous for the woman as pregnancy advances, the State’s interest in protecting her health increases as the pregnancy advances.
- The State also has an important and legitimate interest in preserving “potential life”. While the decision doesn’t opine on when life starts, potential life begins at conception and ends at birth. The State’s interest in preserving potential life increases as the pregnancy advances and becomes a fetus.
- For the first trimester, the woman’s personal privacy right and abortion decision overrides the State’s interests, which are not yet compelling, in protecting her health or preserving potential life. Thus, during the first trimester, the abortion decision and its effectuation must be left to the pregnant woman and the medical judgment of her attending physician.
- After 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.
- Once a fetus becomes viable, essentially the start of the third trimester, the State’s interest in protecting and preserving potential life becomes compelling. Thus, the State can restrict the woman’s right to personal privacy. Specifically, subsequent to viability, the State may, if it chooses, regulate, and even prohibit, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.