The Court in Roe held that the Constitution protects a woman’s right to terminate her pregnancy in its early stages. The United States, joining the respondents, asked the Court to overrule Roe.
The Due Process Clause of the Fourteenth Amendment protects the woman’s decision to terminate her pregnancy.
The right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear a child shall be recognized.
The Pennsylvania Abortion Control Act of 1982 contains five requirements, which demand a woman seeking an abortion to give her informed consent prior to the abortion procedure; a married woman to notify her husband; a minor to obtain the informed consent of one of her parents, unless the minor does not wish or cannot obtain it. The Court is trying to determine whether the States have the power to impose such requirements in light of the Court’s precedent in Roe, which provides that the Constitution protects a woman’s right to terminate her pregnancy in its early stages.
Can States require a woman seeking an abortion to give her informed consent, a married woman to notify her husband, a minor to obtain the informed consent of one of her parents?
While the Court ultimately said no and reaffirmed Roe, the Court upheld most of the Pennsylvania’s provisions. The Court is obligated to follow precedents because no judicial system could do society’s work if it examines each issue afresh in every case that raised it. Roe’s central rule has never been found unworkable. While Roe has required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, the required determination falls within judicial competence.
Unlike marriage, procreation and contraception, abortion “involves the purposeful termination of a potential life.” The abortion decision must thus be recognized as different in kind from others that the Court has protected under the rubric of privacy and autonomy. Also, the historical traditions of America do not support the view that the right to terminate one’s pregnancy is “fundamental.” Therefore, the Court was mistaken in Roe when it classified a woman’s decision to terminate her pregnancy as a “fundamental right” that could be abridged only in a manner which withstood “strict scrutiny.”
State restrictions on abortion infringes upon a woman’s right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm. Further, such restrictions deprive a woman of the right to make her own decision about reproduction and family planning and implicate constitutional guarantees of gender equality. The Court has held that limitations on the right of privacy are permissible only if they survive “strict” scrutiny. Roe’s requirement of strict scrutiny offers the most secure protection of the woman’s right to make her own reproductive decisions and thus should not be disturbed.
While Roe’s holding shall be upheld, to balance the protected right recognized by Roe and to accommodate the State’s profound interest in potential life, it is necessary to employ the undue burden analysis. An undue burden exists, thus making a provision of law ineffective, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
The rigid trimester framework of Roe should, thus, be replaced. To promote the State’s profound interest in potential life, throughout the pregnancy the State may take measures to ensure that the woman’s choice is informed and the State may also enact regulations to further the health and safety of a woman seeking an abortion. These measures, however, must not be an undue burden on the right. The adoption of the undue burden analysis does not violate the central holding of Roe and a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.