Roe challenged a Texas law making abortion illegal except by a doctor’s orders to save a woman’s life.
A pregnant woman’s right to choose whether or not to have an abortion is protected by the right to privacy protected by the Due Process Clause of the Fourteenth Amendment.
Roe alleged that the Texas law was unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
Does the Constitution recognize a woman’s right to terminate her pregnancy by abortion (rendering the Texas law unconstitutional)?
Yes, a woman’s right to terminate her pregnancy by abortion is protected by a fundamental right to privacy inherent in the Due Process Clause of the Fourteenth Amendment.
The Court has no constitutional basis for declaring this new constitutional right. The legality of abortion should be left with the people and the political processes the people have devised to govern their affairs.
The drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.
The Court’s decision is a permissible interpretation of the doctrine of substantive due process, which says that the Due Process Clause’s protection of liberty extends beyond simple procedures and protects certain fundamental rights.
While the Court is correct in finding that the right to choose to have an abortion, it would be better to derive it from the Ninth Amendment, which states that the fact that a right is not specifically enumerated in the Constitution shall not be construed to mean that American people do not possess it.
Although the Constitution does not explicitly mention any right of privacy, the Court has previously recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. The concept of a constitutional right to privacy was intimated in earlier cases such as Griswold v. Connecticut (1965) (involving reproductive autonomy with the use of contraception). This right of privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy because denying a woman this choice could cause her mental, physical, and psychological harm associated with an unwanted child.
But a woman’s right to privacy is not absolute. Where certain fundamental rights are involved, the Court has held that regulation limiting these rights may be justified by a compelling state interest if legislative enactments are narrowly drawn to express only the state interests at stake. The Court held that there were two governmental interests sufficiently compelling to permit states to impose some limitations on the right to choose to have an abortion: 1) protecting the mother’s health and 2) protecting the life of the fetus.
As such, in the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.