Appellant attacks the Texas statutes alleging that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy.
Only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are protected by the Constitution.
The Texas statute makes it a crime to procure an abortion or to attempt one, except with respect to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother. Appellant challenges this statute for violation of the personal liberty embodied in the Fourteenth Amendment.
Does the Texas statute that makes it a crime to procure an abortion or to attempt one, except with respect to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother?
Yes, the Texas statute in restricting legal abortions to those procured or attempted by medical advice for the purpose of saving the life of the mother sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, ‘saving’ the mother’s life, the legal justification for the procedure. The statute, therefore, violates the Constitution.
Justice Rehnquist and White
Rehnquist: If the Court means by the term privacy no more than the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of liberty protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our prior decisions. That liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The Fourteenth Amendment places a limit on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, such a statute would lack a rational relation to a valid state objective.
White: Nothing in the language of the Constitution supports the court’s judgment. The Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it is unacceptable.
The right of privacy includes the abortion decision, but this right is not unqualified and must be considered against important state interests in regulation. Where certain fundamental rights are involved, the Court has held that regulation limiting these rights may be justified only by a compelling state interest and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Texas may override the rights of the pregnant woman that are at stake. The State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman. With respect to the State’s important and legitimate interest in the health of the mother, the compelling point is at approximately the end of the first trimester. It follows that a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.