The appellant attacked 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 statutes make 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. Similar statutes are in existence in a majority of the States. Jane Roe, a single woman, who was residing in Texas instituted this federal action against the district attorney. She argued that the Texas criminal abortion statutes were unconstitutional on their face. Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion performed by a competent, licensed physician, under safe, clinical conditions; that she was unable to get a legal abortion in Texas. She claimed that the Texas statutes were unconstitutionally vague that they abridged her right of personal privacy protected by the Constitution.
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, a state criminal abortion statute of the current Texas type is violative of the Due Process Clause of the Fourteenth Amendment. 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. 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 it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
Texas, by the statute challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not private in the ordinary usage of that word. Nor is the privacy that the Court finds here even a distant relative of the freedom from searches and seizures, which the Court has referred to as embodying a right to privacy.
The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the liberty protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. The Court recognized the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. That right necessarily includes the right to a woman to decide whether or not to terminate her pregnancy.
With respect to the State’s important and legitimate interest in potential life, the compelling point is at vitality. This is so because the fetus then has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period. Measured against these standards, 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 to 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, cannot survive the constitutional attack made upon it here.