Roe v. Wade 410 U.S. 113 (1973) Doe v. Bolton 410 U.S. 179 (1973)

Author:Kenneth L. Karst

Page 2284

In these cases the Supreme Court confronted the emotionally charged issue of abortion. The decisions invalidated two states' ABORTION laws?and, by inference, similar laws in a majority of states. As a result, the Court was plunged into prolonged and intense controversy, ranging from questions about the bearing of morality on constitutional law to questions about the proper role of the judiciary in the American system of government. The Court held unconstitutional a Texas law forbidding abortion except to save the pregnant woman's life and also invalidated several features of a Georgia law regulating abortion procedures and limiting abortion to Georgia residents.

The two women whose fictitious names grace the cases' titles were pregnant when they filed their actions in 1970, but not at the time of the Supreme Court's decision. The Court nonetheless held that their cases were not moot; rigid application of the MOOTNESS doctrine would prevent appellate review of an important issue that was capable of repetition. Nine doctors were also held to have STANDING to challenge the Georgia law; the intervention of a doctor under prosecution in Texas was held improper under the equitable ABSTENTION principle of YOUNGER V. HARRIS (1971); and a Texas married couple was denied standing because the woman had not been pregnant. The Court thus proceeded to the constitutional merits.

The Roe opinion, by Justice HARRY A. BLACKMUN, reviewed the history of abortion laws and the recent positions on abortion taken by medical groups and the American Bar Association, but the Court grounded its decision on neither history nor current professional opinion. Instead, the Court relied on a constitutional right of PRIVACY previously recognized in GRISWOLD V. CONNECTICUT (1965) and now relocated in the "liberty" protected by the DUE PROCESS clause of the FOURTEENTH AMENDMENT. This right included "a woman's decision whether or not to terminate her pregnancy," which decision was a FUNDAMENTAL INTEREST that could be restricted only on a showing of a COMPELLING STATE INTEREST.

The Court identified two state interests that would qualify as "compelling" at different stages in pregnancy: protection of maternal health and protection of potential life. Before discussing these interests, however, the Court dealt with a preliminary question: whether a fetus was a PERSON within the meaning of the Fourteenth Amendment. In an abortion, of course, it is not the state that denies life to a fetus; presumably the point of the Court's question was that if a fetus were a "person," the amendment should not be read to bar a state from protecting it against being aborted. The Court concluded, however, that a fetus was not a "person" in the amendment's contemplation. In reaching this conclusion...

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