Lex Rex Ph

On Abortion: Roe v Wade Digest

Instruction: Give particular attention to the judicial reasoning of the court and how they decided access to abortion was a legally-protected right.


Jane Roe

  • a pregnant single woman
  • brought a class action challenging a Texas laws that requires women to secure medical advice first before availing abortion on the grounds that it violates Constitutional right


  • a physician
  • had 2 pending abortion cases against him

Couple Mr. and Mrs. Doe

  • a childless married couple
  • wife not being pregnant
  • grounds:
    • future possibilities of contraceptive failure
    • pregnancy
    • unpreparedness for parenthood
    • impairs wife’s health


District Attorney of Texas


Opinion delivered by Justice Blackmun:   

Regarding Dr. Hallford

Par 25: Dr. Hallford’s arrests in the past for violation of State’s abortion laws:

  • make no immediate threat to any federally-protected right that can be asserted in his defense against the state prosecutions.
  • no allegation of harassment
  • no bad faith prosecution
    Without these 3 above, a defendant cannot challenge in federal court that statutes under which a State is prosecuting him.
    But Dr. Hallford seeks to assert his status as a ‘potential future defendant’ for standing purposes in the Court. But the Court sees no merit in that distinction (Par 26) and his complaint in intervention should be dismissed (Par 27).
  • Lower court’s granting of relief / did not dismiss his complaint in intervention -> Dismissed by SC
  • Declaratory relief = action to determine construction or validity. Is an action by any person interested in a written instrument to determine any question of its construction or validity arising from such instrument.
  • Injunctive relief, also known as an injunction, is a remedy which restrains a party from doing certain acts or requires a party to act in a certain way.

Regarding Mr. and Mrs. Doe

Does’ Contention: At first, no desire to have children, and was medically advised to avoid pregnancy, plus other ‘personal reasons.’ They fear that she will become pregnant and may have to terminate the abortion which they may not avail under the Texas law.

– Their ‘immediate and present’ injury is only an alleged detrimental (causing harm) effect upon their marital happiness because they are (1) forced to refrain from normal sexual relations (2) or endangering Mrs. Does’ health through a possible pregnancy.
– The phrasing of their argument is of speculative character. It rests upon a future speculative contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible impairment of health. Any one of these or all may not take place. These bare allegations are insufficient to pose an actual case or controversy. 
– We affirm the dismissal of the District Court.

[Recap] Requisites of Judicial Review

  1. Actual case or controversy
  2. Locus Standi
  3. Question raised at the earliest opportunity
  4. Lis mota of the case

Regarding Roe [Main Discussion]

Appellant’s Thrust/Attack against Texas Statutes

  1. They improperly invade a right of the pregnant woman – the right to terminate her pregnancy within the bounds of privacy. This is grounded on the concept of ‘personal liberty’ embodied in the Fourteenth Amendment’s Due Process Clause;
  2. Texas statutes invades personal, marital, and sexual privacy said to be protected by the Bill of Rights and its penumbras.

Reason 1: Medical and Legal History Favors Abortion

  1. Ancient Attitudes – Persian empire criminalized abortions but Greek and Roman empires resort to it without hesitation. Greek and Roman law afforded little protection to the unborn and abortion was only prosecuted when it violated the rights of the father to his child. Ancient religion did not bar religion. Laws prohibiting abortion except when mother’s life is threatened is not a law found in the ancients or common law. These laws were only effected in the later part of the 19th century.
  2. Hippocratic Oath – is the ethical guide of the medical profession from an ancient Greek considered the Father of Medicine. The Oath contains, “I will not give to a woman a pessary to produce abortion…” But the Greeks did not contest abortion and even commended it. Dr. Edelstein that the inclusion of the anti-abortion phrase was only due to the Pythagorean and Christian influence which later on gained popularity.
  3. Common Law – It is undisputed in the common law that abortion before the recognizable movement (“quickening”) of the fetus, usually from 16th to 18th week of pregnancy, is not an indictable offense. This law emanates from a confluence of various disciplines revolving around the concept of where life begins. These earlier concepts revolve in either:
    • When the fetus becomes a recognizably human
    • When the fetus is infused with a ‘soul’ or is ‘animated’
      Early English law held that these happen somewhere between conception and live birth. Aquinas and Bracton’s teachings revolve around the idea that ‘movement’ is the essential principle of life. Such idea made its way to the common law system. However, uncertainty about the precise time of animation held these ideas into question.
    • Abortion of a quick fetus was punished either as a felony or lesser crime in common law – but this is still disputed. Coke’s position is that it is a ‘misprision’ or ‘misdemeanor.’
    • English law – In 1803, England made abortion of a quick fetus a capital crime under the Lord Ellenborough’s Act, but provided lesser penalties for abortion before quickening.
    • Parliament enacted Abortion of 1967 permitting abortion if (a) it will risk the life of the pregnant woman or any exiting children in the family, or (b) there is substantial risk that the child will suffer from abnormalities when born.5.  American law – adopted the pre-existing English common law.
    • Law in the States before WWII
      • Connecticut was the first State to adopt in 1821 but abortion before quickening was made a crime only in 1860.
      • New York enacted anti-abortion laws in 1828 in 2 respects: (a) Punishing destruction of unquickened fetus as a misdemeanor and (b) criminalizing abortion of quickened fetus as second-degree manslaughter. However, it legalized ‘therapeutic abortion’ where the mother’s health takes precedence when continued conception will prejudice her health.
      • Texas also received the common law in 1840.
    • After the war, legislation replaced common law in most states which punished severely abortion after quickening but were lenient before quickening.
    • Gradually, the distinction over the quickening disappeared and by 1950’s, majority banned abortion in whatever manner, unless done to preserve the health of the mother.
  4. American Medical Association. AMA shared the anti-abortion mood in the 19th century and appointed the AMA Committee on Criminal Abortion in May 1857 to investigate criminal abortion ‘with a view to its general suppression.’
    • In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion.
    • Conclusion: ‘We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less.’
    • One of the recommendations is that before a physician to induce abortion, it must have a concurrent opinion of another respectable consulting physician, with the view of the child’s safety and the attention of religious groups.
    • In 1970, the Committee noted polarization,  divisions, differing opinions, and a feeling that this controversy will continue. The House of Delegated, in that year, adopted preambles which emphasized the following:
      • The best interests of the patient
      • Sound clinical judgment
      • Informed patient consent, not just mere acquiescence
      • Must be performed by a licensed physician in an accredited hospital only after consultation with two other physicians and in conformity to state law
      • No party in the procedure shall be required if it violates personally held moral principles
  5. American Public Health Association. In Oct 1970, the APHA adopted the following 5 standards for abortion services.
    • Abortion referral must be rapid and simple
    • Counseling must function to simplify and expedite abortion
    • Psychiatric consultation must not be mandatory
    • Abortion counselors may vary from trained, skilled doctors, or sympathetic volunteers
    • Contraception and/or sterilization should be discussed with each abortion partient 3 factors pertinent to life and health risks associated with abortion:
      1. Skill of physician
      2. Environment where abortion is performed
      3. Duration of pregnancy, as confirmed by uterine size and confirmed by menstrual history
  6. American Bar Association. In February 1972, the ABA House of Delegates approved the Uniform Abortion Act with 17 opposing votes.

3 reasons to explain abortion laws in the 19th century

  1. Victorian social concern to discourage illicit sexual conduct – This argument is not used by Texas nor taken seriously by courts. The law also failed to distinguish married and unwed mothers.
  2. Medical dangers of abortion – abortion was criminalized because of the high mortality for those undergoing the abortion procedure. However, the advent of antibiotics in the 1940’s and advancements of modern medicine made abortion safer today. The State’s primary concern before was to protect the pregnant woman.
    – Modern medical techniques altered this situation. Mortality rates for women undergoing early abortion appear to be as low or lower than the rates for normal childbirth. The State’s primary interest is that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety of the patient. High mortality rates in illegal abortion clinics strengthens the State’s interest.
    – Antiobiotics
    – Dilation
    – CurettageThe
  3. The State’s interest extends to prenatal life. Only when the life of the mother is at stake should the interest of the fetus not prevail.
    • Parties who are in favor of abortion contend that most state laws were designed to protect the woman, and not the prenatal life. In addition, there is absence of legislative history in support of the latter.

Reason 2: Right of Privacy Encompasses a Woman’s Right to Terminate Her Pregnancy

  • The Constitution does not explicitly mention any right to privacy but in a line of decisions, the Court has recognized that right of privacy exists under the Constitution in varying contexts such as in the First Amendment, Fourth and Fifth, Penumbras of the Bill of Rights. Only personal rights deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ are included in this guarantee of personal privacy. It extends to activities relating to marriage, procreation, contraception, family, child rearing, and education.
  • The right to privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
  • If a State denies abortion, it will be detrimental to the right of choice of the pregnant woman. Medical harm may be involved in early pregnancy.
  • Maternity may force upon the woman a distressful life and psychological harm. Mental and physical health may be taxed by child care. The family may be unable to provide support.
  • Court: We do not agree that the woman may terminate her pregnancy at any time. The privacy right cannot be absolute. Right of privacy does not always mean that one has all the rights to her body. State interests must also be considered. Right to privacy is subject to limitations and those interests where the State would need to protect health, medical standards, and prenatal life.
  • “Fundamental rights” may only be limited by compelling State interests.

Reason 3: Appellee’s [Texas State] Argument Failed to Meet the Compelling State Interest Requirement

  • (A) Appellee failed to meet to demonstrate that the Texas’ infringement upon Roe’s rights (to privacy and abortion) was necessary to support a compelling state interest.
    • Appellee’s argument: Protection of prenatal life is the compelling state interest
    • Appellee and Amici: Fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment
    • The Constitution does not define ‘person’ in so many words but none so far indicates, with any assurance, that it has any prenatal application.
    • 19th century practices persuades us that ‘person’ in the Fourtheenth Amendment does not include the unborn.
  • (B) The pregnant woman’s right to privacy is not isolated to herself only.
    • Texas argues that life begins at conception but this is a difficult question that we need not resolve because respective disciplines also cannot arrive to a consensus.
  • There is also wide divergence among religious and philosophical circles such as the Stoics, Jewish faith, Protestant community, and Catholics.
  • In criminal abortion area, the law has been reluctant to endorse any theory where life really begins. In most States, recovery for prenatal injuries are only sustained upon if the fetus is viable or at least quick.
    – Under the law, personal interest only exists upon live birth and the unborn has never been recognized as persons in the whole sense.
  • We do not agree that by adopting only one theory of life, Texas may override the rights of the pregnant woman. But the State still has interests over the health of the pregnant woman especially as she approaches term.
  • Under medical knowledge, the State’s legitimate interest as to the health of the mother is approximately at the end of the first trimester. Abortion in the first trimester has lower mortality than normal childbirth.
  • ‘Compelling Point’ of the State is NOT yet existing when the consulting physician medically approves abortion and patient freely affirms such. If that decision exists, abortion should be free from the interference of the State.
  • ‘Compelling Interest’ only BEGINS at the point of viability. Meaning, that the fetus has the capability to have a meaningful life outside the womb. Here, the State may proscribe abortion except when the health of the mother is at stake.

Summary and Decision:

  1. Texas’ anti-abortion law that only exempts abortion if it’s detrimental to the health of the mother violates the Due Process Clause of the Fourteenth Amendment.
    • Stage prior to the end of first trimester – decision must be left to the physician.
    • Stage subsequent to the end of first trimester – State may regulate abortion to protect the mother’s health.
    • Stage subsequent to viability or “quickening” (where fetus has detectable movements)- State may regulate or even proscribe abortion, except when mother’s life is at stake.
  2. We feel that our decision is consistent with the weight of the respective interests involved:
    • Medical and legal history
    • Lenity of the common law
    • Demands of the problems of our times

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