abortion





ROE V. WADE AND THE RIGHT TO CHOOSE

"At the heart of liberty is the right to define one\'s own concept of existence, of meaning,
of the universe, and of the mystery of human life. Beliefs about these matters could not
define the attributes of personhood were they formed under compulsion of the State."1
U.S. Supreme Court Justices O\'Conner, Kennedy and Souter Planned Parenthood of
Southeastern Pennsylvania v. Casey
Abortion in the United States Before Roe
When Roe v. Wade was decided in January 1973, abortion except to save a woman\'s life
was banned in nearly two-thirds of the states.2 Laws in most of the remaining states
contained only a few additional exceptions.3 It is estimated that each year 1.2 million
women resorted to illegal abortion,4 despite the known hazards "of frightening trips to
dangerous locations in strange parts of town; of whiskey as an anesthetic; of \'doctors\' who
were often marginal or unlicensed practitioners, sometimes alcoholic, sometimes sexually
abusive; unsanitary conditions; incompetent treatment; infection; hemorrhage;
disfiguration; and death."4
The Constitutional Development of the Right to Privacy
During the half century leading up to Roe, the Supreme Court decided a series of
significant cases in which it recognized the existence of a constitutionally protected right
to privacy that keeps fundamentally important and deeply personal decisions concerning
"bodily integrity, identity and destiny" largely beyond the reach of government
interference.6 Citing this concern for autonomy and privacy, the Court struck down laws
severely curtailing the role of parents in education, mandating sterilization, and
prohibiting marriages between individuals of different races.7
Important aspects of the right to privacy were established in Griswold v. Connecticut8,
decided in 1965, and in Eisenstadt v. Baird, decided in 1972.9 In these cases, the
Supreme Court held that state laws that criminalized or hindered the use of contraception
violated the right to privacy. Having recognized in these cases "the right of the individual
to be free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child,"10 the Court held in
Roe that the right to privacy encompasses the right to choose whether to end a
pregnancy.11
The Court has reaffirmed this holding on multiple occasions throughout the past 25
years,12 noting in 1992 that "[t]he soundness of this . . . analysis is apparent from a
consideration of the alternative."13 Without a privacy right that encompasses the right to
choose, the Constitution would permit the state to override not only a woman\'s decision
to terminate her pregnancy, but also her choice to carry the pregnancy to term.14
The Roe Compromise
Although Roe invalidated restrictive abortion laws that disregarded women\'s right to
privacy, the Court recognized a state\'s valid interest in potential life.15 That is, the Court
rejected arguments that the right to choose is absolute and always outweighs the state\'s
interest in imposing limitations.16 Instead, the Court issued a carefully crafted decision
that brought the state\'s interest and the woman\'s right to choose into balance.
The Court held that a woman has the right to choose abortion until fetal viability, but that
the state\'s interest generally outweighs the woman\'s right after that point.17 Accordingly,
after viability -- the time at which it first becomes realistically possible for fetal life to be
maintained outside the woman\'s body -- the state may ban any abortion not necessary to
preserve a woman\'s life or health.18
25 Years of Roe: A Better Life for Women
By invalidating laws that forced women to resort to back-alley abortion, Roe was directly
responsible for saving women\'s lives. It is estimated that as many as 5000 women died
yearly from illegal abortion before Roe.19 Since the legalization of abortion in 1973, the
safety of abortion has increased dramatically. The number of deaths per 100,000 legal
abortion procedures declined more than five-fold between 1973 and 1991.20 In addition,
Roe has had a positive impact on the quality of many women\'s lives. Although most
women welcome pregnancy, childbirth and the responsibilities of raising a child at some
period in their lives, few events can more dramatically constrain a woman\'s opportunities
than an unplanned child. Because childbirth and pregnancy substantially affect a woman\'s
"educational prospects, employment opportunities, and self-determination," restrictive
abortion laws narrowly circumscribed women\'s role in society and hindered women from
defining their paths through life in the most basic of ways.21 In the 25 years since Roe,
the variety and level of women\'s achievements have reached unprecedented levels. The
Supreme Court recently observed that "[t]he ability of women to participate equally in the
economic and social life of the Nation has been