Roe is a straightforward opinion. In section 8 of Roe, the Court concludes:
"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is. . . ."
In following paragraphs, the Court concluded "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."
Towards the end of Section 8, the Court explains how it will review the case by stating "Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest' . . ." The Court is explaining that "the Fourteenth Amendment's concept of personal liberty" is a "fundamental right" held by its citizens. Since the "concept of personal liberty" is a "fundamental right" the Court will apply its "strictest scrutiny" of the state law and it must find a "compelling" state interest to uphold the state law.
In section 9, the Court summarizes the case they will review: "The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented "several compelling justifications for state presence in the area of abortions," the statutes outstripped these justifications and swept "far beyond any areas of compelling state interest." 314 F. Supp., at 1222-1223. Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State's determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation."
Next, the Court wrestled with the determination of "person" under the amendment.
In section 10, the Court reaches its opinion. It states:
"In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches [410 U.S. 113, 163] term and, at a point during pregnancy, each becomes 'compelling.'"
"With respect to the State's important and legitimate interest in the health of the mother, the 'compelling' point, in the light of present medical knowledge, is at approximately the end of the first trimester."
"With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably 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 [410 U.S. 113, 164] during that period, except when it is necessary to preserve the life or health of the mother."
In the beginning of Roe, the Court states:
"Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we [410 U.S. 113, 117] have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York, 198 U.S. 45, 76 (1905): '[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.'"
The Court in Roe understood the significance of its opinion. It did not take this case lightly. The use of the 14th amendment (one of the slave amendements) for this case is appropriate in my view. Years ago, I reached the same conclusion about when a fetus has legal rights under the Constitution without reading Roe. As a result, I accept Roe as good Constitutional law.
On the other hand, personally, I cannot support abortion after conception--at any time under any circumstances. |
