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Sam Roche
Professor Finucane
Business Law
7 April 2019
Roe v. Wade
Roe v. Wade is the Supreme Court case that deals with the controversial issue of
abortion. The case involves a Texas woman identified under an alias as Jane Roe who wanted to
terminate her unwanted pregnancy. The problem was at the time of the case, the early 1970’s, it
was illegal to get an abortion in Texas unless the pregnancy endangered the women’s life. Roe v.
Wade is one the most hotly disputed cases in Supreme Court history. The verdict still holds great
importance in today’s society and prompts lots of debate.
The Supreme Court analyzed the medical history of the procedure and the legal views on
abortion when constructing their verdict. The main debates centered around what the
Constitution defines as a “person”, whether or not an unborn individual is subject to the same
rights as a living person, and if the right to privacy includes a woman’s decision to keep or
terminate her pregnancy. The Court eventually came to the 7-2 decision that abortion was a
fundamental right under the United States Constitution. The Court defined what the Constitution
considered a “person” and used the penumbra right of an individual’s right of privacy in the
Ninth and Fourteenth Amendment in their decision especially the Due Process Clause.
The first issue the court had to decide was what is a “person” defined as in the
Constitution. The rights of a person are discussed in depth and is the focus in the Bill of Rights,
but a definition is never explicitly written. Advocates of both sides often argued if an unborn
person is considered a “person” by the Constitution and thus subject to the same rights and
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protections given to all living people. The Court decided that an unborn child is not considered a
“person” by the Constitution and not granted the same protections. The Fourteenth Amendments
protects an individual’s life, liberty, or property without due process of law; since the Supreme
Court decided that an unborn child is not considered a “person,” they are not granted the same
protections.
The Supreme Court also based its decision on the fundamental right to privacy. The right
to privacy is not explicitly written in the Constitution by is considered a penumbra right. A
penumbra right is a group of rights derived from other rights explicitly written and protected in
the Constitution. The concept of a penumbra or unenumerated right is in the Ninth Amendment.
The Ninth Amendment states, “enumeration in the Constitution of certain rights shall not be
construed to deny or disparage other rights retained by the people”. This basically means that
there are certain fundamental rights that are not explicitly written in the Constitution, but the
government still cannot infringe upon them. The Fourteenth Amendment contains the penumbra
or unenumerated right to privacy because of the Due Process Clause. The idea of the right of
privacy was previously established in the Supreme Court case Griswold v. Connecticut. The
Court deemed a women’s choice to keep or terminate her pregnancy is included in the broad
concept of personal privacy. They viewed the choice to keep or end a pregnancy as very personal
and something that the state can not infringe given a normal situation.
Even though the Court ruled that a woman can have an abortion at anytime of the
pregnancy, there allowed some ways for the state to intervene. The only time an individual’s
right to privacy, like an abortion, can be infringed is when compelling there is legitimate state
interest involved. The Court did decide that the overall concept of abortion and the procedure
itself were not in the state’s interest, but they found two instances were intervention would be
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legally justifiable. First, the state has compelling interest in preserving the health, safety, and life
of the pregnant mother. The other is the interest in protecting the potentiality of human life. The
Court viewed that after the first trimester, the interest of the state to intervene in order to protect
the unborn child can be justifiable. They used the reasoning that the further along the pregnancy
is the more legitimate the state’s interest is to protect that potential life. The first trimester was
used as a deadline because medical reviews stated that abortions before the first trimester were
generally safe for the mother. A physician, however, can overrule any state intervention of
whether or not an abortion is necessary for someone if the woman’s life is in danger. Due to this
degree of freedom within the verdict, states can consider the unborn child after the first trimester
as is “capable of living a meaningful life after birth” so any attempts to terminate its future can
be blocked.
