Roe v. Wade: Is Abortion a Criminal Act?


Is abortion a criminal act? Or do women have the legal ability to justify whether they keep their baby or not?  In the United States, Supreme Court case of Jane Roe v. Henry Wade, with a 7-2 decision, concluded that women have the legal right to have an abortion for it is under the Fourteenth Amendment of the U.S. Constitution.

Jane Roe, a single pregnant lady, imposed the criminal abortion laws for the state of Texas, which state that a mother may be proscribed to abort the child on the medical advice from the Doctor that it will save the mother’s life.  Along with Roe, Hallford, a licensed a physician and the Does, a married couple without a child, were allowed to intervene on the case.  The Does attacked the laws based on potential situations that there could be contraceptive failure, unplanned parenthood or the damage to the wife’s health.  Halford and the Does were not able to sue, but Roe have the ability to.

“State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to terminate her pregnancy.  Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentially of human life, each of which interests grows and reaches a “compelling” point at various stages of the woman’s approach to term.”  Clarified in the Syllabus of Roe v. Wade Supreme Court Case.  For an abortion to take place in this situation, a physician must have a license in that state, which therefore concludes the syllabus of this case.

Justice Blackmun delivered the opinion of the court which he stated “We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.  One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion…Our Task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.”  Justice Blackmun addressed these concerns to the court, describing the process that they will go through to achieve a decision.

On March of 1970, Roe took action to enforce that the Texas’s criminal abortion laws were unconstitutional.  Roe at the time, pregnant and unmarred, wanted to end her pregnancy through abortion.  Although, she was unable to receive an abortion do to it being illegal, unless she was in harms away from the pregnancy.  Her case is that the Texas statutes invade her personal privacy rights, which is protected by the five amendments of the constitution, which are the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.  Hallford, previously arrested for violating Texas abortion statues, intervened stating that, “He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196.  He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients’ rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, and Fourteenth Amendments.”  Along with Roe and Hallford, the Doe couple, stood alongside Roe, describing that Mrs. Doe had a “neural-chemical” disorder which meant she was not advised to have children until it improved.  Mrs. Doe has stopped using birth control pills, meaning that if she were to become pregnant, she would want to perform an abortion with a licensed physician in safe, medical conditions.  The Does were dismissed because they did not have enough facts to support their standing, thus only Roe and Hallford had standing to sue.

The next issues confronted are those of Roe and the Does on if they have the shown that they have “personal stake in the outcome of the controversy”.  Described by Blackmun, “We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.”  However, Hallford is not in the same boat as Roe.  Blackmun continues, “Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court.  Although he stated that he has been arrested in the past for violating the State’s abortion laws, he makes no allegation of any substantial an immediate threat to any federally protected right that cannot be asserted in his defense against the state prosecutions…Dr. Hallford seeks to distinguish his status as a present state defendant from his status as a “potential future defendant,” and to assert only the latter for standing purposes here…Dr. Hallford’s complaint in intervention, therefore, is to be dismissed.”

Continuing on, a comment is made about the age of the law.  The abortion laws in the majority of the states are old and were made in the 19th century.  This gives thought to how relevant this laws are now.  Christian theology plays a major role in this law for it was the guidelines of the definition of abortion.  Understanding the history of where the term abortion came from, we move on to the position of the American Public Health Association.

Defined by Blackmun, “In October, 1970, the Executive Board of the APHA adopted Standards for the Abortion Services.  These were five in number:

  1. Rapid and simple abortion referral must be readily available through state and local public health departments, medical societies, or other nonprofit organizations.
  2. An important function of counseling should be to simplify and expedite the provision of abortion services; it should not delay the obtaining of these services.
  3. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications, and not on a routine basis.
  4. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors.
  5. Contraception and/or sterilization should be discussed with each abortion patient.”

These standards helped the court as guidelines for the case.  For 1970 being the same year that these standards were posted and the current case.  It is safe to say these standards are relevant to this century.

As the public challenges state abortion laws, these laws are considered to be pro-life.  But the state claims that these laws are put in place to protect woman.  However, pointed out by the viewers of this statutes they find that, quoted by Blackmun, “a pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.”  Adding on to this interest is the right of privacy.  Blackmun coincides with “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, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy…On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.”  The court recognizes the right of privacy and that some states assert different interests to protect life but these cannot be complete.  The court concludes that the right of privacy allows the decision to abort and using other cases to justify this statement.

“Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins…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.” Quoted by Blackmun on the State’s issue and interest.

Justice Stewart concurs, that the court is correct in their decision.  A woman has the right to privacy and her decision.  Texas’s statues conflicted with this right in the Constitution.  Stated by Stewart, “Accordingly, I join the Court’s opinion holding that that law is invalid under the Due Process Clause of the Fourteenth Amendment.”

Justice Rehnquist than dissents on this case.  He discusses how he disagree with the invalidation of the Texas statue.  Rehnquist informs “The Court’s opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy…I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy.”  Rehnquist makes his voice heard digging into the Court’s decision.  Describing how that the privacy matter is not one at all and that Texas statute was stuck down by this case for it was still constitutional.  However, this dissent did not change the decision.

To conclude, Roe won in a 7-2 decision.  The court’s decision, is that a woman has the right to abortion because it falls into the privacy matter of the Fourteenth Amendment.  Although Rehnquist dissented and made valid points in the justification of this case, the decision did not change.


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