2. The Right to an Abortion and the Trimester Framework
19. The decision established a woman’s constitutional right to an abortion. The Court framed the discussion by acknowledging the sensitive, deeply held, and diverse views on the topic of abortion. However, it suggested, not without criticism by some scholars (Myers 1029 and n. 29), that the law historically was more permissive regarding abortion, especially for abortion performed during the early stages of pregnancy (Roe v Wade 140–41). The Court canvassed Greek and Roman law, English and US statutes, and the medical and legal establishments’ positions on abortion. This analysis supported the Court’s trimester framework set forth later in the opinion (ibid 165). The references to English statutory and case law, in particular, ‘bolstered its own case that the US Constitution created a right to an abortion, even though the Court never explained why foreign law ought to control the meaning of the Fourteenth Amendment’ (Calabresi and Zimdahl 872).
20. The Court also explored the states’ historical reasons for regulating abortion. It rejected the idea that abortion laws were meant ‘to discourage illicit sexual conduct’. After all, the laws applied to married women as well as unmarried women (Roe v Wade 148). In addition, Texas did not justify its law on this basis (ibid 148).
21. Instead, the Court focused on the state’s interests in protecting women’s health and fetal life, both of which were sufficient reasons to regulate abortion (ibid 162). These ‘separate and distinct’ interests ‘grow in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling”’. (ibid 162–63).
22. With regards to women’s health, the Court acknowledged that abortion used to be ‘hazardous . . . for the woman’, especially before the arrival of antisepsis (ibid 148–49). But foreign experiences, specifically in England and Wales, Japan, Czechoslovakia, and Hungary, suggested that the danger was minimal, at least for abortion performed prior to the end of the first trimester (ibid 149 and n. 44). While the risks were few, the government still had an interest in ensuring abortion is performed ‘under circumstances that insure maximum safety for the patient’ (ibid 149–50). In addition, as ‘the risk to the woman increases as her pregnancy continues . . . the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy’ (ibid 150).
23. The Court also acknowledged the state’s interest in protecting potential human life (ibid 150), although the Court mentioned ‘some scholarly support’ for the view that this was not originally a purpose of these laws (ibid 151). Nevertheless, the Court noted that the pregnant woman was not ‘isolated in her privacy’. Consequently, ‘it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of . . . potential human life becomes significantly involved’ (ibid 159).
24. The Court did not resolve when life begins, noting ‘the wide divergence of thinking on this most sensitive and difficult question’ (ibid 159–60). The Court instead focused on ‘viability’—the ‘interim point’ between conception and birth when the fetus is ‘potentially able to live outside the mother’s womb, albeit with artificial aid’ (ibid 159). In 1973, viability was ‘usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks’ (ibid 160). The Court also did not call the unborn fetus ‘a “person” within the language and meaning of the Fourteenth Amendment’, because the Constitution lacked a definition of person, the Constitution used the word ‘person’ in a way that suggested it did not include the unborn, and the history of abortion practices suggested a different interpretation was appropriate (ibid 156–58).
25. While the government had legitimate interests in regulating abortion, the Court recognized that an unwanted pregnancy affected a woman’s life tremendously. The Court identified a range of harm, including ‘specific and direct harm’ to her health, ‘a distressful life and future’ from additional children, ‘psychological harm’, health implications from caring for children, distress from bearing an unwanted child, and the stigma of unwed motherhood (ibid 153). Consequently, the right of privacy, ‘founded in the Fourteenth Amendment’s concept of personal liberty’, was ‘broad enough to encompass a woman’s decision whether or not to terminate her pregnancy’ (ibid 153, 164).
26. The ‘fundamental’ right of privacy, which after Roe v Wade encompassed the abortion decision, was itself a court-created concept. As the Court acknowledged, ‘The Constitution does not explicitly mention any right of privacy. . . . [H]owever, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.’ The Court cited cases that found ‘the roots of that right’ in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, as well as in the penumbras of the Bill of Rights. One such case was Griswold v Connecticut; that case had invalidated a criminal law that prohibited married couples from using contraceptives and made their doctors liable for aiding and abetting. ‘These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty”, . . . are included in this guarantee of personal privacy’ (ibid 152).
27. The woman’s right to an abortion was not absolute. Rather it ‘must be considered against important state interests in regulation’ (ibid 154). Yet the right of privacy could be limited only if the laws were ‘narrowly drawn to express only the legitimate state interests at stake’ (ibid 155). Because a woman’s right to an abortion was a fundamental right, only a compelling interest would do. ‘At some point in the pregnancy’, the government’s ‘important interests in safeguarding health, in maintaining medical standards, and in protecting potential life . . . become sufficiently compelling to sustain regulation of the factors that govern the abortion decision’ (ibid 154).
28. Using ‘present medical knowledge’, the Court determined that the state’s interest in the mother’s health became compelling ‘at approximately the end of the first trimester’. Until that point, women experienced less mortality from abortion than childbirth (ibid 163). After that time, a state could regulate the abortion procedure to protect maternal health, such as by requiring that abortion providers be qualified and facilities be appropriate (ibid 163). The state’s interest in potential life became ‘compelling’ at ‘viability’. At that point, the state could even ‘proscribe abortion . . . , except when it is necessary to preserve the life or health of the mother’ (ibid 163–64). The Court articulated a tripartite framework to guide the states:
29. In light of the foregoing, the Court struck down Art. 1196 of the Texas Penal Code because that provision violated the Due Process Clause of the Fourteenth Amendment (ibid 166; due process). The law restricted abortion too broadly. The statute did not distinguish between pre- and post-viability abortions and only made an exception to save the mother’s life, failing to recognize the mother’s other interests (ibid 164). The Court also said, however, that Texas could define the term ‘physician’ as one ‘currently licensed by the State’, and could require abortion to be performed only by a doctor (ibid 165). The Court did not address whether the Texas statute was too vague (ibid 164).
3. Doe v Bolton
30. The Supreme Court had consolidated Roe v Wade with Doe v Bolton, a case decided by a three-judge panel in Georgia. Plaintiff Mary Doe, also known as Sandra Bensing, was a 22-year-old married pregnant woman. Two of her three children were in foster care, and the third had been placed for adoption, because she was unable to care for them. At the time she filed her lawsuit, she and her husband had separated and she was living with her indigent parents and their eight children (Doe v Bolton, 410 US at 184). Twenty-three others joined her suit, including physicians, nurses, clergy, and social workers (ibid). She sued the Georgia attorney general, Arthur K Bolton, the Fulton County district attorney, and the Atlanta chief of police (ibid 184–85). Georgia’s law was modelled on Section 230.3 of the American Law Institute’s Model Penal Code. Georgia law contained more exceptions than Texas law for when abortion was permissible; however, it required that an abortion be performed in an accredited hospital, that two additional doctors confirm the applicable exception, and that the hospital’s abortion committee approve the procedure.
31. The district court, in a per curiam opinion, held that Doe alone presented a justiciable issue (Doe, 319 F Supp at 1054). It then held that the statute violated her right to privacy because the law limited the reasons for an abortion, and the court invalidated those parts of the statute (ibid 1055–56). However, the court upheld the statutory provisions that advanced Georgia’s interest in the mother’s health and the ‘potential of independent human existence’, such as the provision that required abortion be performed in a licensed and accredited hospital (ibid 1055). Like the district court in Roe v Wade, it too granted a declaratory judgment but refused an injunction (ibid 1057).
32. The US Supreme Court said: ‘That opinion [Doe v Bolton] and this one [Roe v Wade], of course, are to be read together’ (Roe v Wade 165). The same seven-justice majority invalidated various parts of the Georgia law. Although historians have given Doe v Bolton little attention compared to Roe v Wade, the decision is important for at least four reasons. First, Doe v Bolton arguably prevented the Supreme Court from deciding Roe v Wade on the issue of vagueness instead of the issue of privacy. The Georgia law did not raise the same vagueness issues because of its specificity (Hurwitz 240).
33. Second, Doe v Bolton illustrated more precisely than Roe v Wade the limits of the state’s efforts to protect the mother’s health. For example, the Supreme Court invalidated the requirement that the Joint Commission on Accreditation of Hospitals approve the abortion facility because such a requirement was not ‘based on differences that are reasonably related to the purposes of the Act in which it’s found’ (Doe v Bolton, 410 US at 194–95). The hospital committee process and the need for two physicians to confirm the applicable exception were also unacceptable; no other medical procedure had the same requirements (ibid 197, 199). The residency requirement was unacceptable under the Privileges and Immunities Clause, Const. Art. IV, § 2 (US) (ibid 200). One commentator thought Doe ‘extends Roe by warning that just as states may not prevent abortions by making their performance a crime, they may not make abortions unreasonably difficult to obtain by prescribing elaborate procedural barriers’ (Wasserman 239).
34. Third, Doe v Bolton arguably allowed the Court to frame the right as that of the doctor, or that of the doctor and the woman acting together, which some scholars have criticized (Hunter 147, 187, 194). The Court said in Roe v Wade:
35. The Supreme Court, contrary to the federal district court in Georgia, found the physicians in Doe had standing because they were threatened with criminal prosecution (Doe v Bolton, 410 US at 188–89), whereas Dr Hallford in Roe v Wade lacked standing because the ongoing state prosecution triggered the abstention doctrine that stops federal courts from intervening in pending state cases.
36. Fourth, Doe v Bolton made clear that while a woman does not have an absolute right to an abortion on demand throughout her pregnancy (ibid 189), doctors could easily satisfy statutes that required them to attest that the abortion was necessary for the woman’s health. The Court said: