Abortion was practiced during the Greek and Roman eras; their laws offered little protection to the unborn.
The Hippocratic Oath
"I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion."
The Oath originated in a group representing only a small segment of Greek opinion and was not adopted by all physicians.
The common law
An abortion performed before "quickening" (the first recognizable movement of the fetus in utero - 16 to 18 weeks) was an indictable offense.
The American law
Early statutes in the 1800's dealt severely with abortion after quickening but were lenient with it before quickening.
In the late 1800's, the quickening distinction disappeared, and the degree of the offense increased.
In the past several years, a trend toward liberalization of abortion statutes has resulted in less stringent laws.
However, a woman had broader rights to abortion at the adoption of the Con and throughout the early 1800's than she does today.
A TX statute outlaws abortion unless necessary to save the life of the mother.
Procedural History
SCOTUS held law unconstitutional.
Issues
Is a woman's right to an abortion a fundamental right?
What constraints are placed upon a state wishing to enact an anti-abortion law?
Holding/Rule
A woman's right to an abortion is a fundamental right.
A state that wishes to enact an anti-abortion law must make distinctions based upon trimester of pregnancy…
For the state prior to the first trimester, the abortion decision must be left to the medical judgment of the pregnant woman's attending physician.
For the stage subsequent to approximately the end of the first trimester, the state, in promoting its interest in the health of the mother, may, regulate the abortion procedure in ways that are reasonably related to maternal health.
For the stage subsequent to viability, the state in promoting its interest in the potentiality of human life man regulate and even proscribe abortion except where it is necessary for the preservation of the life or health of the mother.
Reasoning
Three state interests have been given to explain anti-abortion laws…
The laws were a product of a social concern to discourage illicit sexual conduct.
No court or commentator has taken this argument seriously.
The laws were intended to protect the safety and life of the mother.
In the past, the procedure was a hazardous one for the woman.
Now, while not without risk, the procedure is relatively safe.
Mortality rates for women undergoing early abortions appear to be as low or lower than the rates for normal childbirth.
The risk increases as the pregnancy continues.
Thus, the state retains a definite interest in protecting the woman's health when the danger of the abortion is equal to the danger of childbirth.
The laws were intended to protect pre-natal life.
This reason rests on the theory that a new human life begins at the moment of conception.
The Constitution does not explicitly mention any right to privacy. However, the Court has recognized a right to privacy or a guarantee of certain zones of privacy under the Constitution.
This right to privacy, whether from the 14th or 9th amendment is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
However, this right is not absolute; any attempt to limit this right must meet strict scrutiny.
The word person, as used by the 14th amendment, does not include the unborn.
The amendment does not say so, and legal abortion practices were far freer than they are today.
The pregnant woman is not isolated in her privacy right.
The health and life of the other being is an interest at some point.
The Court will not decide when life begins; no one else has been able to do it.
However, most physicians seem to point to the point at which the fetus becomes viable (potentially able to live outside the mother's womb) - 24 to 28 weeks.
Thus, the state has an important and legitimate interest in preserving and protecting the health of the pregnant woman and that it has still another important and legitimate interest in protecting the potentiality of human life.
The compelling point for the health of the mother comes at the end of the first trimester since the dangers of abortion equal the dangers of childbirth at this point.
The compelling point for the potential life comes at the point of viability since the being has the capability of meaningful life outside the mother's womb at this point.
Dissent
Rehnquist
The right of privacy is not involved in this case.
A transaction resulting in an operation such as this is not private in the ordinary usage of that word.
Since the right at issue here is just the right not to be interfered with by the gov't, the laws in question must only meet the rational basis test.
The fact that a majority of states have had restrictions on abortions for at least a century is a strong indication that the asserted right to an abortion is not so rooted in tradition as to be ranked as fundamental.
The statute in question here was enacted before the adoption of the 14th amendment and has persisted to this day.
There apparently was no question regarding the validity of this provision or of any other state statutes when the 14th amendment was adopted.
The drafters did not intend to have the 14th amendment withdraw from the states the power to legislate with respect to this matter.
