Roe v. Wade: Then and Now

Opinion of the Court in Roe v. Wade, by Justice Harry Blackmun (1/22/73)

“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.”

“The word “person,” as used in the Fourteenth Amendment, does not include the unborn.”

“The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care… All these are factors the woman and her responsible physician necessarily will consider in consultation.”

Planned Parenthood v. Casey: Roe Reaffirmed and Changed

The Roe v. Wade opinion left the decision to terminate up to the woman and her doctor in the first trimester, allowed the state to impose regulations on abortion in the second trimester and allowed the state to prohibit abortion after the fetus reaches “viability” in the third trimester.

In 1992, with Planned Parenthood v. Casey, the court reaffirmed the validity of Roe v. Wade, but eliminated the trimester framework for determining fetal viability in favor of a viability analysis. Viability of the fetus to survive outside the womb was now more open to interpretation and medical advances. A woman’s right was no longer protected in the first trimester.   

The opinion also imposed a new standard to determine the validity of laws restricting abortions.  The new standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden” on the woman, which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”  

The Leaked SCOTUS Opinion Written by Samuel Alito

This opinion responds to  the case Dobbs v. Jackson Women’s Health, which asks the court to rule on a new law in Mississippi that bans all abortions over 15 weeks gestational age except in medical emergencies and in the case of severe fetal abnormality.

Under the case law established by both Roe and Casey, this new law in Mississippi would be struck down. However, Alito’s opinion states: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision…including the Due Process Clause of the Fourteenth Amendment,” and thus would overturn Roe and Casey.

According to Alito’s reasoning, Roe was “remarkably loose in its treatment of the constitutional text.” Alito notes that Roe rests not on any single constitutional provision, but on five: the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. He details his opinion disagreeing with all possible combinations of these and recommends overturning Roe and giving all abortion regulation back to the states.

In the Roe v. Wade majority opinion, Blackmun reasoned that any constitutional right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 

In the leaked draft of the Dobbs opinion, Alito disagrees, writing that “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” “

Alito argues that a historical analysis is essential because a right to “liberty” (which Casey held as the basis for the right to abortion) is not clear enough to grant anything specific. “In interpreting what is meant by the Fourteenth Amendment’s reference to liberty,” he writes, “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.”  

U.S. Constitutional Amendments Related to These Cases

First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Beliefs of a person can be held privately and should not be infringed upon by the government. 

Fourth Amendment 

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Right to privacy for one’s person and home is logically derived from this amendment.

Fifth Amendment

“No person shall…be deprived of life, liberty, or property, without due process of law,” 

This is often just referred to as “Due Process” and the basic foundational principle on which many legal decisions involving rights are based. 

Fourteenth Amendment

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This ensures that the due process clause of the fifth amendment also applies to every state in the U.S.

Ninth Amendment

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

In other words, just because the constitution doesn’t mention a right specifically, doesn’t mean that right isn’t held by the people of the U.S. This is where the right to privacy is covered. It’s not specifically mentioned in the constitution, but previous case law dating as far back as 1891, establishes that personal privacy is protected.

Sources: • • (Kaiser Family Foundation) • • • Supreme Court of the United States • United States Constitution