Editing Roe v. Wade (section)

===Opinion of the Court===
[[File:US Supreme Court Justice Harry Blackmun, detail.jpg|thumb|upright=0.8|Justice Harry Blackmun, the author of the majority opinion in ''Roe'']]
Justice Harry Blackmun authored the [[judicial opinion|opinion]] of the Court{{mdash}}the "majority opinion"{{mdash}}and was joined by six other justices: Chief Justice [[Warren Burger]] and Justices [[Potter Stewart]], [[William J. Brennan Jr.]], [[William O. Douglas]], [[Thurgood Marshall]], and [[Lewis F. Powell Jr.]]

==== Mootness ====
After reciting the facts of the case, the Court's opinion first addressed several legal questions involving procedure and [[justiciability]]. These included [[mootness]], a legal doctrine that prevents American federal courts from hearing cases that have ceased to be "live" controversies because of intervening events.{{sfnp|Lee|1992|pp=610–11}} Under a normal application of the doctrine, McCorvey's appeal would have been considered moot because she had already given birth to her child and therefore no longer had a pregnancy to abort.<ref>{{cite book|last=Abernathy|first=M.|year=1993|url=https://books.google.com/books?id=tHhlYpWokFIC|title=Civil Liberties Under the Constitution|publisher=U. South Carolina|page=4|isbn=978-0-87249-854-9 |access-date=February 4, 2007}}</ref>

The Court concluded that an established exception to the mootness doctrine allows consideration of cases that are "capable of repetition, yet evading review".<ref>{{cite book |title=Federal Jurisdiction |series=Introduction to Law |first=Erwin |last=Chemerinsky |author-link=Erwin Chemerinsky |edition=4th |publisher=Aspen Publishers |year=2003 |isbn=978-0-7355-2718-8 |page=132 |url=https://books.google.com/books?id=wgpGAQAAIAAJ}}</ref> Blackmun noted that McCorvey might get pregnant again, and pregnancy would normally conclude more quickly than an [[Appeal#Appellate procedure|appellate process]]: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied."<ref>[https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137 ''Roe'', 410 U.S.] at 125; see also {{harvp|Schwartz|1988|pp=108–09}}</ref>

==== Abortion and right to privacy ====
After dealing with mootness and [[Standing (law)|standing]], the Court proceeded to the main issue of the case: the constitutionality of Texas's abortion law. The Court first surveyed the status of abortion throughout the history of [[Roman law]] and the English and early American common law.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 887}} It also reviewed the developments of medical procedures and technology used in abortions.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 887}}

Following its historical surveys, the Court introduced the concept of a constitutional "[[Right to privacy#United States|right to privacy]]" that it said had been intimated in earlier decisions such as ''[[Meyer v. Nebraska]]'' and ''[[Pierce v. Society of Sisters]]'', which involved parental control over [[Parenting|childrearing]], and ''Griswold v. Connecticut'', which involved the use of contraception.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 887}} Then, "with virtually no further explanation of the privacy value",{{sfnp|Nowak|Rotunda|2012|loc=§&nbsp;18.29(b)(i)}} the Court ruled that regardless of exactly which provisions were involved, the U.S. Constitution and its guarantees of liberty covered a right to privacy that protected a pregnant woman's decision whether to abort a pregnancy.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 887}}
{{Blockquote
|text=This right of privacy, whether it be founded in the [[Fourteenth Amendment to the United States Constitution|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 to terminate her pregnancy.
|source=''Roe'', 410 U.S. at 153.<ref>Quoted in {{harvp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 887}}.</ref>
}}
The Court reasoned that outlawing abortions would infringe a pregnant woman's right to privacy for several reasons: having unwanted children "may force upon the woman a distressful life and future"; it may bring imminent psychological harm; caring for the child may tax the mother's physical and mental health; and because there may be "distress, for all concerned, associated with the unwanted child".<ref>{{harvp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 887}}, quoting ''Roe'', 410 U.S. at 153.</ref> However, the Court rejected the notion that this right to privacy was absolute.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 887}} It held instead that a woman's right to have an abortion must be balanced against other [[government interest]]s, such as protecting [[maternal health]] and protecting the life of the fetus.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 887}} The Court held that these government interests were sufficiently compelling to permit states to impose some limits on pregnant women's right to choose to have an abortion.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 887}}
{{Blockquote
|text=A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. ... We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
|source=''Roe'', 410 U.S. at 154.
}}
Texas's lawyers had argued that limiting abortion to situations where the mother's life was in danger was justified because life began at the moment of [[Fertilisation#Humans|conception]], and therefore the state's governmental interest in protecting prenatal life applied to all pregnancies regardless of their [[Prenatal development|stage]].{{sfnp|Nowak|Rotunda|2012|loc=§&nbsp;18.29(b)(i)}} The Court said that there was no indication that the Constitution's uses of the word "[[Legal person|person]]" were meant to include fetuses, and it rejected Texas's argument that a fetus should be considered a "person" with a legal and constitutional [[right to life]].{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, pp. 887–88}} The Court observed that there was still great disagreement over when an unborn fetus becomes a living being.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, pp. 887–88}}
{{Blockquote
|text=We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, in this point in the development of man's knowledge, is not in a position to speculate as to the answer.
|source=''Roe'', 410 U.S. at 159.<ref>Quoted in {{harvp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 888}}.</ref>
}}

{{anchor|trimester}}

To balance women's rights to privacy and state governments' interests in protecting mothers' health and prenatal life, the Court created the [[Trimester (pregnancy)|trimester]] framework.<ref>{{Cite web|url=https://www.law.cornell.edu/wex/roe_v_wade_(1973)|title=Roe v. Wade (1973)|website=LII / Legal Information Institute}}</ref><ref>{{cite news |last1=Strauss |first1=Valerie |title=Answer Sheet: A brief lesson on Roe v. Wade |url=https://www.washingtonpost.com/education/2022/05/03/brief-lesson-roe-v-wade/ |access-date=May 16, 2022 |newspaper=The Washington Post |date=May 3, 2022 |archive-url=https://web.archive.org/web/20220516181315/https://www.washingtonpost.com/education/2022/05/03/brief-lesson-roe-v-wade/ |archive-date=May 16, 2022}}</ref> During the first trimester, when it was believed that the procedure was safer than childbirth, the Court ruled that a state government could place no restrictions on women's ability to choose to abort pregnancies other than imposing minimal medical safeguards, such as requiring abortions to be performed by [[Medical license|licensed]] physicians.{{sfnp|Nowak|Rotunda|2012|loc=§&nbsp;18.29(b)(i)}} From the second trimester on, the Court ruled that evidence of increasing risks to the mother's health gave states a compelling interest that allowed them to enact medical regulations on abortion procedures so long as they were reasonable and "narrowly tailored" to protecting mothers' health.{{sfnp|Nowak|Rotunda|2012|loc=§&nbsp;18.29(b)(i)}} From the beginning of the third trimester on—the point at which a fetus became viable under the medical technology available in the early 1970s—the Court ruled that a state's interest in protecting prenatal life became so compelling that it could legally prohibit all abortions except where necessary to protect the mother's life or health.{{sfnp|Nowak|Rotunda|2012|loc=§&nbsp;18.29(b)(i)}}

Having completed its analysis, the Court concluded that Texas's abortion statutes were unconstitutional and struck them down.
{{blockquote|A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.|source=''Roe'', 410 U.S. at 164.}}

==== Concurrences ====
Three justices from the majority filed [[concurring opinion]]s in the case. Justice Potter Stewart wrote a concurring opinion in which he said that even though the Constitution makes no mention of the right to choose to have an abortion without interference, he thought the Court's decision was a permissible interpretation of the doctrine of [[substantive due process]], which says that the [[Due Process Clause]]{{'s}} protection of liberty extends beyond simple procedures and protects certain fundamental rights.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 888, note 47}}{{sfnp|Nowak|Rotunda|2012|loc=§&nbsp;18.29(b)(i)}} Justice William O. Douglas's concurring opinion described his view that although the Court was correct to find that the right to choose to have an abortion was a fundamental right, he thought it would have been better to derive it from the Ninth Amendment{{mdash}}which states that the fact that a [[Unenumerated rights|right is not specifically enumerated]] in the Constitution shall not be construed to mean that American people do not possess it{{mdash}}rather than through the Fourteenth Amendment's Due Process Clause.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 888, note 47}}{{sfnp|Nowak|Rotunda|2012|loc=§&nbsp;18.29(b)(i)}}

Chief Justice Warren Burger wrote a concurrence in which he wrote that he thought it would be permissible to allow a state to require two physicians to certify an abortion before it could be performed.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 888, note 47}} His concurrence also states:<ref name=burgerconcurring>[http://landmarkcases.c-span.org/pdf/Roe_Burger_Concurrence.pdf ''Roe v. Wade'', Mr. Chief Justice Burger, concurring] {{Webarchive|url=https://web.archive.org/web/20220508051032/http://landmarkcases.c-span.org/pdf/Roe_Burger_Concurrence.pdf |date=May 8, 2022 }}, ''Landmark Cases'', C-SPAN, January 22, 1973</ref><blockquote>I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.</blockquote>

This has been interpreted as Chief Justice Burger thinking that medical standards and judgment would restrict the number of abortions. Instead of the law restricting abortions to limited circumstances as pre-''Roe'', now doctors would get to do the restricting.<ref>[https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=2012&context=clevstlrev Judges as Medical Decision Makers: Is the Cure Worse than the Disease] by Alan A. Stone, ''Cleveland State Law Review'', Volume 33, Issue 4, 1984, page 580 (page 3 of the pdf)</ref>

This understanding of ''Roe'' appears to be related to several statements in the majority opinion.<ref>[https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=2012&context=clevstlrev Judges as Medical Decision Makers: Is the Cure Worse than the Disease] by Alan A. Stone, ''Cleveland State Law Review'', Volume 33, Issue 4, 1984, pages 579–580 (pages 2–3 of the pdf)</ref> Justice Blackmun's majority opinion states, "the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient's pregnancy should be terminated."<ref>[https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137 ''Roe'', 410 U.S.] at 163, ''justia.com''</ref> It also states, "For the stage, prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician."<ref>[https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137 ''Roe'', 410 U.S.] at 164, ''justia.com''</ref> Six days prior to January 22, Justice Blackmun prepared "a transcript of what I shall say, and there should be at least some reason for the press not going all the way off the deep end."<ref name=gorlick/> The unissued news release stated:<ref name=savagelatimes/><ref name=gorlick>{{cite web|url=https://news.stanford.edu/news/2008/december3/rehnq-120308.html|title=Rehnquist papers offer peek inside Supreme Court|first=Adam|last=Gorlick|newspaper=Stanford Report|date=November 20, 2008}}</ref>
<blockquote>...{{nbsp}}the Court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician.</blockquote>

These statements appear to indicate that the justices voting in the majority thought that patients had personal physicians. Earlier in American history it was once common for people to have individual doctors, but the nature of doctor-patient relationship had already changed prior to ''Roe''.<ref>{{cite journal|url=https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=2012&context=clevstlrev|title=Judges as Medical Decision Makers: Is the Cure Worse than the Disease|first=Alan A.|last=Stone|journal=Cleveland State Law Review|volume=33|number=4|year=1984|pages=581–582}}</ref>

==== Dissents ====
{{multiple image
 | align = right
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 | image1 = US Supreme Court Justice Byron White - 1976 official portrait.jpg
 | image2 = William Rehnquist official portrait 1972.jpg
 | footer = Justices Byron White (left) and William Rehnquist (right), the two dissenters from ''Roe v. Wade''
}}
Two justices, [[Byron White]] and [[William Rehnquist]], dissented from the Court's decision.{{sfnp|Nowak|Rotunda|2012|loc=§&nbsp;18.29(b)(i)}} White's dissent, which was issued with ''Roe''{{'s}} companion case, ''Doe v. Bolton'', argued that the Court had no basis for deciding between the competing values of pregnant women and unborn children: 
{{Blockquote
|text=I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of [[Judicial review in the United States|judicial review]] that the Constitution extends to this Court.
|source=''Doe'', 410 U.S. at 221–22 (White, J., dissenting).<ref name="Doe Case">[https://supreme.justia.com/cases/federal/us/410/179/#tab-opinion-1950139 ''Doe v. Bolton'', 410 U.S. 179 (1973)], ''justia.com''</ref>
}}
White also argued that the legality of abortion, "for the most part, should be left with the people and the political processes the people have devised to govern their affairs."<ref>{{harvp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 888}}, quoting ''Doe'', 410 U.S. at 222 (White, J., dissenting).</ref>
 
Rehnquist's dissent compared the majority's use of substantive due process to the Court's repudiated use of the doctrine in the 1905 case ''[[Lochner v. New York]]''.{{sfnp|Nowak|Rotunda|2012|loc=§&nbsp;18.29(b)(i)}} He elaborated on several of White's points and asserted that the Court's historical analysis was flawed.
{{blockquote|To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or [[Territories of the United States#Governments and legislatures|territorial legislatures]] limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.
|source=''Roe'', 410 U.S. at 174–76 (Rehnquist, J., dissenting).<ref name="Roe">[https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137 ''Roe'', 410 U.S.] at 174–77 (Rehnquist, J., dissenting).</ref><ref>{{cite book |last=Currie |first=David |title=The Constitution in the Supreme Court: The Second Century, 1888–1986 |page=470|publisher=University of Chicago Press|year=1994}}</ref><ref>"[http://www.economist.com/node/4134124 Rehnquist's legacy]", ''[[The Economist]]'' (June 30, 2005).</ref>}}

From this historical record, Rehnquist wrote, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." He concluded "the [[Fourteenth Amendment to the United States Constitution#Drafters|drafters]] did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."<ref>{{Cite book|url=https://books.google.com/books?id=sKjOeBQIcc8C&pg=PA602|title=American Constitutional Law: Essays, Cases, and Comparative Notes|last1=Kommers|first1=Donald P.|last2=Finn|first2=John E.|last3=Jacobsohn|first3=Gary J.|date=2004|publisher=Rowman & Littlefield|isbn=978-0-7425-2687-7|language=en}}</ref>