The Constitutional Arguments in Roe v. Wade

By Jonathan L. Green

Photo by Wesley Tingey

In the Supreme Court’s majority opinion of Roe v. Wade in 1973, Justice Harry Blackmun wrote: “We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy… 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.” Here, he underlines what we already know: this is a divisive issue made all the more divisive by its personal nature and the passion with which its morals are argued. But cases argued before America’s highest court must have basis in the Constitution and in history, not solely in moral and religious appeals. Following are some of the arguments made in Blackmun’s majority opinion, as well as in Justice William Rehnquist’s dissent.

MAJORITY OPINION

Chief Justice Burger and Justices Blackmun, Brennan, Douglas, Marshall, Powell and Stewart

  • The 14th Amendment’s Due Process Clause guarantees a right to personal liberty and limits states’ right to infringe on said liberty.
  • The Ninth Amendment reserves rights to the people, absent specific enumeration elsewhere in the Constitution.
  • As early as 1891, Supreme Court decisions found guarantees of certain zones of personal privacy in the First, Fourth and Fifth Amendments in previous decisions as well, relating to marriage, procreation and contraception.
  • The Constitution uses the word “person” in applications that relate to humans only postnatally, and not pre-natally.
  • According to ancient Greek belief, English common law and Christian doctrine before 1850, the right to an abortion is not an absolute right and only applies during an early period in the pregnancy. Therefore, choice related to abortion is entirely that of the mother and attending physician only during the first trimester of a pregnancy. States may regulate abortions in the second and third trimesters.

DISSENTING OPINION

Justices Rehnquist and White

  • “While a party may vindicate his own constitutional rights, he may not seek vindication for the rights of others.” The Court did not know where in Roe’s pregnancy she was when she filed her case; she could have been in her third trimester, in which case she could not have argued for an abortion and her case would have been moot.
  • “A transaction resulting in an operation such as this is not ‘private’ in the ordinary usage of that word.” The Majority Opinion is mistaken in its references to the extent of privacy guaranteed in the First, Fourth, Fifth, Ninth and 14th Amendments.
  • The Majority Opinion strikes down the Texas statute in question in its entirety, but it also concurs with some of the statute’s regulations on abortion in the third trimester. Past practice suggests that in such a case, the Court should not strike down such a statute in toto.

Jonathan L. Green is the Literary Manager at Goodman Theatre and Dramaturg for Roe.