Roe v. Wade Oral Argument - Part 5 (1971)

December 13, 1971 http://www.amazon.com/gp/redirect.html?ie=UTF8&location=http%3A%2F%2Fwww.... Watch the full program: http://thefilmarchived.blogspot.com/2010/10/us-supreme-court-roe-v-wade-oral....

In Section VIII, the Court identified a countervailing right that would have to be weighed against these state interests: namely, a Constitutional right to privacy: "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." The Roe court located this "right of privacy" in the Due Process Clause of the Constitution. Although the Constitution does not explicitly mention any right of privacy, the Court had previously found support for various privacy rights—directly (in several provisions of the Bill of Rights and the Fourteenth Amendment) as well as indirectly (in the "penumbra" of the Bill of Rights) -- most recently in the 1965 case of Griswold v. Connecticut.

In Section IX, the Court adds that there was no legal grounds for factoring into this balancing test any right to life of the unborn fetus. The fetus would have such a right if it were defined as a legal person for purposes of the Fourteenth Amendment, but the original intent of the Constitution (up to the enactment of the Fourteenth Amendment in 1868) did not include protection of the unborn, according to the Court. The Court emphasized that its determination of whether a fetus can enjoy constitutional protection neither meant to reference, nor intervene in, the question of when life begins:
" 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, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. "

In Section X, the Court explained that the trimester of pregnancy is relevant to the weight of the factors in this balancing test. Thus, during the first trimester, the state cannot restrict a woman's right to an abortion in any way; during the second trimester, the state may only regulate the abortion procedure "in ways that are reasonably related to maternal health"; during the third trimester, the state can choose to restrict or proscribe abortion as it sees fit when the fetus is viable ("except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother").

Section XI summarizes the Court's legal conclusions, explaining that a Texas-style criminal statute was unconstitutional, and recapitulating the permissible extent of state regulation in each of the three Constitutionally relevant time periods of pregnancy (i.e. divided by "approximately the end of the first trimester" and "the stage subsequent to viability").

Section XII resolves the dispute by striking down the Texas statute and characterizing the relief that should be accorded to Roe.

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