Does a state criminal abortion statute that prohibits abortion at all stages of pregnancy except to save the mother's life violate the Due Process Clause of the Fourteenth Amendment by infringing a woman's constitutional right of privacy?

Jane Roe, a pseudonym for a single pregnant woman residing in Dallas County, Texas, wished to terminate her pregnancy by an abortion performed by a competent, licensed physician under safe clinical conditions. Texas law (Arts. 1191-1194 and 1196 of its Penal Code) made it a crime to procure or attempt an abortion except by medical advice for the purpose of saving the mother's life. Roe could not obtain a legal abortion in Texas because her life was not threatened by her pregnancy, and she could not afford to travel to another jurisdiction to obtain a legal abortion under safe conditions. She sued the Dallas County District Attorney, Henry Wade, claiming the statutes were unconstitutionally vague and abridged her right of personal privacy protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, and she sued on behalf of herself and all similarly situated women. James Hubert Hallford, a licensed physician facing two pending state prosecutions under the abortion statutes, intervened. John and Mary Doe, a childless married couple, filed a companion suit alleging that Mrs. Doe had been medically advised to avoid pregnancy and that she would seek an abortion if she became pregnant.

Roe filed suit in the United States District Court for the Northern District of Texas in March 1970 seeking declaratory and injunctive relief. Dr. Hallford was granted leave to intervene, and the Does filed a companion complaint. The actions were consolidated and heard by a three-judge district court. The court held that Roe and Dr. Hallford had standing and presented justiciable controversies, but that the Does lacked standing because they had not alleged facts sufficient to present a present controversy. On the merits, the court held that the fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment through the Fourteenth Amendment, and that the Texas abortion statutes were void on their face as unconstitutionally vague and as an overbroad infringement of Ninth Amendment rights. The court granted declaratory relief but declined to issue an injunction against enforcement, dismissed the Does' complaint, and reported its decision at 314 F. Supp. 1217 (N.D. Tex. 1970). Roe, the Does, and Hallford appealed directly to the Supreme Court under 28 U.S.C. § 1253 from the denial of injunctive relief; the District Attorney cross-appealed from the grant of declaratory relief. Protective appeals were also taken to the Fifth Circuit, which held them in abeyance. The Supreme Court postponed the jurisdictional question to the hearing on the merits, heard argument in December 1971, and reheard the case in October 1972.

(Blackmun, J.)

Yes. A state criminal abortion statute that excepts from criminality only life-saving procedures, without regard to the stage of pregnancy and without recognition of other interests, violates the Due Process Clause of the Fourteenth Amendment.

The Constitution does not explicitly mention privacy, but decisions such as Griswold v. Connecticut, 381 U.S. 479 (1965), and Eisenstadt v. Baird, 405 U.S. 438 (1972), recognize a right of personal privacy grounded in the concept of liberty in the Fourteenth Amendment. That right extends to activities relating to marriage, procreation, contraception, family relationships, and child rearing, and it is broad enough to encompass a woman's decision whether to terminate her pregnancy. Denying that choice altogether imposes serious medical, psychological, and social harms.

The right is not absolute. Where fundamental rights are involved, regulation is justified only by a compelling state interest and must be narrowly drawn. The State has two legitimate interests: protecting maternal health and protecting the potentiality of human life. Each grows in substantiality as pregnancy progresses and becomes compelling at a different point.

The word "person" in the Fourteenth Amendment does not include the unborn. The Constitution's uses of the term have application only postnatally, and the history of abortion law shows that, at common law and through much of the 19th century, abortion was treated far more leniently than under modern statutes. The Court need not resolve when life begins; Texas may not override the pregnant woman's rights by adopting one theory of life.

The State's interest in maternal health becomes compelling at approximately the end of the first trimester, because until then abortion mortality may be lower than childbirth mortality. The State's interest in potential life becomes compelling at viability, when the fetus presumptively can live outside the womb. The resulting framework is: (a) before approximately the end of the first trimester, the abortion decision is left to the woman and her physician; (b) after that point, the State may regulate in ways reasonably related to maternal health; (c) after viability, the State may regulate or proscribe abortion except where necessary to preserve the life or health of the mother.

Texas Art. 1196 draws no distinction between early and late abortions and permits abortion for a single reason, so it sweeps too broadly and falls. Because the exception cannot be severed, the Texas abortion statutes fall as a unit. The Does lacked standing, Dr. Hallford's complaint was dismissed under Samuels v. Mackell and Younger v. Harris, and the vagueness challenge need not be reached.

Concurrence (Stewart, J.) The Griswold decision can be understood only as holding that the Connecticut statute substantively invaded the liberty protected by the Due Process Clause of the Fourteenth Amendment, and substantive due process remains the proper basis for decision. The liberty protected by the Fourteenth Amendment extends beyond the freedoms enumerated in the Bill of Rights and includes freedom of personal choice in matters of marriage and family life. That liberty necessarily includes a woman's right to decide whether to terminate her pregnancy. The Texas statute infringes that right directly and cannot survive careful scrutiny, because the State's legitimate interests in maternal health and potential life cannot support so broad an abridgment of personal liberty.

Dissent (Rehnquist, J.) The Court decides a hypothetical case because the record does not show that Roe was in her first trimester during the litigation, so the Court departs from the rule against formulating constitutional rules broader than the facts require. The right of privacy found here is not private in the ordinary sense and bears no relation to the Fourth Amendment's protection against searches and seizures. The proper test under the Due Process Clause is whether a law bears a rational relation to a valid state objective, as in Williamson v. Lee Optical. The majority's compelling state interest test, borrowed from equal protection, and its division of pregnancy into three terms amount to judicial legislation resembling Lochner. At least 36 state or territorial laws limited abortion when the Fourteenth Amendment was adopted in 1868, showing that its drafters did not intend to remove state power over abortion. Even if the Court's holding were proper, the Texas statute should be held invalid only as applied rather than struck down in its entirety. The majority answered that the Art. 1196 exception cannot be struck down separately, because the State would then be left with a statute banning all abortions no matter how urgent, so the Texas abortion statutes fall as a unit.