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On Monday, January 22nd, 1973 the United States Supreme Court decided Roe v. Wade, 410 U.S. 113 and simultaneously with a companion case, Doe v. Bolton regarding the issue of abortion. The Court ruled 7–2 that a right to privacy "somewhere" under the due process clause of the 14th Amendment extended to a woman's decision to have an abortion, but that this right must be balanced against the state's two (2) legitimate interests in regulating abortions and protecting women's health and ultimately the protection the potentiality of human life. Importantly, the United States Supreme Court never declared abortion itself to be a constitutional right. Rather, the Supreme Court said: "We need not resolve the difficult question of when life begins … the judiciary at this point in the development of man's knowledge, is not in a position to speculate as to the answer." Then, in the very text of the Roe v. Wade decision, the High Court made a key admission:
"The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus' right to life would then be guaranteed specifically by the Amendment."1
In my opinion, the United States Supreme Court needed to "resolve the difficult question of when life begins … " before rendering judgment on the death of the only product of a human male and a human female, that is a human being. Below are clips from the 1961 movie Judgment at Nuremburg. In light of the fact that not one (1) of the seven (7) Supreme Court justices that made up the majority for 1973 Roe v. Wade decision are alive today, you can be the judge.
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To summarize and to repeat:
1. 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.
(a) 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.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [410 U.S. 113, 165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
2. The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.
In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together.
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This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day.
The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important [410 U.S. 113, 166] state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.
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