MR. JUSTICE BLACKMUN delivered the opinion of the Court. Chief
Justice Burger and Justices Douglas, Brennan, Stewart, Marshall and
Powell joined the opinion.
…We forthwith acknowledge our awareness of the sensitive and
emotional nature of the abortion controversy, of the vigorous opposing
views, even among physicians, and of the deep and seemingly absolute
convictions that the subject inspires. 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
…The principal thrust of appellant's attack on the Texas statutes is
that they improperly invade a right, said to be possessed by the
pregnant woman, to choose to terminate her pregnancy. Appellant would
discover this right in the concept of personal "liberty" embodied in the
14th Amendment's Due Process Clause; or in personal, marital,
familial, and sexual privacy said to be protected by the Bill of Rights
or its penumbras.
…The Constitution does not explicitly mention any right of privacy.
…[T]he Court has recognized that a right of personal privacy, or a
guarantee of certain areas or zones of privacy, does exist under the
Constitution. … This right of privacy, whether it be founded in the
14th 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 or not to terminate her
pregnancy. The detriment that the State would impose upon the pregnant
woman by denying this choice altogether is apparent. Specific and direct
harm medically diagnosable even in early pregnancy may be involved.
Maternity, or additional offspring, may force upon the woman a
distressful life and future. Psychological harm may be imminent. Mental
and physical health may be taxed by child care. There is also the
distress, for all concerned, associated with the unwanted child, and
there is the problem of bringing a child into a family already unable,
psychologically and otherwise, to care for it. In other cases, as in
this one, the additional difficulties and continuing stigma of unwed
motherhood may be involved. All these are factors the woman and her
responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici
argue that the woman's right is absolute and that she is entitled to
terminate her pregnancy at whatever time, in whatever way, and for
whatever reason she alone chooses. With this we do not agree.
Appellant's arguments that Texas either has no valid interest at all in
regulating the abortion decision, or no interest strong enough to
support any limitation upon the woman's sole determination, are
unpersuasive. The Court's decisions recognizing a right of privacy also
acknowledge that some state regulation in areas protected by that right
is appropriate. As noted above, a State may properly assert important
interests in safeguarding health, in 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. The privacy
right involved, therefore, cannot be said to be absolute….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.
… (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 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.
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 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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Questions to Consider
Where in the Constitution does the Court find support for the right
to privacy? Do you agree that this provision of the Constitution
protects a right to privacy?
What are the state’s interests in regulating abortion that are recognized by the Court?
How is the right to privacy in the abortion context different
from other areas in which a right to privacy has been recognized?
Describe the right to an abortion that a woman has at each stage of pregnancy.
How well do you believe the opinion balances the interests of
pregnant women and the interests of the state? Give reasons for your
Justice Blackmun’s opinion is also concerned with preserving
the relationship between the mother and the physician. How important is
it to limit government regulation on the relationship between the doctor
and the patient? Give reasons for your answer.