ROE DOESN'T SAY THAT


In opposing the current legislation banning abortions after 20 weeks gestation, Attorney Anita Arriola argued:

"The decision to continue or end a pregnancy is one that must be made by a woman in consultation with those she trusts - not by the government of Guam.  

The United States Supreme Court has long recognized as much in Roe v. Wade, 410 U.S. 113, 163-64 (1973), the Court held that: (1) a state may never ban abortion prior to fetal viability-that is, before the fetus has reasonable likelihood of sustained survival outside the woman’s body; and (2) a state many ban abortion after viability only if there are adequate exceptions to protect a woman’s life and health." 

Arriola references pages 163-164 of Roe. The text from these two pages is copied in bold below:


With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like. 

This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. 

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Arriola claims that Roe gives the woman the right to decide "to continue or end a pregnancy," and further posits that the government has no role in that decision.


However, nowhere in the referenced pages do we see any mention of a woman's right to to decide "to continue or end a pregnancy.


Rather, Roe, here, makes the case for the "State's important and legitimate interest in potential life," after the pregnancy reaches "the compelling point" (viability), and further states that "it (the government) may go so far as to proscribe abortion...


And even prior to "the compelling point," the decision belongs not to the woman but to "the attending physician:"

"...for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated."

Note that Roe assumes that it is the attending physician who is consulting with the woman and not, as Arriola says, "a woman in consultation with those she trusts," (obviously) the attending physician, in whose "medical judgement" Roe leaves the decision to terminate the patient's pregnancy.


Continuing on, not only does the remaining text on these pages NOT support Arriola's claims, it underscores and affirms: 1) that the decision initially belongs to the physician, and 2) thereafter, the right of government to intervene:

Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here. 

This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness. See United States v. Vuitch, 402 U.S. at 67-72.

To summarize and to repeat: 

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving 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 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.


Arriola and other abortion advocates would have us believe that Roe gives the woman an absolute right to privacy relative to her decision to terminate her pregnancy. However, once again, Roe doesn't say that:

[154] "...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. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U. S. 11 (1905) (vaccination); Buck v. Bell, 274 U. S. 200 (1927) ( sterilization). 

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."

[159] "...it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly."

So not only does Roe state that the privacy right is NOT "absolute," it goes on to essentially defeat the "it's my body" argument.



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