Landmark Roe judgment set scene for Irish abortion debate
This week marks the 40th anniversary of the landmark Roe v Wade case (410 US 113 (1973)), taken before the US Supreme Court by a woman who wished to terminate her pregnancy and challenged an 1857 Texas statute prohibiting abortion.
By a majority of seven to two, the court ruled that the statute violated her right to privacy. For the majority, Blackmun J considered the development of case law on the right to privacy in Griswold v Connecticut (381 US 479 (1965)) and Eisenstadt v Baird (405 US 438 (1972)), cases on the right of access to contraceptives to married couples and unmarried persons respectively. He held that, following those cases, the privacy right was broad enough to encompass “a woman’s decision whether or not to terminate her pregnancy.”
However, he rejected the argument that the right to personal privacy was unqualified, and in a famous passage developed a trimester structure that was to form the basis for state abortion law in the US ever since. He said that the “difficult question of where life begins” was not for the judiciary to decide. Rather, different state interests at different stages of a pregnancy could be recognised as restricting the right to personal privacy in particular ways.
For the first trimester of pregnancy, he held that the abortion decision should be left to the pregnant woman and the medical judgment of her doctors. For the second trimester, the state’s interest in protecting the health of the pregnant woman became compelling, so that the state could regulate the abortion procedure in ways “reasonably related to maternal health”.
For the third trimester, the state in the interests of the potentiality of human life could regulate and even proscribe abortion except where necessary to preserve the life or health of the woman.
In the US, Roe has had immense impact, establishing the right of access to abortion for women across the states. However, many attempts have been made to undermine its core principles, and significant inroads made in subsequent cases.
The courts have upheld rules limiting access to public funding for abortion; and those requiring parental consent for minors seeking abortion. In 1992, the court in Planned Parenthood of Southeastern Pennsylvania v Casey (112 S Ct 2791 (1992)) reaffirmed a woman’s basic privacy-based right to abortion, but allowed significant restrictions, upholding a mandatory waiting period and counselling requirements.
More recently, in Gonzales v Carhart (550 US 124 (April 18th, 2007)), the court undermined Roe further, upholding the Partial-Birth Abortion Ban Act 2003 which criminalised the carrying out of certain second-trimester abortions, even where necessary to safeguard a woman’s health. While the Roe precedent still survives, it remains under constant attack through litigation.
Roe also had significant impact in Ireland. Forty years ago, the Irish Supreme Court ruled in McGee v Attorney-General IR 284 that a right to marital privacy was inherent in the Constitution, allowing a married couple to import contraceptives for themselves despite statutory prohibition. In a 1977 article in the journal Studies, William Binchy described the McGee decision, in light of Roe, as being “live ammunition” in the hands of a court. He noted Walsh J’s remarks in McGee that the privacy right could not extend to abortion, but argued that although these comments “may have closed the door to abortion, the privacy concept espoused by that decision provides the key for opening that door in the future”.