Explainer: Supreme Court's Roe v. Wade decision hinged on women's right to privacy

[September 23, 2020]  WASHINGTON (Reuters) - The death of U.S. Supreme Court Justice Ruth Bader Ginsburg has raised concerns among reproductive rights advocates that women could lose the right to choose whether to have an abortion, with President Donald Trump poised to name another conservative justice to the nation's top court.

A woman's right to have an abortion through the first trimester of pregnancy was protected nationally in 1973, following the Supreme Court's landmark 7-2 ruling  in Roe v. Wade.

Plaintiff Jane Roe, later identified as Norma McCorvey, was an unmarried pregnant woman who was unable to get an abortion under Texas law, where it was illegal unless to save the life of the mother.

Roe's lawyers said she was unable to travel out of the state to obtain an abortion and argued that the law was too vague and infringed on her constitutional rights.

THE MAJORITY RULING

"Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us," Supreme Court Justice Harry Blackmun, a Republican nominated by President Richard Nixon, wrote in the sweeping majority opinion that detailed attitudes about abortion from the time of the Persian empire.

The Texas law infringed on women's right to privacy, was overly broad and violated the due process clause in the U.S. Constitution's Fourteenth Amendment https://www.ourdocuments.gov/doc.php?flash=false&doc=43, the decision said.

"This right of privacy...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.

Abortion rights activists rally outside the U.S. Supreme Court in Washington, U.S., May 21, 2019. REUTERS/Kevin Lamarque

"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."

Five Republican-nominated judges were among the majority. The court ruled the state could regulate the procedure during the second trimester and even ban it in most circumstances in the third.

"We do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake," Blackmun wrote.

"We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct."

Justices Byron White, a Democratic appointee, and Republican-nominated William Rehnquist, later U.S. chief justice, dissented. The decision provoked a firestorm among social and judicial conservatives, who have long sought to undermine or overturn it.

(Reporting by Makini Brice; Editing by Peter Cooney)

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