Title: Roe v. Wade and the Right to Abortion | NWLC
Headings: Resource
Resource
The Constitutional Right to Privacy Predates Roe v. Wade
The Decision to Have an Abortion is Protected under the Constitutional Right to Privacy
The Evolution of the Constitutional Right to Abortion, Post-Roe v. Wade
The Current Landscape – Roe and the Right to Abortion is Under Constant Attack

Content: In Roe, the Court held that the constitutional right to privacy includes a woman’s right to decide whether to have an abortion. The Court made clear that as a basic right to privacy protected by the Due Process Clause of the Fourteenth Amendment, the woman’s right is “fundamental,” meaning that governmental attempts to interfere with the right are subject to “strict scrutiny.” To withstand strict scrutiny, the government must show that its law or policy is necessary to achieve a compelling interest. The law or policy must also be narrowly tailored to achieve the interest and must be the least restrictive means for doing so. Yet, the Court also concluded that the “right is not unqualified and must be considered against important state interests in regulation.” The Court identified those state interests as protecting women’s health and protecting the “potentiality” of life. The Court developed a way to balance the woman’s right to abortion against these governmental interests: prior to fetal viability, a state could only regulate abortion if necessary to protect a woman’s health, such as licensing doctors. After fetal viability, a government could regulate and even ban abortion to further its interest in the potentiality of life, but it must safeguard a woman’s life and a woman’s health. In the years after Roe, the Court struck down most attempts to restrict the right to decide whether to have an abortion, facilitating a woman’s ability to control her reproduction, her health, and indeed the course of her life itself.