When pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. The law should not be that rigid. 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. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be capable of repetition, yet evading review.
Roe, a pregnant single woman, brought a class action lawsuit in federal district court challenging the constitutionality of the Texas criminal abortion laws, which proscribed procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. Hallford, a licensed physician, who had two state abortion prosecutions pending against him, was permitted to intervene. The Doe plaintiffs, a childless married couple, the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A three-judge district court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable. Appellants directly appealed to the Supreme Court of the United States on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and Hallford.
Was abortion within the scope of the personal liberty guaranteed by the Due Process Clause?
The Supreme Court of the United States affirmed the judgment, holding that abortion was within the scope of the personal liberty guaranteed by the Due Process Clause. That right was not absolute, but could be regulated by narrowly drawn legislation aimed at vindicating legitimate, compelling state interests in the mother's health and safety and the potentiality of human life. The former became compelling, and was thus grounds for regulation after the first trimester of pregnancy, beyond which the state could regulate abortion to preserve and protect maternal health. The latter became compelling at viability, upon which a state could proscribe abortion except to preserve the mother's life or health. The Texas statutes made no distinction between abortions performed early in pregnancy and those performed later, and it limited the legal justification for the procedure to a single reason--saving the mother's life--so it could not survive the constitutional attack. That conclusion made it unnecessary for the Court to consider the doctor's vagueness challenge.