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.
Plaintiff Roe, a pregnant single woman, brought a class action 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 Does, a childless married couple, 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 federal 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, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing the complainants’ Ninth and Fourteenth Amendment rights. On the other hand, the court ruled that the Does' complaint was not justiciable.
Were the Texas criminal abortion laws unconstitutional?
The Court held that state criminal abortion statute that excepted from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, was violative of the U.S. Const. amend. XIV. For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation had to be left to the medical judgment of the pregnant woman's attending physician. For the stage subsequent to approximately the end of the first trimester, the state, in promoting its interest in the health of the mother, could, if it chose, regulate the abortion procedure in ways that were reasonably related to maternal health. For the stage subsequent to viability, the state in promoting its interest in the potentiality of human life could, if it chose, regulate, and even proscribe, abortion except where it was necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.