MR. JUSTICE STEVENS on Roe v. Wade

“In Roe v. Wade, 410 U. S. 113, and Doe v. Bolton, 410 U. S. 179, the Court recognized that the States have a legitimate and protectible interest in potential human life. 410 U.S. at 410 U. S. 162. But the Court explicitly held that, prior to fetal viability, that interest may not justify any governmental burden on the woman's choice to have an abortion, [Footnote 4/2] nor even any regulation of abortion except in furtherance of the State's interest in the woman's health. In effect, the Court held that a woman's freedom to elect to have an abortion prior to viability has absolute constitutional protection, subject only to valid health regulations. Indeed, in Roe v. Wade the Court held that, even after fetal viability, a State may "regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."”

“If a woman has a constitutional right to place a higher value on avoiding either serious harm to her own health or perhaps an abnormal childbirth [Footnote 4/3] than on protecting potential life, the exercise of that right cannot provide the basis for the denial of a benefit to which she would otherwise be entitled. The Court's sterile equal protection analysis evades this critical, though simple, point. The Court focuses exclusively on the "legitimate interest in protecting the potential life of the fetus." Ante at 448 U. S. 324. It concludes that, since the Hyde Amendments further that interest, the exclusion they create is rational, and therefore constitutional. But it is misleading to speak of the Government's legitimate interest in the fetus without reference to the context in which that interest was held to be legitimate. For Roe v. Wade squarely held that the States may not protect that interest when a conflict with the interest in a pregnant woman's health exists. It is thus perfectly clear that neither the Federal Government nor the States may exclude a woman from medical benefits to which she would otherwise be entitled solely to further an interest in potential life when a physician, "in appropriate medical judgment," certifies that an abortion is necessary "for the preservation of the life or health of the mother." Roe v. Wade, supra at 410 U. S. 165. The Court totally fails to explain why this reasoning is not dispositive here. [Footnote 4/4]”

“"In Roe v. Wade, 410 U. S. 113, the Court held that a woman's right to decide whether to abort a pregnancy is entitled to constitutional protection. That decision . . . is now part of our law. . . ." Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 428 U. S. 101 (STEVENS, J., concurring in part and dissenting in part).”

“Roe v. Wade involved Texas statutes making it a crime to "procure an abortion," except when attempted to save the pregnant woman's life. 410 U.S. at 410 U. S. 117-118. Doe v. Bolton involved the somewhat less onerous Georgia statutes making abortion a crime in most circumstances, the exceptions being abortions to save the pregnant woman from life or permanent health endangerment, cases in which there was a very likely irremediable birth defect in the child, and cases in which the pregnancy was the result of rape. Those exceptions were subject to burdensome prior medical approvals, which were held to be unconstitutional. Subsequent cases have invalidated other burdens on the pregnant woman's free choice to abort. See Planned Parenthood of Central Missouri v. Danforth, supra, (consent required of husband or, for an unmarried woman under 18, of a parent); Bellotti v. Baird, 443 U. S. 622 (consent required of either parent or superior court judge for an unmarried woman under 18).”

“The Court rests heavily on the premise -- recognized in both Roe and Maher -- that the State's legitimate interest in preserving potential life provides a sufficient justification for funding medical services that are necessarily associated with normal childbirth without also funding abortions that are not medically necessary. The Maher opinion repeatedly referred to the policy of favoring "normal childbirth." See 432 U.S. at 432 U. S. 477, 432 U. S. 478, 432 U. S. 479. But this case involves a refusal to fund abortions which are medically necessary to avoid abnormal childbirth.”

“In responding to my analysis of this case, MR. JUSTICE WHITE has described the constitutional right recognized in Roe v. Wade as "the right to choose to undergo an abortion without coercive interference by the government" or a right "only to be free from unreasonable official interference with private choice." Ante at 448 U. S. 327, 448 U. S. 328. No such language is found in the Roe opinion itself. Rather, that case squarely held that state interference is unreasonable if it attaches a greater importance to the interest in potential life than to the interest in protecting the mother's health. One could with equal justification describe the right protected by the First Amendment as the right to make speeches without coercive interference by the government and then sustain a government subsidy for all medically needy persons except those who publicly advocate a change of administration.”