Probably the most controversial of all the fundamental rights within the right to privacy is the right of a woman to have an abortion. An abortion is a procedure that terminates your pregnancy. Just like you have the right to decide to have children and rear them to adulthood, you also have the right to choose not to have children. However, unlike some of the other rights that fall within the fundamental right to privacy, here you have several compelling government interests that allow significant government regulations. The government has a compelling interest in protecting the health and safety of its citizens, including fetuses. Let’s look at this a little further.

Assume that a woman decides within her first trimester (first twelve weeks of pregnancy) that she wants to have an abortion. At this point in the pregnancy, there is not much of a possibility that the fetus would be able to survive outside of the mother’s womb. The fetus has likely not developed enough to survive on its own. This essential means that the fetus is not viable. Under these circumstances, the government may adopt regulations to protect the health and safety of the mother and fetus alike, but the restrictions cannot place an undue burden on the woman. For example, the government could require the woman to get an abortion by a physician who is licensed. Further, the government could require the woman to wait for a period of twenty-four hours after seeking an abortion before one can actually be performed. On the other hand, putting regulations in place that would result in a substantial obstacle to the woman obtaining an abortion would not stand up under the strict scrutiny standard.

Let’s change the previous hypothetical now and say that the woman decides to have an abortion during the second trimester of her pregnancy (between 12 and 24 weeks of the pregnancy). Under these circumstances, medical evidence has shown that the fetus is viable —meaning it is likely that the fetus can live and survive outside of the mother’s womb. Now, the government has a compelling interest to protect the life of the fetus. So, at the point of viability, the government can prohibit a woman from exercising her right to have an abortion in order to protect the life of the fetus. In cases such as these, the United States Supreme Court has said that the government can only allow the woman to have an abortion once the fetus is viable if the procedure is necessary to protect the health or safety of the woman (e.g. if the mother could die without an abortion).

In addition to abortion, a similar right is the right to use contraceptives to prevent pregnancy. Although this is different from abortion, it is certainly related. The government cannot prohibit adults from obtaining contraceptives to protect against pregnancy.

Next, let’s take a closer look at a person’s right to read obscene material within his or her home.