Roe Revisited
"The right of the people to be secure in their persons, houses, papers, and effects....shall not be violated."
Fourth Amendment to the Constitution
..."No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ...nor shall any state deprive any person of life, liberty , or property, without due process of law"
Section 1, Fourteenth Amendment ( in part)
The word "privacy" does not occur in either of these citations from Amendments to the Constitution, but the effect of the Fourth Amendment is to remove private activities from federal government scrutiny without a legal subpoena or search warrant, and the Fourteenth prohibits states from depriving anyone of the rights guaranteed by the US Constitution and its Amendments. Taken together, these two amendments create a right to privacy from state intrusion, which has been recognized by the US Supreme Court.
The Court ruled in 1962 in Griswold vs Connecticut that a law in that state that prohibited the use of birth control violated the right to privacy implicit in these Amendments.
In 1971 a young woman identified in court documents as Jane Roe (1) sued in federal court to have the Texas law that banned abortion (except to save the life of the pregnant woman) als0 declared unconstitutional. The defendant was Henry Wade, the District Attorney of Dallas. After nearly two years of hearings and appeals, Justice Harry Blackmun delivered a ruling in the case known as Roe vs Wade.
The Court decided that "State criminal abortion laws.....violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life...."
The Court went on to divide the nine-months of gestation into three trimesters, with the state interest in the life of the unborn fetus increasing as the fetus gradually acquires the characteristics of a person. In the first trimester (in which most abortions are performed), the state has no right to interfere, except to require that only a licensed physician may perform the procedure. In the second trimester, the State may regulate the procedure for the sake of maternal health. In the final trimester, the State may proscribe abortion except where medically necessary.
This decision is a classical example of "judge-made law", since neither the statute under consideration, nor the briefs of the litigants, made any reference to the trimester scheme described above. Roe claimed the right to abort was absolute, and the State of Texas claimed the law was valid. However, the idea that a court may devise a compromise and impose it on the parties has ample precedent. (2)
In explaining the rationale for the decision, the Court declared that a fetus is not a person, as the term is used in the Constitution and its Amendments. (In taking this position, the Court was contradicting the teachings of many of America's most important churches, most notably the Catholic Church.) Accordingly, a woman seeking abortion is not threatening the rights of any other person, but rather seeking only to remove something from her own body, which the Court ruled is covered by her right to privacy. Although not a person, a viable fetus is nevertheless human life, and the state may protect such life in the final trimester.
The decision sparked a bitter controversy, which continues to this day. Most of the opposition has been from devout Christians: Catholics, Lutherans and Evangelicals primarily. Those who believe that life begins at conception consider abortion of a form of murder, the most serious crime of all, which should be punished under civil law. Since the adherents of this viewpoint are motivated by religious belief, no compromise with them is possible.
Ironically, in the abortion controversy conservatives who otherwise advocate maximum individual liberty and minimal government seek state government intrusion into one of the most private conditions: pregnancy. Liberals, who would like to infringe on the right to bear arms (despite the explicit language of the Second Amendment), claim the states have no right to infringe on the right to abort a pregnancy, even though neither the Constitution nor any Amendment even mentions the subject.
Opponents of the Roe decision have adopted three strategies: restrict abortion rights by statute, amend the Constitution to guarantee the unborn the right to life, and seek new Supreme Court justices who will eventually overturn Roe. In addition, some abortion-protestors have picketed clinics, while others have blocked the clinic doors and some have even turned to violence.
The first strategy has been partially successful, especially in restricting abortion rights of girls under 18. However, attempts to ban "partial-birth abortion" and requiring spousal notification have been struck down by the Supreme Court and other federal courts as violative of Roe.
The "Human Life Amendment", despite support from President Reagan, never mustered anywhere the required number of votes in Congress, and is no longer being advocated.
Whenever a Supreme Court vacancy has occurred under a Republican President, pro-life activists have pushed for a nominee determined to overturn Roe v Wade. Justices Clarence Thomas and Antonin Scalia are clearly in this camp, and Chief Justice John Roberts is widely believed to agree with them. Judge Samuel Alito, the nominee to succeed retiring Justice Sandra Day O'Connor, stated in a job application in 1985 that " the Constitution does not protect a right to an abortion. "
Those who believe that the courts should interpret the Constitution in accordance with the "original intent" of the framers of the document and its amendments cannot support the Roe decision. I doubt that anyone who voted to pass or ratify the Fourteenth Amendment thought it would invalidate anti-abortion laws then on the books of Texas and other states.(3) But according to Justice Blackmun and six of his colleagues, that is exactly what they did.
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(1) Later identified as Norma McCorvey, whose baby was born while her case was pending in the courts. She has subsequently spoken out against abortion.
(2) For example, federal courts have settled redistricting cases by drawing up their own district-maps, something normally done by law.
(3) The primary aim of this Amendment, passed in the wake of the Civil War, was to prevent states from abrogating the rights of the former slaves.
Fourth Amendment to the Constitution
..."No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ...nor shall any state deprive any person of life, liberty , or property, without due process of law"
Section 1, Fourteenth Amendment ( in part)
The word "privacy" does not occur in either of these citations from Amendments to the Constitution, but the effect of the Fourth Amendment is to remove private activities from federal government scrutiny without a legal subpoena or search warrant, and the Fourteenth prohibits states from depriving anyone of the rights guaranteed by the US Constitution and its Amendments. Taken together, these two amendments create a right to privacy from state intrusion, which has been recognized by the US Supreme Court.
The Court ruled in 1962 in Griswold vs Connecticut that a law in that state that prohibited the use of birth control violated the right to privacy implicit in these Amendments.
In 1971 a young woman identified in court documents as Jane Roe (1) sued in federal court to have the Texas law that banned abortion (except to save the life of the pregnant woman) als0 declared unconstitutional. The defendant was Henry Wade, the District Attorney of Dallas. After nearly two years of hearings and appeals, Justice Harry Blackmun delivered a ruling in the case known as Roe vs Wade.
The Court decided that "State criminal abortion laws.....violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life...."
The Court went on to divide the nine-months of gestation into three trimesters, with the state interest in the life of the unborn fetus increasing as the fetus gradually acquires the characteristics of a person. In the first trimester (in which most abortions are performed), the state has no right to interfere, except to require that only a licensed physician may perform the procedure. In the second trimester, the State may regulate the procedure for the sake of maternal health. In the final trimester, the State may proscribe abortion except where medically necessary.
This decision is a classical example of "judge-made law", since neither the statute under consideration, nor the briefs of the litigants, made any reference to the trimester scheme described above. Roe claimed the right to abort was absolute, and the State of Texas claimed the law was valid. However, the idea that a court may devise a compromise and impose it on the parties has ample precedent. (2)
In explaining the rationale for the decision, the Court declared that a fetus is not a person, as the term is used in the Constitution and its Amendments. (In taking this position, the Court was contradicting the teachings of many of America's most important churches, most notably the Catholic Church.) Accordingly, a woman seeking abortion is not threatening the rights of any other person, but rather seeking only to remove something from her own body, which the Court ruled is covered by her right to privacy. Although not a person, a viable fetus is nevertheless human life, and the state may protect such life in the final trimester.
The decision sparked a bitter controversy, which continues to this day. Most of the opposition has been from devout Christians: Catholics, Lutherans and Evangelicals primarily. Those who believe that life begins at conception consider abortion of a form of murder, the most serious crime of all, which should be punished under civil law. Since the adherents of this viewpoint are motivated by religious belief, no compromise with them is possible.
Ironically, in the abortion controversy conservatives who otherwise advocate maximum individual liberty and minimal government seek state government intrusion into one of the most private conditions: pregnancy. Liberals, who would like to infringe on the right to bear arms (despite the explicit language of the Second Amendment), claim the states have no right to infringe on the right to abort a pregnancy, even though neither the Constitution nor any Amendment even mentions the subject.
Opponents of the Roe decision have adopted three strategies: restrict abortion rights by statute, amend the Constitution to guarantee the unborn the right to life, and seek new Supreme Court justices who will eventually overturn Roe. In addition, some abortion-protestors have picketed clinics, while others have blocked the clinic doors and some have even turned to violence.
The first strategy has been partially successful, especially in restricting abortion rights of girls under 18. However, attempts to ban "partial-birth abortion" and requiring spousal notification have been struck down by the Supreme Court and other federal courts as violative of Roe.
The "Human Life Amendment", despite support from President Reagan, never mustered anywhere the required number of votes in Congress, and is no longer being advocated.
Whenever a Supreme Court vacancy has occurred under a Republican President, pro-life activists have pushed for a nominee determined to overturn Roe v Wade. Justices Clarence Thomas and Antonin Scalia are clearly in this camp, and Chief Justice John Roberts is widely believed to agree with them. Judge Samuel Alito, the nominee to succeed retiring Justice Sandra Day O'Connor, stated in a job application in 1985 that " the Constitution does not protect a right to an abortion. "
Those who believe that the courts should interpret the Constitution in accordance with the "original intent" of the framers of the document and its amendments cannot support the Roe decision. I doubt that anyone who voted to pass or ratify the Fourteenth Amendment thought it would invalidate anti-abortion laws then on the books of Texas and other states.(3) But according to Justice Blackmun and six of his colleagues, that is exactly what they did.
------------------------------------------------------------------------------------------
(1) Later identified as Norma McCorvey, whose baby was born while her case was pending in the courts. She has subsequently spoken out against abortion.
(2) For example, federal courts have settled redistricting cases by drawing up their own district-maps, something normally done by law.
(3) The primary aim of this Amendment, passed in the wake of the Civil War, was to prevent states from abrogating the rights of the former slaves.
posted by Gerald S Glazer at 11:51 AM
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