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Introduction
No decision of
the Supreme
Court in the twentieth century has been as controversial as the 1973 Roe
v. Wade decision holding that women have a right to choose to have
an abortion during the first two trimesters of a pregnancy.
Attorneys
for Roe had suggested several constitutional provisions might be
violated
by the Texas law prohibiting abortions except when necessary to save
the
life of the mother. The law was said to have been an
establishment
of religion in violation of the First Amendment, unconstitionally vague
(the ground used in Blackmun's first draft of his opinion), a denial of
equal protection of the laws, and a violation of the Ninth Amendment
(which
states that certain rights not specified in the first eight amendments
are reserved to the people). The Court in Roe chose,
however,
to base its decision on the Due Process Clause of the Fourteenth
Amendment
and the so-called "right of privacy" protected in earlier decisions
such
as Griswold v Connecticut (striking down a ban on the use,
sale,
and distribution of contraceptives). Deciding HOW to protect the
right to an abortion proved as difficult. Justice Blackmun's
approach,
one clerk at the time said, "As a practical matter, was not a bad
decision--but
as a constitutional matter it was absurd." Roe's
trimester-based
analysis generally prohibits regulation of abortions in the first
trimester,
allows regulation for protecting the health of the mother in the second
trimester, and allows complete abortion bans after six months, the
approximate
time a fetus becomes viable.
Norma McCorvey, the woman who as "Jane Roe"
challenged
the abortion law of Texas in Roe v. Wade.
It was assumed
by most
observers of the Court in 1992 that Planned Parenthood v Casey
would
be the vehicle for for overturning Roe. Instead, three swing
members
of the Court (Souter, O'Connor, Kennedy) joined in an opinion retaining
the core right recognized in Roe while rejecting the trimester-based
framework.
The three justices used stare decisis to justify their decision. Casey
leaves courts to grapple with abortion regulations through application
of a new test: Does the regulation in question place an undue burden on
a woman's right to choose an abortion? Using this new test,
courts
have upheld some abortion regulations (such as 24-hour waiting periods)
while striking down others.
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The Court Upholds a Federal Ban on "Partial
Birth" Abortions
In 2007, in the
case of Gonzales
v Carhart,
the Supreme Court upheld a federal law banning so-called "partial birth
abortions." Congress, in its findings, had declared the late-term
abortion procedure to be "never medically indicated." Certain
medical associations disagreed with this finding, and the Court did not
rule out as applied challenges to the law in which individual women
might argue that the procedure is the best available to preserve their
health--although, given the time and expense involved in bringing such
a challenge, this option might not be very viable. (Will a
doctor, in the middle of an abortion in which he decides the
"partial birth" procedure would be less dangerous, really run off to a
court to get permission?) Justice
Kennedy provided the key fifth vote in the case. The case did not
purport to overrule a decision seven years earlier in which the Court
(with
Justice O'Connor providing the key vote) had struck down a Nebraska law
banning the same procedure as "an undue burden" on the women's right to
an abortion, but instead relied on the special deference that it said
should be given to congressional findings.
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Links
National
Abortion Rights League
NOW's
Abortion Rights Page
National
Right to Life Committee
Summary
of Roe v Wade Arguments
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Cases
Roe
v. Wade (1973)
Planned
Parenthood v. Casey (1992)
The Due
Process Clause:
No
State shall...deprive any person of
life, liberty,
or property, without due process of law.
Planned Parenthood Billboard
Questions
1. Is there a more
solid basis
for finding a right to an abortion in the Constitution than there is
for
finding a right to contract, the right recognized in Lochner v. New
York?
2. Is the
right of
privacy implicated when a woman has an operation performed on her in a
public place (hospital or clinic) by a person she probably barely knows?
3. Which seem
closer
to the core of an intelligible privacy doctrine--an abortion or
consensual
sex between adults?
4. If you
believe
that the Constitution doesn't protect the right to choose an abortion,
does it prevent a state from requiring that all couples be sterilized
after
the birth of their second child? If the Constitution does prevent
the latter, where is the prohibition found?
5. Might there be a
constitutional
right that protects the liberty of doctors to give the medical care
that
they see fit?
6. Why isn't
the state
interest in protecting life compelling until viability?
7. Is there a state
interest
in preserving respect for life that is weakened by allowing
abortions?
If abortions are not immoral, would you call them morally
dubious?
Why is infanticide morally wrong (if you believe that to be the case)
and
abortion not immoral?
8. On the
other hand,
why is aborting a first-trimester fetus (before the fetus has
significant
neurological development, emotions, or any other critical attributes of
humanness) any more more immoral than killing, for example, pigs that
do
have thoughts and emotional lives? Could you argue, in fact, that
killing a pig is the more immoral act?
9. Is the
argument
for extending full protection to a one-month -old embryo really a
religious
argument?
10. Who has
the better
of the argument on the issue of stare decisis and the Roe--Justice
Scalia or the three swing justices?
11. When is a
regulation
an "undue burden"? Where does this test come from? If the
right
to choose is really a constitutional right, why go on to ask whether
the
regulation unduly burdens that right? Do we ask whether a modest
tax on public speaking would unduly burdens speech?
Comparison of the Roe and Casey Regulatory Frameworks
Roe Framework
No
regulation permitted
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Can
regulate abortions to protect the health of the mother
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States
free to ban abortions to protect fetal life
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MONTH OF PREGNANCY
Casey Framework
Can
regulate abortions if not undue burden on right
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Viabi-
lity?
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States
free to ban abortions to protect fetal life
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MONTH
OF PREGNANCY
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