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Abortion access in the U.S.

Roe v. Wade: Its basis; court
philosophies; political aspects


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About the Roe vs. Wade decision:

Prior to 1973, abortions were permitted in certain states but restricted or almost banned in others. Every state legislature created its own rules. There was no consistency across the U.S. Then, in 1973, the U.S. Supreme Court delivered one of its most famous and influential rulings: Roe v. Wade. It declared a Texas anti-abortion statute unconstitutional and thereby affected abortion laws in many other states. 1

The Supreme Court justices determined that, anywhere in the U.S.:

  • During the first three months of pregnancy, a woman and her physician may jointly decide to terminate a pregnancy. No significant state interference is allowed.
  • Later in pregnancy, states can restrict abortion access with laws but only if they are intended to protect the woman's health.
  • Once the fetus is viable, an abortion must still be available if the woman's health or life are at risk. State governments are free to pass legislation that will allow or prohibit late-term abortions -- those on a viable fetus -- for other reasons.

Other regulations covering abortion access:

The regulations of the state's medical association usually place an additional level of restriction on physicians who perform abortions. The regulations typically prohibit late-term pregnancy terminations except for serious medical reasons. Each association places a gestational limit beyond which abortions are generally prohibited -- e.g. 20 or 22 weeks. A physician who violated these regulations would risk having their license to practice medicine terminated or suspended.


The basis of the Roe v. Wade decision:

The Supreme Court based its abortion access decision on the right of personal privacy which the court finds implicit in the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.

"Due process of law is a legal concept that ensures the government will respect all of a person's legal rights instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. Due process has also been interpreted as placing limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice and liberty" to all citizens. 2

The Supreme Court has determined that the due process clause implies that governments cannot pass legislation that intrudes too deeply into the personal life of its citizens. There are limits to the ability of states to control personal behavior.

Section 1 of the 14th Amendment states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws." (The due process clause is emphasized) 3

Under this clause, the U.S. Supreme Court has "...recognized such rights and the right to an early abortion, the right to use contraceptives, [and] the right to medical treatment..." 3 For opposite-sex couples, the court has also recognized "...the right to marry." 3 In mid-2003, the court also based its Lawrence v. Texas ruling on the right to privacy. That decision gave heterosexual, bisexual and homosexual adults the right to engage in private consensual sexual activities, even if society generally disapproved of the behavior.

Mr. Justice Stewart referred to the Fourteen Amendment when he issued a concurring statement in Roe v. Wade. He wrote, in part:

"Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment. It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas."

Reversing Roe v. Wade:

This ruling has been in effect for over three decades. But it could be reversed at any time.

Consider the ruling by the U.S. Supreme Court in its famous 1986 case: Bowers v. Hardwick. That decision affirmed that the State of Georgia had the authority to pass laws which criminalized private, consensual same-sex behavior which the legislators felt was improper or immoral. Seventeen years later, in 2003, the Court issued its Lawrence v. Texas ruling which repudiated and apologized for its former decision. The majority of justices changed their mind and ruled that states no longer had the authority to criminalize private consensual activities, simply on the grounds that most people considered the behavior to be immoral. They based this decision on the 14th amendment's right of personal privacy and liberty -- the same basis on which Roe v. Wade was decided. Justice Kennedy, writing for the majority, apologized for the court's 1986 error. In an amazing passage, he stated that Bowers' "continuance as precedent demeans the lives of homosexual persons....[That decision] was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." The 2003 vote was 5 to 4. This is a very common ratio for cases involving moral and ethical topics -- particularly those involving human sexuality.

There is no reason why the court could not similarly overturn its 1973 Roe v. Wade ruling in the future. Many observers believe that there would be a 5 to 4 vote in favor of retaining Roe v. Wade if the case had been revisited in early 2005. A reversal in opinion by only one justice would free the states to pass laws which would allow individual states to re-criminalized early abortions. That became a distinct possibility by early 2006 when a swing-voting Justice and a strict constructionist justice were replaced by two strict constructionist justices. Shifting of the court even further to the right might occur in the near future if the rumors are true that one of the existing judges is planning to retire.


How judges and justices view laws and constitutions:

Generally speaking, there are two conflicting ways of viewing laws and constitutions:

  • As living documents: The document's meaning is continually evolving to meet changing cultural beliefs, practices, and knowledge. Justice Scalia describes what he called this "conventional fallacy" as interpreting the meaning of the text : "...from age to age [as] whatever the society (or perhaps the Court) thinks it ought to mean." In Trop v. Dulles (1958) the court discussed the evolution of the meaning of the cruel and unusual punishment clause in the U.S. Constitution's Eighth Amendment.  The Court had earlier recognized that: "the words of the Amendment are not precise...and that their...scope is not static.. They stated in Trop v. Dulles that "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." 4
  • As an enduring document: Justice Scalia, and other conservative Justices on the Supreme Court, agrees with this position. They are often referred to as "strict constructionists." They interpret a legal document as meaning "today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted." 5 Viewing the Bill of Rights and the rest of the U.S. Constitution as an enduring document requires that the courts consider the society and the era in which the text was actually written. They interpret the text within the belief systems of that time. On matters such as abortion access, the death penalty, equal rights for gays and lesbians, and other "hot" topics, there has been considerable change during the intervening centuries. But today's understanding is immaterial when it comes to interpretation of the Constitution as an enduring document. The U.S. Constitution does not discuss sexual orientation or abortion. Thus it is neutral on these and similar topics. A state could pass a law criminalizing same-sex behavior or making any or all abortions illegal. It could not be declared unconstitutional if a majority of Supreme Court justices become strict reconstructionists.

Three justices of the Supreme Court, all of whom were appointed by Republican presidents, appear to interpret the Constitution consistently in this way. They tend to vote as a conservative block on ethical and moral matters. They are Chief Justice William Rhenquist (appointed by President Nixon) and Justices Antonin Scalia (appointed by President Reagan) and Clarence Thomas (appointed by President George Bush).

Their method of interpreting the Constitution has influenced their decisions in cases involving abortion access:

  • The 1992 case of Planned Parenthood v. Casey involved a Pennsylvania law that required a woman seeking an abortion to have given informed consent, to have waited for a 24 hour cooling-off period, to have the consent of one parent (if she was a minor) and to have informed her husband (if she were a married adult). Chief Justice Rehnquist joined Justices White, Thomas, and Scalia in a dissent that stated, in part:
    "Because abortion involves the purposeful termination of potential life, the abortion decision must be recognized as sui generis, different in kind from the rights protected in the earlier cases under the rubric of personal or family privacy and autonomy. And the historical traditions of the American people - as evidenced by the English common...law and by the American abortion statutes in existence both at the time of the Fourteenth Amendment's adoption and Roe's issuance - do not support the view that the right to terminate one's pregnancy is 'fundamental'....The correct analysis is that set forth by the plurality opinion in Webster, supra: a woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may regulate abortion procedures in ways rationally related to a legitimate state interest. The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so." 6
  • In the 2000 case of Stenberg v. Carhart which struck down the Nebraska partial-birth abortion ban, "Chief Justice Rehnquist and Justices Scalia and Thomas once more urged that the issue of abortion be returned to the states." 7
    • Justice Scalia stated in his dissent that:
      "... the Court should return this matter to the people -- where the Constitution, by its silence on the subject, left it -- and let them decide, state by state, whether this practice should be allowed." 8
    • Justice Thomas, writing the main dissent for himself, Chief Justice Rehnquist, and Justice Scalia, stated:
      "Abortion is a unique act, in which a woman's exercise of control over her own body ends, depending on one's view, human life or potential human life. Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so. " 8

    Letting the "people of this country" decide should not to be interpreted literally as a pro-choice stance. These justices see no "fundamental right" for women to choose to have an abortion. The Justices appear to be stating that the state legislatures should decide who is to be permitted to choose to have an abortion.


The 2004-NOV presidential election:

It was generally acknowledged that the president would have the opportunity to nominate three new justices to the U.S. Supreme Court during his 2004 to 2008 term.

President George W. Bush has indicated that he did not have a pro-life "litmus test" for his appointments to the Supreme Court. But he has also indicated that he will use Justices Scalia and Thomas as a model when selecting new nominees. Some observers felt before Bush's reelection that:

  • There is zero possibility that the President would nominate a Justice who is pro-choice.
  • If the number of very conservative justices is increased by one, Roe v. Wade may well be overturned.
  • If the number is increased by two, Roe v. Wade will almost certainly be overturned, and Griswold v. Connecticut -- the decision that decriminalized access to contraception supplies -- may be in danger.
  • It is conceivable, but improbable, that the Supreme Court could make a blanket decision that human personhood begins at conception. This would mean that every fertilized ovum has a right to life. All abortions would then be, by definition, murder. Essentially all abortions would be outlawed throughout the U.S. Self defense would be the only justification for an abortion.

Democratic nominee John Kerry was reported as having stating early in his campaign:

"I'm the only candidate running for president who hasn't played games, fudged around. If you believe that choice is a constitutional right, and I do, and if you believe that Roe v. Wade is the embodiment of that right ... I will not appoint a justice to the Supreme Court of the United States who will undo that right." 9

If Kerry had been elected president, he would probably have acted to move the current pro-life/pro-choice balance of the Supreme Court in a liberal direction.

As it happens, by early 2006, one "swing voting" justice and one a strict constructionist justice have been replaced by two with the latter philosophy, making a net increase of one conservative justice. Roe v. Wade may be overturned.


Justice Antonin Scalia states that abortion right not in constitution:

Justice Scalia debated with Nadine Strossen, president of the American Civil Liberties Union (ACLU) on a one-hour television program on 2006-OCT-15. Justice Scalia said that unelected judges have no place deciding politically charged questions in areas where the U.S. Constitution is silent. He said that liberal judges in the past had established new political rights, such as abortion access. He warned:

"Someday, you're going to get a very conservative Supreme Court and regret that approach. ... On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through [our elected] representatives or a constitutional amendment."

He generally disagrees with the stands taken by the ACLU. However, he noted cases where he has agreed. These include rulings upholding the right of a citizen to burn the flag, and a 2004 decision that that a U.S. citizen seized in Afghanistan during wartime could challenge his detention as an enemy combatant in U.S. courts. 10


Related essay:


References:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Jerry Goldman et al., "Roe vs. Wade, 410 U.S. 113 (1973)," Text, abstract, etc. are online at:  http://www.oyez.org/
  2. "Due process," The Free Dictionary, at: http://encyclopedia.thefreedictionary.com/
  3. "Encyclopedia: United States Constitution/Amendment Fourteen," NationMaster.com, at: http://www.nationmaster.com/
  4. "Trop v. Dulles," U.S. Supreme Court, 1958-MAR-31, at: http://caselaw.lp.findlaw.com/
  5. Antonin Scalaia, "God's Justice and Ours," First Things 123, 2002-MAY, Page 17 to 21.
  6. Jerry Goldman et al., "Planned Parenthood v. Casey, 505 U.S. 833 (1992)."  Text, abstract, etc. are  online at: http://www.oyez.org/
  7. Paul Benjamin Linton, "How Not To Overturn Roe v. Wade," First Things 127, 2002-NOV, Pages 15 to 16.
  8. Jerry Goldman et al., "Stenberg v. Carhart. 530 U.S. 914 (2000) ."  Text, abstract, etc. are  online at: http://www.oyez.org/
  9. "Kerry Sets Pro-abortion Litmus Test for Judges," NewsMax.com, 2004-JAN-26, at: http://www.newsmax.com/
  10. Hope Yen, "Scalia says Constitution doesn't back abortion," The Associated Press, 2006-OCT-16, at: http://www.romingerlegal.com/

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Copyright 2004 to 2008 by Ontario Consultants on Religious Tolerance
Latest update: 2008-OCT-25
Author: B.A. Robinson

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