Monday, October 26, 2009

Thoughts Concerning Roe v Wade

ROE v. WADE, 410 U.S. 113 (1973)

Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973

Roe v Wade is arguably the most famous and controversial case ever decided by the Supreme Court. It touches on a number of issues that will likely never be completely settled, such as when life begins, when rights begin, and the flexibility of interpretation of the Constitution. The question at hand is not whether abortion should be allowed or not; the question is, can the state bar women from having this procedure? While this Court declared the states could not, I maintain that the Court did not base this decision on the Constitution, that the Constitution clearly leaves this power with the states, that abortion is not a fundamental or explicit right protected by the Constitution, and that this was a political decision the Court had no right to make.


I intend to summarize only the aspects of the case dealing with the final argument. Other sections of the case will not be summarized, though to avoid the pitfall of waiving off anything inconvenient as not relevant, I will explain why particular sections are not worth going into detail.

Sections I-IV of the majority's decision deal with whether the plaintiffs had standing on this issue, ruling that Roe does while another plaintiff, "Doe", does not. I do not see a controversy worth discussing herein these sections as they state that the plaintiffs can indeed bring this case to court, something I do not disagree with. They have no bearing on the actual decision, however, and are therefore not relevant to this discussion.

Section V states the plaintiffs claim, that abortions are a protected right under the 14th Amendment or "in personal, marital, familial, and sexual privacy" that was supposedly "discovered" in Griswold v Connecticut (a case worth discussing in its own right at another time).

Section VI is a strange section in that it details the history of legal and moral thought on abortion going back to Greek times. It constitutes a large portion of the case's text. Unfortunately, it does not deal with the Constitution; while this information may be interesting, it is not indicative of whether there is a Constitutional right to abortions. This is, in legal terms, called obiter dictum. It has no place in this decision as it in no way informs us as to how the Constitution should be interpreted on this issue. This section, though verbose, is irrelevant to the actual discussion at hand.

Section VII resembles section VI but focuses on reasons used to justify abortion bans in the United States. However, as the Court explicitly makes this section the basis for its decision, it needs to be summarized. Three particular reasons are put forth: Victorian concern over "immoral conduct," the medical aspect for the mother, and the protection of prenatal life. The State of Texas did not choose to defend the first and was dropped. The second reason was supposedly used during an era when such procedures were dangerous but states still need to regulate such procedures. The third argument stands if the State has an interest or duty to protect life or the potential for life.

Section VIII is the heart of the issue in that it attempts to find a Constitutional basis for a right to abortion. The Court explicitly acknowledges that "The Constitution does not explicitly mention any right of privacy"; however, the Court argues that rights discovered in the penumbras of the Bill of Rights include a right to privacy. They conclude that "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." However, the Court also recognizes that the State has a duty to protect life at some stage, so an unlimited right to abortion does not exist.

Section IX deals with objections made by both parties to this middle ground decision. The Constitution does not state when life begins; all mentions of "persons" appear to be postnatal. The Court also acknowledges that the woman's "right to privacy" is murky since it involves another living being, the fetus, which the state may at some point protect. Again, prenatal beings have never been accorded the full rights of law according to the Court's history.

Section X acknowledges the State's progressive interest in protecting prenatal life as the pregnancy continues. States have a "compelling" interest at "viability." Texas' law was too broad and therefore was unconstitutional.

While Section XI claims to summarize the case, it actually points out something new: "For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." Abortions prior to this point cannot be regulated.


The Court's decision is based exclusively on the concept of "privacy." However, as the Court itself admitted, there is no Constitutional provision for a "right to privacy." I find the argument that such "rights" can be found in the "penumbras" of legal terms rather frightening. Their argument can almost be summarized as "I claim such a right in this murky legal region; dare prove me wrong." A great many horrible things can be defended with a similar argument. How do I know a right to rape does not exist in those "penumbras?" Sounds ridiculous, but try proving it is not there. Our legal theory needs to be based on more solid ground.

This decision was based primarily in 14th Amendment to the Constitution, along with the 9th. This Amendment consists of five sections; 2-5 deal with the right to vote for representatives, judicial and executive functionaries, Confederate debt not being a responsibility of the United States, and Congress' ability to enforce this Amendment. Only the 1st section has relevance today. It 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 supposed right to abortion is not going to be found in the first sentence concerning citizenship. The privileges and immunities of the citizens of this nation are laid out in the Bill of Rights and following Amendments; none of them say abortion is a right, so this does not apply, either. In theory, this law could apply to men if they could become pregnant; that there is a biological difference between men and women is not a violation of the equal protection clause.

The only part of the 14th Amendment that could relate to abortion is whether the State is depriving the pregnant woman her life, liberty, or property sans due process. Punishment of abortion could take any of those forms (capital, imprisonment, or fines). The question is, are laws restricting abortion in accordance with due process? The procedural aspects are hard to challenge: this issue is not one delegated to the Federal Government; no Amendment or provision in the Constitution explicitly prohibits this law; the law was created by a republican form of government guaranteed by the Constitution. Where, exactly, was "due process" violated in banning abortions?

The actual impact of having to take a baby to term is that the woman cannot remove the infant from her body until nature chooses to do so. This might be seen as the State violating a woman's liberty in controlling her own person. However, this is not a punishment; the State did not impregnate her. In the vast majority of cases, the woman had an option to have sex and exercised it, an act of liberty which carries repercussions the woman may not pawn off. Those concerning rape are a different matter; I am not certain the State cannot prohibit abortions there, either, as again it is not the State inflicting a punishment. The 14th Amendment does not, in any way, shape, or form, defend a "right" to an abortion.

What about the 9th Amendment? It states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This is a problematic Amendment, along with the 8th, that I believe the Founding Fathers erred in including. However, it is still the Supreme Law of the Land and has legal force...if it can be understood. And so I pose to those who use this Amendment to defend any case, what are the "rights" mentioned in this case and how did you discover them? How does a proposed "right" become valid under this Amendment while the ridiculous "right to rape" does not? Until a sound theory is put forth for determining what rights this Amendment speaks of and how we shall know them, I propose we employ the 10th Amendment, which reserves all powers not expressly delegated to the Federal Government to the States and to the People, who may give such powers to the States as they see fit via republican forms of government. That being so, the people of Texas gave the power to restrict abortions to the State. The Constitution is actually fairly clear here: this is a power reserved to the States to deal with as they see fit and the Supreme Court has no jurisdiction to overrule the People of Texas or any other State that may choose to restrict abortions.

Note the distinctions between my opinion and that of the majority's. I am capable of citing the Constitution without resorting to magical hidden realms of penumbras. I take the areas supposedly protecting such a right and analyze them word for word.

In terms of shear reason, this case was a disaster. The Court actually claims that after the 1st trimester abortions can be regulated but not before. Where in the Constitution does the Court find this? It doesn't even claim such a foundation, but rather than the dictum explaining the past of abortion. Even if that history is accurate, the Court does not have any right to impose its views on the people. Such decisions are left to the democratic institutions that represent the people. The Court has a right and a duty to step in when the Federal Government exercises powers not delegated to them; when the State Governments exercise powers delegated to the Federal Government; and when either violates express rights protected in the Constitution. Outside of that, however, the Court performs an illegal and tyrannical legislative function that the Constitution does not give it legitimacy to perform. This is clearly such a situation.

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