Personal and Constitutional Considerations - Essay Example

Roe v. Wade: Personal and Constitutional Considerations In 1970, a pregnant woman (Norma McCorvey, who was called Jane Roe in the case filings to protect her privacy) filed suit against the District Attorney of Dallas County, Texas, Henry Wade, on the grounds that the Texas law prohibiting abortions except for in cases of proven rape was unconstitutional. After several appeals, the case reached the Supreme Court, which ruled 7 to 2 in favor of the plaintiff. The Court upheld Roe’s contention, basing its opinion on the Fourteenth Amendment’s Due Process clause, which protects an individual’s right to privacy. Justice Blackmun, writing for the majority, acknowledged that the state had an interest in regulating abortion as a way to reduce medical risk for women and to protect the lives of unborn children but argued that a woman’s right to terminate her pregnancy must be weighed against the rights of the state. As long as the fetus is not viable — the Court used an established definition of viability, which considered a fetus viable at the point it is able to live outside its mother, even if some artificial assistance is needed for it to do so — the state can only regulate abortions in ways that are reasonably related to maternal health. For abortions prior to the end of the first trimester, the Court held that the state should not interfere and should leave the decision-making to a pregnant woman and her doctor. Only for abortions during the third trimester of pregnancy, when the fetus is viable according to the Court’s definition, could the state prohibit abortion and only then if doing so did not significantly threaten the health of the pregnant woman. Blackmun went on to state that in questions of abortion, there is no consideration of a fetus’s right to life under the protection of the Fourteenth Amendment because the Fourteenth Amendment protects only Americans who have been born. There is no Fourteenth Amendment protection for the unborn. Blackmon adds, in note perhaps to the spirit of the times, that the Court’s ruling is not intended to serve as an answer to the question of when life begins but only as a statement of the reach of the Fourteenth Amendment. The Court therefore struck down the Texas law prohibiting abortion as unconstitutional. Roe v. Wade remains a milestone case, setting the stage for countless arguments between those who support abortion and those who would do away with it. Though I agree with the gist of the Court’s decision — that a woman should be able to obtain a legal abortion, especially early in pregnancy — I find the legal basis for the Roe v. Wade decision a little shaky. Protecting the right to seek an abortion under the Fourteenth Amendment’s right to privacy seems a bit of a Constitutional stretch. Blackmun argued that the right to privacy guaranteed by the Fourteenth Amendment was “broad enough to encompass a womans decision whether or not to terminate her pregnancy.” I tend to agree with Justice Stewart, who in his concurring opinion wrote that the Court’s decision should be based not on an unnatural extension of the right to privacy but on the guaranteed protection of “liberty” written in the Fourteenth Amendment — a term, Stewart points out, designed to be intentionally vague so that it could be applied to rights outside the rights otherwise specified by the Constitution and one that had been previously applied to cases of reproductive freedom, such as Eisenstadt v. Baird. Blackmun’s opinion seems to leave too much room for argument by taking such a liberal interpretation of the Constitution. With that said, I absolutely agree that the Court’s decision was the morally correct one. In any circumstance where there is the potential for harm, one must weigh the known risks more heavily against the unknown risks. In the case of abortion, it is impossible to know with any certainty the moment of conscious life in a fetus — it could be at conception, at the moment of viability or at some other mysterious point of fetal development. Under current medical science there is simply no way to know, and fetal consciousness, therefore, should only be taken into account in cases of abortion if the mother of the fetus believes that it should. In cases where the mother believes in the consciousness of the fetus and ascribes to the fetus a right to live based on that belief, she — and only she — should make the complicated and difficult determination of whose rights come first in that particular case. In cases where the mother does not have concerns about fetal right to life, the mother should also make the determination to terminate or not to terminate her pregnancy. The issue of late-term abortions taken by the Court in Roe v. Wade is perhaps an arbitrary distinction, but it’s one that I support as well. From a legal perspective, I believe it is helpful to have a specific guideline regulating abortion after a certain point in pregnancy since it makes it more difficult for states to enact laws that limit a woman’s right to an abortion; if a legal limit is already in existence, the state is bound to follow that limit rather than creating its own limit. From a moral perspective, I also think it’s problematic to allow late-term abortions as a matter of course. Though I certainly believe late-term abortions could be warranted in specific situations, particularly those in which the mother’s health is in question, I believe that women should generally make the decision to terminate a pregnancy for personal reasons within the first two trimesters. Women who have reached the third trimester should not be able to easily obtain an abortion for reasons that are purely personal because of the medical risks of late-term abortions. I’m also personally squeamish about late term abortions because the fetus seems more like a baby than a mass of cells, but I recognize that while my squeamishness would certainly be a factor in a personal decision about abortion, it’s unreasonable to impose my own squeamishness as a general moral principle to govern all women considering abortion. It’s important to note that the Court’s decision doesn’t make all abortion absolutely illegal. Except for in the first trimester, states can impose reasonable restrictions on abortion as long as the restrictions don’t impose undue difficulties for pregnant women seeking an abortion. States are also not required to make abortions available — if there are no abortion providers in a particular town, for example, the state is not required to ensure that the town has an abortion provider — nor are they required to use state funds to make abortions available to women who cannot afford them. Limiting abortion rights to women who can afford to pay for them seems to me potentially problematic, since it denies access to women who have historically been likely to seek abortions, but the Supreme Court upheld this aspect of Roe v. Wade in the 1980 ruling in Harris v. McRae. It’s obvious that the Roe v. Wade decision is one that generates tremendous controversy, even among the Court itself. Justices White and Rehnquist were the decision’s first — and most official — dissenters. Both questioned the extension of the Fourteenth Amendment’s protection to include a woman’s right to terminate her pregnancy, with Rehnquist pointing out that it was problematic to assume the authors of the Constitution might have intended the Fourteenth Amendment to include reproductive rights when there were laws in effect outlawing abortion in several states at the time the Fourteenth Amendment was drafted, implying that the authors of the Fourteenth Amendment intended that right to remain with the states. While eloquent, Rehnquist’s argument is not a strong one: The Constitution must be able to adapt to interpret changes in circumstance. In the case of abortion, when the Fourteenth Amendment was drafted in the 1860s, abortions were risky procedures that often resulted in infection and death. Advances in science have made abortion, especially during the first and second trimester, a safe medical procedure with few risks. The change in circumstances is one that any interpreter of the Constitution must consider in his ruminations. The moral issue is a more complicated one and one that generates strong feelings in many people. Some tenets of the Christian faith suggest that the moment of conception is the moment of life, and for people who believe that to be the case, abortion is murder — worse, it is the murder of a defenseless and unborn child. It’s hard to argue with that belief since it is just that: a belief. There’s no concrete scientific evidence to support the idea that a fetus is “alive” from the moment of conception, nor is there evidence to render that belief incorrect. Like the existence of God or the origins of the universe, the consciousness of fetal life is one about which each individual must form her own opinion based on her own beliefs and what seems right to her. To me, this fact more than any other makes it clear that the government has no business to interfere in a woman’s right to seek an abortion: Because there is no way of knowing at what point fetal consciousness begins, there can be no reasonable guidelines established for permitting or prohibiting abortion at any given point in a pregnancy. Because there can be no reasonable guidelines established, the question of whether to terminate a pregnancy must be left to the individual woman. Because the question must be left to the individual, in order to freely exercise her freedom to choose, a woman must have legal access to abortion services during her pregnancy, should she choose to terminate it. Because she must have this access, states should not be able to enact laws preventing her from accessing these services. Arguing about moral issues is impossible, since people’s beliefs are their beliefs. Leaving morality out of the equation and focusing on the legality of abortion is the only way to responsibly deal with the questions raised in Roe v. Wade. Works Consulted Balkin, Jack, Ed. What Roe v. Wade Should Have Said; The Nation’s Top Legal Experts Rewrite America’s Most Controversial decision. New York: NYU Press, 2005. Ginsburg, Ruth. “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade.” North Carolina Law Review 375; 1985. Mears, William; Bob Franken (2003-01-22). “30 years after ruling, ambiguity, anxiety surround abortion debate.” CNN. Roe v. Wade, 410 U.S. 113 (1973). Read More