Roe v. Wade

From Conservapedia
This is an old revision of this page, as edited by RSchlafly (Talk | contribs) at 04:56, May 1, 2007. It may differ significantly from current revision.

Jump to: navigation, search
Roe v. Wade
410 U.S. 113
Decided: 1973

Roe was a landmark Supreme Court ruling legalizing abortion in limited circumstances in 1973.

Opinion

The opinion written by Justice Harry Blackmun. Notable for its definition of fundamental rights, the opinion is an expansion of the Supreme Court's jurisprudence under the Fourteenth Amendment, which, along with Griswold v. Connecticut, sets up spheres of personal activity which the state cannot regulate without good cause.[1] Specifically, the Court held that the Fourteenth Amendment protects implicit rights enumerated in its penumbra, if not the text itself, which includes the right to privacy.[2] The holding of the Court has become a foundation of fundamental rights jurisprudence, and has been heavily relied upon since it was decided, and underpins many other famous cases, such as Lawrence v. Texas.[3]

Specifically, Blackmun argued that the right to terminate a pregnancy is in the penumbra of privacy rights protected by substantive due process, since pregnancy can occasion life-changing events for women, changes not to be taken lightly. However, he noted that the woman's interest in her own privacy is counterbalanced, obviously, by the fetus' interest in life, and the state's interest in protecting life. The question, then, is when each interest trumps the other, and what that means at law. Blackmun set up this framework specifically:

  1. In the first trimester, the right of the fetus is negligible. The mother can get an abortion at any time and for any reason, provided that a physician is willing to do it. No significant regulation can be required.
  2. In the second trimester, the right of the fetus is negligible. The mother can get an abortion at any time and for any reason, provided that a physician is willing to do it. No significant regulation can be required.
  3. In the third trimester, the right of the fetus is negligible. The mother can get an abortion at any time and for any reason, provided that a physician is willing to do it. No significant regulation can be required.

All state regulations of late-term abortions have since been found unconstitutional. Recently the federal Partial Birth Abortion Act (upheld in Gonzales v. Carhart) approved a ban on a particular kind of late-term abortion procedure. This was the first significant abortion regulation that the Supreme Court has allowed since Roe v Wade.

Controversy

Several cases, up for decision at the Supreme Court in the 2007 term, may whittle away at the holding of the case. Specifically, a South Dakota law banning nearly all abortions is seen as a deliberate attempt to force a test case, where "pro-life" activists will have a chance to ask the Supreme Court to reconsider Roe.[4] However, while Roe may be highly distinguished in these cases, the fact that the central holding of Roe v. Wade is so important to modern civil rights jurisprudence suggests that the whole case is unlikely to be overturned in its entirety, based on the United States concept of stare decisis, or respect for legal precedent. Under this outlook, losing Roe's holding would be fatal to an entire constitutional structure, which the Court disfavors.[5]

Some commentators suggest that limitations of Roe may actually be good for the "pro-choice" movement, as it would allow "pro-life" activists to vent their animosity against judicial activism, while forcing the public to create a more moderate legislative solution to the problem. These commentators perceive the American public as more moderate than either the "pro-life" or "pro-choice" movements.[6]

References

  1. See generally Griswold v. Connecticut, 381 U.S. 479
  2. See Roe v. Wade, 410 U.S. 113
  3. See, e.g., Lawrence v. Texas, 539 U.S. 558
  4. The Economist, http://www.economist.com/agenda/displaystory.cfm?story_id=E1_VVJRJTN
  5. See Lawrence v. Texas, supra (relying strongly on Roe v. Wade)
  6. The Economist, http://www.economist.com/world/na/displaystory.cfm?story_id=E1_VNSRJQV