Legislative Blog
J.B. Williams, J.D.
Roe Review
A Blog about Abortion
A Bit of Background
The following backgrounds help summarize the author's views on both the general topic: Other and more specifically Abortion as it relates to that topic.
Brief Summary of Other
Topics here may be related to legal matters but not innately legal. For instance, discussing grocery plastic bags versus cotton cloth bags. The item itself is not legal but many city governments have placed it into legislation.
Summary of Abortion
This topic is getting a lot of press again right now. It is always bubbling in the background, and now it seems to be at a boil. My opinion has always been that this is not a right protected under the constitution - that is there is no right to an abortion. I feel much the same about the claim of right to healthcare. You do not have the right to force someone else to provide these things to you. That being said, I also feel that you should not be required to continue a pregnancy that was a mistake - either contraceptive failure or assault. But I also feel that you need to be a responsible adult, and at a point there is a life inside of you that is owed protections as well. Since I do not think it is a Constitutional right, I have always felt state legislatures should be the ones making the laws. And they should be responding to their constituents when doing so.
Blog Summary
Initially a 3 judge District Court held the law void as vague and overbroadly infringing on both the 9th and 14th Amendment rights. Upon appeal the Court held that Roe had standing to sue but that the couple and the licensed physician did not. The court held that criminal abortion laws, that only except for the life of the mother, and have no regard for the stage of pregnancy violate the 14th Amendment's due process clause. They saw this as violating the right to privacy against state actions. Though they did say that the state has a legitimate interest in protecting both the pregnant women's health and the potential of human life.
The court recognized that many states had laws prohibiting abortion except when the mother's life was endangered. And that such laws had been true for approximately a century. The court goes on to name a multitude of laws and acts that find abortion of a quick fetus to be a felony and that prior to quickening it was treated less severely. It doesn't say it wasn't not a crime at all, but a less severe crime under the laws.
They granted the right of personal privacy included abortion decisions but that it was not an unqualified right and must be balanced against the states interest in regulation. They concluded that the 14th Amendment did not encompass unborn because of the lax laws regarding abortion practices. (These are the same laws cited earlier, whose writings the court relied upon and were later found to not be factual.)
'This situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education.' The state does at some point have an interest in the health of the mother or that of the potential human life. They do not conclude when life begins because, as they state, 'the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus'.
After the first trimester a state has the right to regulate abortion procedures in a reasonable means to protect maternal health. So the person performing the abortion, the location at which the abortion is performed, the licensing of the facility and the like were all things the state could regulate. Once the fetus if viable, then the state may proscribe abortion except when necessary to preserve the life or health of the mother.
In his dissent, Justice Rehnquist finds that court found a right within the 14th Amendment that was 'completely unknown to the drafters'. And he went on to find that at least 36 states or territories had laws limiting abortion when the 14th Amendment was enacted. And that 21 of the laws in place at that time were still on the books when this case was heard. Since these laws were on the books when the 14th Amendment was passed, and the Amendment does not make reference to abortion, then the drafters did not intend for the Amendment to withdraw this power from the state legislatures.
Roe Review
Published: 2022-05-22
Roe V Wade
(1973)
Argued 12/13/71 Decided 1/22/73
Roe was brought by a pregnant single woman as a class action suit challenging the constitutionality of Texas criminal abortion laws. Abortion was forbade except on medical advice to save the mother's life. Both a licensed physician, who was facing prosecution, and a childless married couple intervened. The couple was concerned over contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. The couples case was dismissed as not being currently in controversy, just something that may occur. Roe and the licensed physician's claims moved forward.
Initially a 3 judge District Court held the law void as vague and overbroadly infringing on both the 9th and 14th Amendment rights. Upon appeal the Court held that Roe had standing to sue but that the couple and the licensed physician did not. The court held that criminal abortion laws, that only except for the life of the mother, and have no regard for the stage of pregnancy violate the 14th Amendment's due process clause. They saw this as violating the right to privacy against state actions. Though they did say that the state has a legitimate interest in protecting both the pregnant women's health and the potential of human life.
For approximately the first trimester, the decision was to be held to the medical judgment of the attending physician. For the next stage, the court felt that the states could regulate abortion in ways reasonably related to maternal health. For the stage subsequent to viability the state could regulate to protect potential of human life. Two justices filed dissenting opinions.
The court's opinion recognized that statutes, like the Texas one being challenged, existed in many states for approximately a century. While the Georgia statute had a more modern cast and was more of a legislative product. The court even acknowledged that Texas first enacted a criminal abortion statute in 1854, and that some modifications were made to it in 1898. However the underlying abortion being criminal remained substantially unchanged.
Roe claimed a right to personal liberty under the 14th Amendment's Due Process Clause; or 'personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights'.
The Court stated that ancient religion did not bar abortion. It also states the Hippocratic Oath states 'I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce an abortion.' But this is discarded as being only a Pythagorean doctrine since they felt the embryo was animate from the moment of conception. And the court felt that it was later embraced by Christianity, and hence it's apparent rigidity. They went on to state that common law did not hold abortion illegal before 'quickening'. Then it went on to state that whether abortion of a quick fetus was a crime is still disputed based upon Brocton. But it also stated Blackstone in that abortion after quickening was once manslaughter but was treated less severely in modern law. (The court's reliance here upon abortion being accepted in common law is what the leaked opinion addressed as reliance upon article that was later shown to be false.) The court here did recognize that English law criminalized abortion. That a quick fetus abortion was a capital crime, but prior to quickening was a lesser penalty. It even mentions the Infant Life Act in 1929 that made destruction of a child capable of being born alive a felony, except n the case of preserving the life of the mother.
Then the court went on to discuss American law. Stating that after the 'War between the States' legislation began to replace common law regarding abortion. That most statutes dealt more severely with abortion after quickening than prior to. And most treated attempted abortion the same as completed abortions. The court acknowledged that states provided exceptions regarding saving the mother's life, but that it changed in various ways. The court stated that states were generally getting stricter regarding abortion by the end of the 1950's, and a majority were banning abortion entirely, except when done to save or preserve the life of the mother. However, moving forward toward 1970, about 1/3 of the States were making abortion laws less stringent. The court did mention that the American Medical Associations view of anti-abortion may have played a role for when the laws were becoming more stringent. However, later the AMA shifted and felt that as long as the best interest of the patient, sound clinical judgment, and informed consent were used abortion should be approved. And that the procedure be performed in an accredited hospital after consultation with 2 other physicians, and that all were in agreement, then abortion could be performed.
The position of the American Public Health Association from a 1970 Executive Board for standards regarding abortion services was discussed. They felt that abortion should be widely available, and that 2nd trimester abortions and 1st trimester abortions with complications should be performed in a hospital. However, 1st trimester abortion could be preformed outside a hospital setting as long as arrangements for transfer to a hospital due to complications were readily available.
The court then went on to recognize that state's legitimate interest in ensuring the safety of patients for any medical procedure, including abortion. And that the state had a legitimate interest in ensuring an abortion was performed under circumstances that ensure maximum safety for the patient. This would include the physician and staff, facility, after-care availability, and adequate provisions for any complications that may arise. And the court recognized that as long as the least potential life is involved then the state had an interest in protecting it beyond the protection of the pregnant woman alone.
The court agrees that while the Constitution does not explicitly mention any right of privacy, there are guarantee of certain areas of privacy. Only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty' are included in this guarantee. It is recognized in marriage (Loving v Virginia, 1967), procreation (Skinner v Oklahoma, 1942), contraception (Eisenstadt v Baird, 1944), and child rearing and education (Pierce v Society of Sisters, 1925). They interpreted the right of privacy as either under the 14th Amendment's concept of personal liberty or the 9th Amendment's reservation of rights of the people, and that it was broad enough to encompass abortion. This was based upon the following:
- 'specific and direct harm medically diagnosable even in early pregnancy' - health of the mother would allow for abortions in most, if not all, states
- 'maternity may force upon the woman a distressful life and future' - adoption is not frowned upon, and states have laws for leaving a child anonymously
- 'psychological harm may be imminent' - I think this cuts both ways. I don't think this considers the psychological harm having an abortion may have.
- 'mental and physical health may be taxed by child care' - again adoption is a viable option, as well as asking for assistance
- 'distress associated with an unwanted child' - adoption is an answer here
- 'bringing a child into a family already unable to care for it' - adoption or asking for assistance
- 'stigmas of unwed motherhood' - not an issue today, then adoption was still an option
These sound like a laundry list of items that state legislatures should be reviewing, not a court. The court here did state that while Roe argued that 'the woman's right to abortion is absolute and she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.' And the court did not agree with this. It recognized that while there was some right to privacy, that some state regulations in this area is appropriate. It noted 'a state may properly assess important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.' They granted the right of personal privacy included abortion decisions but that it was not an unqualified right and must be balanced against the states interest in regulation. They concluded that the 14th Amendment did not encompass unborn because of the lax laws regarding abortion practices. (These are the same laws cited earlier, whose writings the court relied upon and were later found to not be factual.)
However the court does not find the right of the woman as absolute because she carries an embryo and later a fetus. 'This situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education.' The state does at some point have an interest in the health of the mother or that of the potential human life. They do not conclude when life begins because, as they state, 'the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus'.
They go on to discuss how the law deals with the unborn, stating that most states are allowing recovery for injuries when the fetus was viable. And it recognizes unborn children being recognized for acquiring rights or interest via inheritance or other devolution of property. Even that they are represented by guardian ad litems. However it discards those as not granting the unborn rights since they do not come to final fruition until birth. (Rather contrary to a cause of action for wrongful death of a fetus.) But it still finds the state has an interest in the health of the woman and the protection of potential human life, and that these grow more compelling as the pregnancy approaches birth.
Since, at the time of this finding, the life expectancy of the mother was nearly equal in carry the child versus aborting the fetus during the first trimester, the state's interest did not grow enough to overcome the mother's rights until that time. After the first trimester a state has the right to regulate abortion procedures in a reasonable means to protect maternal health. So the person performing the abortion, the location at which the abortion is performed, the licensing of the facility and the like were all things the state could regulate. Once the fetus if viable, then the state may proscribe abortion except when necessary to preserve the life or health of the mother.
Justice Rehnquist, dissenting
He finds issue in that there is no finding of fact that Roe was in the first trimester of pregnancy when the filing commenced. There was merely a finding that she was indeed pregnant. Since Roe could have been in her last trimester of pregnancy, he feels the court made a decision based upon a hypothetical lawsuit. And in so doing, it departed 'from the longstanding admonition that it should never formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied'.
Justice Rehnquist goes on to state he has difficulty concluding that the right of privacy is involved in the case. He finds it to not be within the privacy of the 4th Amendments regarding search and seizures, which he state the court claims embodies the right to privacy. (Katz v United States, 1967) However, if by privacy it is meant to encompass a form of liberty protected by the 14th Amendment, then similar claims have been upheld in earlier court decisions. He agrees with Justice Stewart that liberty without due process of the 14th Amendment is protected, but that liberty is not guaranteed absolutely against deprivation. So he felt the test should have been one applied in area of social and economic legislation and the laws rational relation to a valid state objective. Even he states that the court's weighing of competing factors is a test more appropriate for a legislature than a judiciary. And he felt the court's transformation of the compelling state interest test would leave this area of law more confused than it found it. (I think he was 100% correct on this one.) He found that this decision was more in line with judicial legislation and less with the intent of the drafters of the 14th Amendment. Even re-stating the Courts finding that a majority of states have had restrictions on abortions for at least a century to be support that the right to abortion is not rooted in traditions and conscience of the people.
Justice Rehnquist finds that court found a right within the 14th Amendment that was 'completely unknown to the drafters'. And he went on to find that at least 36 states or territories had laws limiting abortion when the 14th Amendment was enacted. And that 21 of the laws in place at that time were still on the books when this case was heard. Since these laws were on the books when the 14th Amendment was passed, and the Amendment does not make reference to abortion, then the drafters did not intend for the Amendment to withdraw this power from the state legislatures.
Furthermore even if you agree that the facts before the court warrant a decision, and agree that the 14th Amendment protects the right to abortion in some manner but not all, then why did the court strike down the Texas statute in whole. In the past, the Court's practice had been if a statute was unconstitutional for the case before the court but not in all cases, then it was declared unconstitutional only as applied to the facts before the court only.
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