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ROE V. WADE INVENTION OF RIGHT TO PRIVACY AND RIGHT TO ABORTION IN USA (By- Harris M Fazal)
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ROE V. WADE INVENTION OF RIGHT TO PRIVACY AND RIGHT TO ABORTION IN USA
Authored By- Harris M Fazal1
Without question, Roe v. Wadei is one of the
most controversial decisions. It's a case, but it's also a symbol. It's the only Supreme Court case that most
Americans can cite by name. Roe is interesting because
it did articulate the right
to abortion as a fundamental right. What the Court was saying is that the right to abortion
is to be treated in the same level with other sorts of fundamental rights. The right to marry, the right to procreate,
the right to take care of one's children etc. The
nine justices made abortion
largely a private matter.
The
US Supreme Court
had never before,
even vaguely, suggested
that restrictions on abortion were constitutionally suspect. There's
nothing in the history, text of the Constitution, or really of precedent, that would support the decision.
It took what was, really, a crime in most of the states in the United States, and in all, at some point, and it
turned it, overnight, into a constitutional right.
Jane Roe was a woman
in Texas who was pregnant
and didn't want to have her baby,
but Texas had perhaps the strictest, harshest, anti-abortion law in the country
so that, even if you were a documented victim of
rape or incest, you still were not allowed to have an abortion. It had the perfect state of facts, even though we now
know they were a lie. They claimed
that Norma McCorvey was raped, that was not the case. But it seemed to be the
most sympathetic possible
case.
Until 1973, the idea that
abortion was something women had a constitutional right to, and that states
had no authority to restrict
was really an odd idea. By the time
Roe v. Wade came down, she'd
already had the baby. So, the reason the case continued was because there was a
desire, both by litigants and by the
Supreme Court, to address the issue, not because there was an individual pressing case that someone
brought. The first argument was in the winter of 1971, but two Justices
had suddenly died prior to that argument
so they were short on the bench.
They have the oral argument
in Roe, shortly after, they have the oral argument in a case called Eisenstadt v. Bairdii, which was about extending the right to use contraception beyond married couples
to single people.
The right to privacy, as invented by the Supreme
Court, is the absolute foundation for the modern
jurisprudence on abortion. Privacy is a bit of a lightning rod and had
been a bit of a lightning
rod because it is not clearly established in the Constitution. In fact, there's no references to privacy of the
sort that would remotely have to do with contraception or other public morals laws of that nature. Substantive due
process is not actually described in Roe.
It's invoked. It's the underlying doctrine that gives us the right to privacy.
So, the Fourteenth Amendment has a
Due Process Clause, as does the Fifth Amendment. The Fifth Amendment applies to the federal
government, the Fourteenth to the states. And it says that "no
state shall deprive
any person of life, liberty,
or property without
due process of law." And, basically, substantive due process says that there are some rights that are sufficiently important that the legislature can't take them away,
arbitrarily without violating the Due Process Clause.
Eisenstadt v. Baird 1972 and Griswold v. Connecticut 1965 were key
judgments which formed a foundation
where Roe v. Wade could sit on.
The first opinion to suggest there's
a fundamental right to privacy
was Griswold v. Connecticut,iii
which was a 1965 case holding that married couples have a right to use contraception with a doctor's
prescription, contrary to a Connecticut law that banned such contraceptive uses. It's a violation of a
right to privacy, it's a violation of substantive due process, because this is the kind of intimate decision, no
different from who you marry, or whether
you have children, or how you raise your children, that should be given to the individual and the state shouldn't
be able to interfere with that.
Where did the Court purport to find
this right to marital privacy which includes a right to contraceptives? Well, since the Court couldn't find it in the
text, the majority said that they found it in "penumbras formed by emanations" of various constitutional guarantees. Unsurprisingly, what followed was a case that said, well, why should only married people
have a right to access contraception?
Single people should have that right as well. And that was Eisenstadt v. Baird. Griswold v. Connecticutiv opinion
had said that married couples have a right of
privacy that inheres in marriage.
Eisenstadt v. Baird 1972
It
was about extending the right to use contraception beyond married couples
to single people.
The right to privacy, as invented by the Supreme Court in this case, is
the absolute foundation for the
modern jurisprudence on abortion. Substantive due process is the underlying
doctrine that gives us the right to
privacy. It's fair to say, freedom of thought has a privacy element. Then we move to this decisional privacy,
which is the right to make decisions
without the
government directing the outcome of the decision-making process. And then we get to the right to act on the decision, regardless of the
community's beliefs that that action is contrary to the public good or contrary to what we would call state interests.
Eisenstadt didn’t use
“penumbras and emanation “of various constitutional guarantees. But instead, they contented There was a
constitutional right for people to make decisions that are very, very important to them. We call this
a right of privacy. So, what you have is a situation where what seemed to be a limited right to privacy in Griswold
that only applied to marital relationships now applies to all relationships.
And then the next step in Roe is to suggest that,
rather than only applying to contraceptives, it applies
more generally to the right of whether you want to have children
or not. Right of privacy
about matters as fundamental as the right
to decide whether
to bear or beget a child was already announced and now, abortion is about
the decision whether or not to
bear or beget a child.
The arguments in favour
of Roe v. Wadev, which
finally persuaded the justices, were that abortion is a purely
private matter. And when matters
are purely private,
general constitutional principles forbid the government
from intruding into them.
There are two main issues, one is women being
able to make decisions about when and if they become pregnant and carry a pregnancy to
term. On the other side, the state having interest in potential life, and then how we balance
those things. And the way they figures
to balance those
things is through this idea of the trimester framework. There is not a
recognition of foetal personhood.
Although the state does have an interest in unborn life, that interest doesn't sufficiently come into play to outweigh
the woman's choice until the foetus would be viable outside the womb.
I think the Roe decision
has proven to be a deep wound in the body politic. The Court took upon itself an issue that was being
addressed throughout the country, with vigorous advocacy on both sides, and finding some success, for good or for ill,
by the changing laws throughout the country
with no textual basis. It overturned the laws of all 50 states, so it was pretty radical.
There was not even real build-up, but I think people who are
philosophically opposed to abortion
feel the Supreme Court decided that they have nowhere to go in the democratic process, that their views are just not
valuable. And that really angered people and galvanized the movement. The Court anchored
Roe in precedents of the time, particularly in the precedent from 1965 that had established a right to use contraception. All of those cases come out of an
understanding of the
Fourteenth Amendment protection for due process. And that's something that's been with us for quite a long
time. The Court doesn't go around finding fundamental, or even strong, constitutional rights every
day, or every year, even. If we, in fact, believe, and I do believe, that the right to terminate a pregnancy is one that
should exist in constitutional order,
then I think it should be federally protected. The fact that the Supreme Court
decision created this basic right was
really important. It ensured that this debate would continue for 40 plus, now getting
on for 50, years. Whatever
the policy should be, the Constitution didn't
settle it. And the Court was wrong
to impose a particular policy.
When people think back on it, they'll
think back to that phrase
from Justice White's
dissent: Roe was an
act "of raw judicial power."
Reference
Roe v. Wade, 410 U.S. 113 (1973).
Griswold v. Connecticut, 381 U.S. 479 (1965).
Eisenstadt v. Baird, 405 U.S. 438 (1972).
Article Information
ROE V. WADE INVENTION OF RIGHT TO PRIVACY AND RIGHT TO ABORTION IN USA (By- Harris M Fazal)
Authors: Harris M Fazal
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/26
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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