The U. S. Constitution: Roe v Wade

Roe v Wade is one of the most significant and controversial U. S. Supreme Court cases of all time ("Abortion Controversy Remains”). The landmark 1973 decision held that a woman has the right to have an abortion based on the right to privacy under the 14th Amendment Due Process Clause. Those who support the decision believe that abortions are a right that all women have that should not be impaired by religious beliefs or governmental authority. Those who oppose the decision believe that abortion is a shameful and sinful killing of an innocent life which begins at conception. In a 7 to 2 decision, the Justices acknowledged that in addition to this right of abortion, there are two concomitant interests in the state, to protect the health of women and to protect the human life that could ultimately take place ("Abortion Controversy Remains”). As the woman’s pregnancy progresses in time, the state’s interests increase simultaneously. Thus, the state could regulate abortions during the third trimester of a woman’s pregnancy. Justice Harry Blackmun, who wrote the opinion, found support in Justices Burger, Stewart, Brennan, Marshall, Powell and Douglas, while Justice White and Justice Rehnquist dissented ("Roe v Wade"). 

The Constitutional Right to Privacy

The right to privacy, upon which Roe v Wade is based, is not explicitly stated in the U. S. Constitution, though the Bill of Rights and the 14th Amendment, have been defined by Justices over time as establishing the right to privacy ("The Right of Privacy"). The framers of the Constitution, like James Madison, though have made it clear that a person’s privacy is an important concept that needed constitutional protection. For example, the 1st Amendment protects a person’s “privacy of beliefs” ("The Right of Privacy"), the 3rd Amendment protects “privacy of the home” ("The Right of Privacy"), the 4th Amendment protects the “privacy of the person and possessions as against unreasonable searches” ("The Right of Privacy"), the 5th Amendment provides the “privilege against self-incrimination, which provides protection for the privacy of personal information” ("The Right of Privacy"), and the 9th Amendment, which “states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people" ("The Right of Privacy"). In effect, the 9th Amendment has served as justification for a broad interpretation of the Bill of Rights to safeguard privacy in ways unspecified in the initial eight provisions ("The Right of Privacy"). The right to privacy was most precisely addressed by Justice Brandeis in Olmstead v U. S. (1928):    

The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality -- the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his feelings, and his intellect ("The Right of Privacy").    

Roe v Wade Scuffed but not Bruised

In a subsequent Supreme Court case Planned Parenthood v Casey in 1992, the Justices rebuffed the trimester argument, but confirmed Roe’s core decision that a woman has the right to abort a fetus until the point of viability ("Planned Parenthood v Casey"). Viability was defined as the ability of the fetus to live with artificial assistance, outside the mother’s womb. In view of rapid and evolving medical advances, viability could be as early as twenty three weeks, and in some cases earlier. The Supreme Court decision has sparked an intense national debate for over forty years which has divided the nation into two political camps, pro-choice and pro-life which can end a political campaign and which has incited riots, bombings and murders ("Abortion Controversy Remains”). 

The Issues: Pro-Choice and Pro-Life

Pro-Choice. The pro-choice camp and the pro-life camp each have their positions and have dug in deep over the years ("Should Abortion Be Legal?"). Through their decision, the Justices declared that abortion is a guaranteed fundamental right as found in the United States Constitution. They argued that there are zones of privacy created by the Constitution which are extensive enough to include a woman’s decision whether to end her pregnancy or not. The pro-choice faction believe, similar to the Supreme Court’s decision, that abortion is a woman’s choice. Further, pro-choice groups posit that having reproductive choice is a form of empowerment that ensures that a woman has full control of her own body. The decision to have a child or not has a substantial impact on a woman’s ability to be independent, and to be the steward of her own future. In 1992, Justice Sandra Day O’Connor opined in Planned Parenthood v. Casey that in order for a woman to fully participate in society and in the American economy in an equal manner, she must be able to control her reproductive life. In 2007, Ruth Bader Ginsburg concluded as well in Gonzales v. Carhart, that unnecessary constraints on a woman’s ability to obtain an abortion, impinges on her autonomy to direct the trajectory of her life, and to enjoy equality. Noted attorney Jeffrey Toobin declared “that Roe v. Wade was ‘a landmark of what is, in the truest sense, women’s liberation” ("Should Abortion Be Legal?").

Part of the pro-choice perspective is the concept and timing of viability, the point at which a fetus can live outside the womb, or after birth (Foer). This is the time at which pro-choicers believe a fetus becomes a person. Unlike pro-lifers, pro-choicers do not believe that personhood starts at conception. Pro-choice supporters believe that an embryo is not a person. The embryo cannot sustain itself outside the womb, thus abortions terminate pregnancies, not babies. Pro-choice advocates postulate that age is determined from the date of birth, not from the date of conception. They also point to the fact that fetuses are not included in the U. S. Census count. In Roe v Wade, the Justices stated that the concept of person as implied in the 14th Amendment does not refer to the unborn (Foer).

Pro-choice proponents indicate that a fetus does not feel pain at the point at which an abortion occurs (Levy). The American College of Obstetricians and Gynecologists, agrees with the British Royal College of Obstetricians and Gynaecologists finding that the cortex is required for pain to register (Ertelt; The Times Editorial Board). The cortex does not become viable until the twenty sixth week of fetal development (Levy). Other studies indicate that fetuses cannot feel pain until the twenty ninth week of development. Pro-life advocates point to the flinching reactions that fetuses have in response to pain stimulus. But researchers say that the reaction is a reflex rather than pain perception (Levy). 

Prior to the legalization of abortion, women would often try to coax an abortion through the use of back alley abortionist, hangers, radiator flush, or needles (Grimes).

Treatments women took by mouth included turpentine, bleach, detergents and a range of herbal and vegetable teas. Quinine and chloroquine (malaria medicines) were ingested, and potassium permanganate was placed in the vagina, often causing chemical burns. Toxic solutions were squirted into the uterus, such as soap and turpentine, often causing kidney failure and death (Grimes). 

Prior to Roe v Wade there had been thirty nine deaths from illegal abortions ("Should Abortion Be Legal?"). After Roe, there were only two. Pro-choice defenders cite the reduction of maternal deaths and injury as an important benefit of the right to have an abortion.

Pro-choice proponents also point to the fact that current abortion methods are safe and do not cause any subsequent health issues ("The Safety of Legal Abortion"). A 2015 research study conducted by Obstetrics & Gynecology determined that under .04 percent of abortions contribute to significant health issues. Further, another study determined that the risk of death was less in the case of an abortion than the risk of death in the case of child birth. In addition, that complications associated with childbirth were greater than that with abortion. The American College of Obstetricians and Gynecologists and the American Medical Association both confirmed that in the United States, an abortion is one of the most safe procedures conducted ("The Safety of Legal Abortion").

Another recent study indicates that women who receive abortions do not suffer from the mental health problems of women who are denied abortions (Joffe). When a woman that wants an abortion is denied the procedure, she usually experienced anger, regret, disappointment and unhappiness. On the other hand, most women who were able to obtain an abortion felt that they had made the correct decision for their life. Three notable medical authorities, Johns Hopkins Bloomberg School of Public Health, the American Psychological Association, and the Academy of Medical Royal Colleges determined that there was no association between mental health issues and abortions (Joffe). 

Another point made by pro-choice supporters is that when a fetus is found to have extreme abnormalities, like anencephaly, a formation defect in which the brain is underdeveloped or missing and the skull is incomplete; or limb-body wall complex, where there is a fetal malformation such that the organs develop outside of the body; or disorders where death is assured, a decision can be made to not bring the fetus to full term (Levy). Experts also state that in the less severe cases, like Down syndrome, not all parents are able to care for a child with such severe disabilities. Some parents do not have the financial resources, the emotional stamina or the support to give the child a good life. 

Preventing women from having an abortion if they choose can cause the need to enter the welfare rolls; unemployment; an increase in the chance of domestic violence; and the potential for experiencing a standard of living that runs beneath the poverty line (Williamson). A study determined that women able to receive an abortion were likely to be less likely to live below the poverty line after two years than those who were denied an abortion. Those turned away wound up receiving unemployment at a rate of 76% compared to a 44% rate for those able to obtain abortions. The study also found that women who were unable to secure abortions were more likely to remain in abusive relationships than those who obtained abortions. In addition, the same women were most likely to become victimized by domestic violence.

The ability to choose to have an abortion also protects a woman from economic deprivation (Finer, Frohwirth, Dauphinee, Singh, and Moore). Often woman who decide to have an abortion do not have the resources to provide support for an unplanned child. Almost half of the women who receive abortions are living under the federal poverty guideline levels. Research indicates that 73% of women who responded could not afford to have a baby and 38% indicate that having a baby would interfere with their educational, employment and career objectives. A 2010 study indicated that all women with children, impoverished or not, earned less than their counterparts without children.

Works Cited

"Abortion Controversy Remains 40 Years After Roe v. Wade." Pro Con. ProCon.org. 16 January 2016. Web. 6 September 2016. <http://www.procon.org/headline.php?headlineID=005139>.

Ertelt, Steven. "American College of Obstetricians and Gynecologists Has Become a De Facto Pro-Abortion Group." Life News. 11 June 2015. Web. 6 September 2016. <http://www.lifenews.com/2015/06/11/american-college-of-obstetricians-and-gynecologists-has-become-a-de-facto-pro-abortion-group/>.

Finer, Lawrence B., Frohwirth, Lori F., Dauphinee, Lindsay A., Singh, Susheela and Moore, Ann M. "Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives." Guttmacher Institute. September 2005. <https://www.guttmacher.org/about/journals/psrh/2005/reasons-us-women-have-abortions-quantitative-and-qualitative-perspectives>.

Foer, Franklin. "Fetal Viability." Slate. The Slate Group a Graham Holdings company. 25 May 1997. Web. 6 September 2016. <http://www.slate.com/articles/news_and_politics/the_gist/1997/05/fetal_viability.html>.

Grimes, David, A. "The Bad Old Days: Abortion in America Before Roe v. Wade." Huffington Post. TheHuffintonPost.com Inc. 15 January 2015. Web. 6 September 2016. <http://www.huffingtonpost.com/david-a-grimes/the-bad-old-days-abortion_b_6324610.html>.

Joffe, Carole. "Roe v. Wade and Beyond: Forty Years of Legal Abortion in the United States." Dissent Magazine. Winter 2013. Web. 6 September 2016. <https://www.dissentmagazine.org/article/roe-v-wade-and-beyond-forty-years-of-legal-abortion-in-the-united-states>.

Levy, Pema. "Can the Myth of Fetal Pain Topple Roe v. Wade?" Newsweek. Newsweek, LLC.  11 November 2013. Web. 6 September 2016. <http://www.newsweek.com/can-myth-fetal-pain-topple-roe-v-wade-3077>.

"Planned Parenthood v Casey." FindLaw. Thomson Reuters. n. d. Web. 6 September 2016. <http://caselaw.findlaw.com/us-supreme-court/505/833.html>.

"Roe v Wade." FindLaw. Thomson Reuters. n. d. Web. 6 September 2016. <http://caselaw.findlaw.com/us-supreme-court/410/113.html>.

"Should Abortion Be Legal?" Pro Con. ProCon.org. 16 January 2016. Web. 6 September 2016. <http://abortion.procon.org/>.

"The Right of Privacy." Exploring Constitutional Conflicts. University of Missouri - Kansas City. n. d. Web. 6 September 2016. <http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html>.

"The Safety of Legal Abortion and the Hazards of Illegal Abortion." NARAL Pro Choice America. The NARAL Foundation. 1 January 2016. Web. 6 September 2016. <http://www.prochoiceamerica.org/media/fact-sheets/abortion-distorting-science-safety-legal-abortion.pdf>.

The Times Editorial Board. "On Roe vs. Wade's birthday, an unscientific attempt to limit abortion rights ." Los Angeles Times. Tribune Publishing.  21 January 2015. Web. 6 September 2016. <http://www.latimes.com/opinion/editorials/la-ed-roe-vs-wade-anniversary-20150122-story.html>.

Williamson, Heidi. "The Legacy of Roe v. Wade and the War on Poverty." American Progress. Center for American Progress. 22 January 2014. Web. 6 September 2016. <https://www.americanprogress.org/issues/women/news/2014/01/22/82679/the-legacy-of-roe-v-wade-and-the-war-on-poverty/>.