So, I have to hurriedly finish a paper today in order to be able to go camping. And never doubt that I am going camping! Therefore, I have to finish my paper right now and you guys will be deprived of my literary genius. I am sorry for you. Very sorry. But if you would like to see the muck that is keeping you from enjoyment, here you go. This is the paper. Keep in mind that I did not pick the assignment, that it was forced on me, and whether or not I agree with the assignment's agenda, I think it was lousy. And, yeah, that unfinished part at the end is what I'm trying to finish.
Third Quarter
Roe V. Wade Thesis Essay
In 2003, the United States celebrated the thirtieth anniversary of one of the most hotly contested and debated Supreme Court decisions of the century: Roe versus Wade. This milestone decision gave women the right to abort an unborn fetus applicable under the right to privacy found in the Constitution, a decision given this enumeration in the case document: “State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against a state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.”# This Supreme Court decision in Roe v. Wade was incorrect legally and constitutionally.
The criminal abortion laws referred to in the judgment were Texas statutes making it a crime to “procure an abortion” or “to attempt one, except with respect to ‘an abortion procured or attempted by medical advice for the purpose of saving the life of the mother’” (2). The first thing the Supreme Court decided was that these statutes “violate the Due Process Clause of the Fourteenth Amendment, which protects against a state action the right to privacy” (77). In the majority opinion, delivered by Justice Blackmun, it is stated that “the principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right [to privacy] in the concept of personal ‘liberty’ embodied in the Fourteenth Amendment’s Due Process Clause” (83).
On examining the actual amendment, however, there is no mention made of a “right to privacy.” The Fourteenth Amendment states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”# It is asserted by the court that the “right to privacy” is found in this amendment’s “concept of personal liberty and restrictions upon state action” (92). Nowhere is the word privacy used and neither is that “concept” of liberty enumerated to include it. Even Justice Blackmun in his majority opinion cannot give constitutional evidence for a “right to privacy,” stating that “the Constitution does not explicitly mention any right of privacy” (92). Instead, Justice Blackmun goes on to give a list of court decisions in which a “right of privacy” has been recognized. This list, however, is not constitutional evidence.
In fact, none of the evidence given by Justice Blackmun is based on the Constitution. This insufficiency is further highlighted by the Justice’s use of the phrase “as we feel it is” (92) later on when he asserts that a woman’s right to abortion is contained in the Fourteenth Amendment. “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (92-93, emphasis added). Even the Ninth Amendment, also appealed to here by Justice Blackmun, does not contain any reference, explicit or otherwise, to a “right to privacy.” It says that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”# It would seem, therefore, that the right of privacy is based on the opinion of judges and not any evidence stemming from the Constitution where that right is said to be enumerated. Clearly, this is not a good defense for there being a “right to privacy” in the Constitution.
The conclusion, then, is that there is no constitutional evidence for a “right to privacy.” The Court does not attempt to give any, but clearly states that there is none. Furthermore all investigations made of the Constitution itself confirm this fact. For this reason, the Supreme Court’s decision is unconstitutional.
After asserting a false right of privacy and putting under that heading an equally false right to an abortion, the Court goes on to deny that a fetus is a person. This denial, by the Court’s admission, is necessary for their ruling to be considered correct. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment [14] (94). Thus, it is on the decision for this issue that the entire ruling of the court rests. If the fetus can be proven to be a person, then his or her right to life, which is guaranteed protection by the Due Process Clause in the Constitution, would have to be protected and a woman’s supposed right to an abortion would be null.
First, the Court looked for a legal precedent in which a fetus was held to be a person. “The appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment” (94). Actually, there was such a case which the Court apparently ignored. “It holds as follows: Rights [referring to the right of privacy], the provision of which is only implied or deduced , must inevitably fall [when] in conflict with the express provisions of the Fifth and Fourteenth Amendments that no person shall be deprived of life without due process of law. Here [the case] there is an embryo or fetus incapable of protecting itself.”# This case definitely gave personhood and its subsequent right to life to an unborn fetus. Thus, the Court ignored a legal precedent which would have changed their judgment.
The Court goes on with its reasons for not judging a fetus as a person. “The Constitution does not define “person” in so many words” (94). Since it is not strictly defined, they feel comfortable in not including a fetus under that heading. Looking back at the Court’s defense for their being a right to privacy, however, this reason seems to intimate a double standard on the part of the Court. A right to privacy was not explicitly defined in the Constitution, yet because the Court “felt” it was there, it was judged to be there. Here, on the overarching issue of personhood, because personhood is not defined within the Constitution it is held not to encompass the unborn. This fact only adds to the impression that the Court is acting arbitrarily.
Finally, the Court states that “all this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn” (95). Stephen M. Krason and William B. Hollberg in their exploration of abortion’s history, came to the opposite conclusion. They cite federal legislation from 1873 which enacted “An Act for the Suppression of trade in, and Circulation of …Articles of Immoral Use. The 1873 statute was an expression of a direct Congressional condemnation of abortion.”# With evidence like this, it is impossible to understand how the Court came to their persuasion afore mentioned.
The state criminal abortion law in question, that of Texas, did not violate the Due Process Clause or the historical use of due process since its inception. The right to privacy, cited in the judgment of the court and in the majority opinion given by Justice Blackmun, is not a constitutional right and it is found nowhere in the Constitution. Furthermore, the decision violates the fetus’ Constitutional right to life protected by the same Due Process Clause found in the Fourteenth Amendment. For these reasons, the Court’s decision on Roe v. Wade was incorrect.
On the other hand, the dissenting opinion in the case, delivered by Justice Rehnquist, was the correct decision. The dissenting opinion upheld the Constitution by denying that abortion falls under the heading of a “right to privacy” and that the “right to privacy” is even Constitutional as used in the Court’s decision. “A transaction resulting in an operation such as this is not ‘private’ in the ordinary usage of that word. Nor is the ‘privacy’ that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy” (100). Furthermore, the dissenting opinion came to the opposite conclusion
