American History - Roe V essay

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Furthermore, the Supreme Court (and the Texas district court also) relied on a judicial invention introduced in the earlier Griswold and Eisenstadt decisions: namely, the penumbra of privacy that was said to "emanate" from the Fourteenth Amendment to give rise in a fundamental right of privacy despite the fact that the notion of personal privacy is not mentioned at all in the Constitution. Certainly, the Roe decision was justified on general principles of justice, equality, fairness, and ordinary definitions of private affairs; but from a technical legal argument perspective, many commentators have suggested that it was a case of the Court fitting the Constitution to the law rather than conforming the latter to the former.

Conclusion:

Regardless of the any technical criticism in the legal analysis of the basis for the Supreme Court's decision in Roe, it remains the right and moral decision on the issue.

Certainly, room exists for improved reasoning, such as in connection with concept of fetal viability. As is the case in every other field of medicine, neonatal science has progressed dramatically in the three and a half decades since abortion was legalized in the U.S. In that regard, it is perfectly conceivable that medical science will eventually possess the technical capacity to sustain premature infants almost to the point of conception. Just as evolution in end-of-life care has substantially changed aspects of medical law with respect to withdrawing care from terminal patients, continued medical progress in the neonatal field could, at least logically, justify a reexamination of the criteria outlined in Roe as pertains to fetal viability as the basis of distinguishing the third trimester from the first and second.

Similarly, whether or not the penumbra of privacy is a concept inherent in the intent rather than the literal text of the Constitution, it is a worthwhile principle that, in all likelihood, should have been included in its text, because failure to respect personal privacy in the most intimate matters and decisions contradicts the spirit (if not the letter) of the U.S. Constitution and its emphasis on civil liberties and restrictions on governmental intrusions without sufficient and justifiable cause. Likewise, the perpetuation of the unequal opportunity to exercise autonomous control over one of the most essential decisions and biological functions in human life would have contradicted the fundamental constitutional principle of equal protection under the law, in effect, further widening the gap of social opportunity between rich and poor.

Nevertheless, even those bases for supporting the decision may pale in their importance in comparison to the religious freedom issue. Separation of church and state was perhaps the most essential of all the precipitating factors in the colonization of the New World first, and the eventual struggle for independence from Britain, second.

Throughout much of Europe prior to the middle of the 18th century, deviation from the state-mandated religious teachings could result in severe punishment, including torture and death imposed by the state. Religious freedom absolutely includes the right to express and one's religious beliefs and to worship freely; but it also includes the corresponding right not to worship or maintain any religious belief, as well as the right not to have the religious beliefs, standards, and definitions of some imposed on the secular rights of others who do not necessarily share those particular beliefs. The quasi- religious basis for the objection to abortion, in and of itself, is sufficient reason to have justified a reversal of state laws banning abortion.

On the other hand, advances in medical science that enable contemporary physicians to determine when during gestation the fetus first becomes capable of perceiving physical discomfort and pain may provide a more objectively valid basis for reconsidering the specific stages of pregnancy (especially the procedures that can be used to terminate pregnancy) absent medical necessity. In that case, readjustment of the decision would not have the egregious effect of violating rights but of protecting the moral right of sentient fetuses from unnecessary pain and discomfort.

Bibliography

Abrams, Natalie, Buckner, Michael, D. A Clinical Textbook and Reference for the Health Care Professions. (Cambridge: MIT Press, 1999).

Dershowitz, Alan, M. Shouting Fire: Civil Liberties in a Turbulent Age. (New York: Little Brown & Co, 2002).

Friedman, Laurence, M. A History of American Law. (New York: Simon & Schuster, 2005).

Hall, Kermit, L. The Oxford Companion to the Supreme Court of the United States. (New York: Oxford University Press, 1992).

Hartman, Gary, Mersky, Roy, M., and Cindy L. Tate. Landmark Supreme Court Decisions, (New York: Checkmark Books, 2007).

Nowak, John, E., Rotunda, Ronald, D. Nowak and Rotunda Hornbook on Constitutional Law, 7th Edition. (St. Paul, MN: West, 2004).

Gary Hartman, Roy M. Mersky, Cindy L. Tate, Landmark Supreme Court Decisions, (New York: Checkmark Books, 2007), 10.

Dershowitz, Alan, M. Shouting Fire: Civil Liberties in a Turbulent Age. (New York: (Little Brown & Co, 2002), 127.

Friedman, Laurence, M. A History of American Law. (New York: Simon & Schuster, 2005), 244-5.

Hall, Kermit, L. The Oxford Companion to the Supreme Court of the United States. (New York: Oxford University Press, 1992), 403-4.

Nowak, John, E., Rotunda, Ronald, D. Nowak and Rotunda Hornbook on Constitutional Law, 7th Edition. (St. Paul, MN: West, 2004), 199-200.

Hall, Kermit, L. The Oxford Companion to the Supreme Court of the United States. (New York: Oxford University Press, 1992), 403-4.

Gary Hartman, Roy M. Mersky, Cindy L. Tate, Landmark Supreme Court Decisions, (New York: Checkmark Books, 2007), 10.

Dershowitz, Alan, M. Shouting Fire: Civil Liberties in a Turbulent Age. (New York: (Little Brown & Co, 2002), 128.

Abrams, Natalie, Buckner,…[continue]

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