Roe v. Wade: constitutional controversy and the right to privacy

¶ … Roe v. Wade: An Enduring Constitutional Controversy

Socio-political Background of Case

In the years preceding the landmark case of Roe v. Wade in 1973, the United States underwent a great deal of social upheaval (Cohen, 2005). Much of this upheaval pertained to fighting for attainment of civil rights: African-Americans fought to be treated equally and even subsections of the poor mobilized to stand up against unfair treatment under the law (Quadagno, 1994). As individuals mobilized to obtain equal rights, there was also another kind of revolution taking place: a revolution wherein previously constricted norms regarding sex were being eroded by the sexual revolution (Legacy). For example, some women in the United States finally had access to birth control pills as of 1960, and some states allowed for abortions to take place during the first trimester (Cohen, 2005). Despite the revolutionary activity that was taking place in the area of civil rights and the gradually increase in sexual freedom, women in many states still faced great difficulty in procuring safe abortions. Consequently, many women had illegal as well as unsafe abortions which were performed in unsanitary conditions at best (Legacy). The law at this time had a disproportionate impact upon poor women whom could not afford to travel to another state to receive medical treatment. Furthermore, the laws outlawing abortion in certain states were vague thereby leaving many doctors unclear as to whether or not they were breaking the law when providing patients with an abortion. As a result, a movement began wherein people questioned whether the government had a right to interfere with their own reproductive concerns. These individuals asserted that the laws banning abortion and birth control constituted an invasion of privacy (Legacy).

Appellants' Arguments at the Supreme Court Level in Roe v. Wade

At the Supreme Court level, the appellant argued that a woman's constitutional right to privacy is absolute and based thereon she should be therefore be entitled to abort her pregnancy at whatever time and in whatever way and for whatever reason she so chooses. Specifically, appellant contended that the Texas laws improperly invade a right of pregnant women to choose to keep or to terminate her pregnancy. Appellant also argued that the state does not have a valid interest in regulating a woman's abortion decision (Legacy).

Appellant's Arguments at the Supreme Court Level

Appellant Ward argued that there was no right to an abortion in the Constitution; and, there is nothing in the record that reveals that the framers of the Constitution ever intended for the Fourteenth Amendment to be used for such a purpose. Additionally, Appellant asserted that the case utilized to support the right of privacy protected marital privacy, not the right to have sex. Appellants also argued in the alternative by contending that even if the right to privacy is applied to this case, Texas has a compelling state interest to regulate abortion procedures. This is especially true according to the appellants because a fetus is a "person" within the meaning of the Fourteenth Amendment; thus, there argument follows that a statute permitting abortions would "deprive" a person of "life" (Exploring).

Opinion of the Court Recognizing a Woman's Right to Privacy

The Supreme Court held in favor of appellants and Justice Blackmun wrote the majority opinion for which Chief Justice Burger and Justices Douglas, Brennan, Stewart, Marshall and Powell joined (Roe v. Wade). The Court noted that the Constitution does not explicitly mention a right to privacy, but the Court has recognized the right of personal privacy based upon the Fourteenth Amendment's concept of personal liberty and restrictions of state action as well as upon the Ninth Amendment's reservation of rights to the people as the lower court held. Furthermore, Justice Blackmun noted that this right is broad enough to include a woman's decision whether or not to terminate her pregnancy. In examining the detriment imposed by the state should the Court deny plaintiff's alleged right, the Court noted that the harm imposed upon a woman by forcing her to have a child is apparent and ranges from the additional psychological strain of having a child as well as the economic burden and the possible stigma of becoming an unwedded mother. In fact, these considerations would be discussed by a woman and her physician and they should be protected under the right of privacy. While the Court found in favor of the appellee, the Court specifically noted that this is not an absolute right and that there may be times, such as later in pregnancy, when the state may assert an interest in the future upon the interest of safeguarding health, maintaining medical standards, and protecting potential life (Legacy; Roe v. Wade).

Dissenting Opinion of the Court

Justice Rehnquist dissented with the majority based upon several constitutional arguments. First, the Court's ruling pertained to a woman's right to terminate her pregnancy during the first trimester; however, none of the parties were currently in their first trimester. Secondly, assuming that there was a plaintiff with standing or that was qualified to sue, Justice Rehnquist would rule against the majority since in his opinion, the "right" to privacy is not implicated in this case. Additionally, the type of situation in which the Court has granted a privacy right (i.e., Fourth Amendment freedom from unreasonable search and seizure) are not remotely similar to the facts in the present case. Moreover, Justice Rehnquist does not believe that the majority acted within its purview or its right since they had to carve a right out of the Fourteenth Amendment that even the founders did not intend to create (Roe v. Wade).

Reaction to Roe v. Wade

Instead of ending the debate over the legality of abortion in the United States, the holding of the Supreme Court in Roe v. Wade has actually intensified the debate and has made it a national issue as opposed to a state issue (Legacy). In fact, it is not uncommon for protestors of the decision in Roe v. Wade to organize protests against the right to choose and, moreover, to stage these protests within steps of the hospital's or doctor's or clinic's door (Raymond, 1990). Finally, there are many people whom feel morally obligated to challenge this ruling. Some of these individuals even advocate killing doctors whom perform abortions. As such, it is clear that as a society we have not come to an agreement on the issues, constitutional or otherwise, that have been raised by the holding in Roe v. Wade.

If I Were a Justice on the Supreme Court

Prior to reading the actual case of Roe v. Wade, I believed that I would not hesitate during this portion of the paper: "Of course I agree with Roe v. Wade because a woman has a right to choose." This preliminary response of mine is based upon my emotions and my personal outlook that a woman should have the right to make decisions about her body without the influence of the state. Furthermore, as a citizen of a nation that defends democracy and freedom worldwide, I believe that based upon principal alone our highest court should not restrict what a woman can or cannot do. Indeed, I do not want our country to go back to the days where some women not only went to other states to have abortions, but they went to non-licensed practitioners in Mexico and, in real times of desperation, conducted their own abortions.

While I do believe a woman should have the right to choose, I am not necessarily convinced of that the Ninth and the Fourteenth Amendment allow for a so-called right to privacy to support the creation of a right in this instance. Admittedly, I am not a legal scholar, so to disagree with Justice Blackmun seems a bit of a stretch; however, what he did in Roe v. Wade was likewise a "step" or, I should say, one giant leap. I simply do not see how the Fourteenth Amendment which is a procedural safeguard to protect against state intrusion upon its citizens' life, liberty, and property. The Fourteenth Amendment pertains to the state's notice requirement to give citizens notice upon the possibility of taking away of his/her life, liberty, or property. Additionally, I am concerned that we conferred a right to women based upon a privacy right that we may not grant to men or to potential fathers. Does that mean that women have fundamental rights that men, even the fathers of unborn children, cannot claim? Moreover, my final concern is that this sets a dangerous precedence wherein a skillful justice can create an "implied" right when there simply isn't a legal right delineated within the text itself. Thus, I would be more comfortable with the holding if it were based upon something more than a tenuous connection to a debatable and previously non-existent right to privacy.