Abstract:
Abortion, both legal and illegal has been in existence since the beginning of time; with evidence showing prohibition of abortion in the Code of Assura as early as 1075 BCE.1 Considering of the legality of abortion within American history, this has moved through several prominent phases. Nevertheless, the universal cause of abortion – unintentional pregnancy is a continuous truth for women throughout America.
From 1776 until the mid-1800s abortion was viewed as socially unacceptable; however, abortions were not illegal in most states.2 During the 1860s, a number of states passed anti-abortion laws; these being cryptic in nature. After 1860, further anti-abortion laws passed that were strongly enforced from this point. As a result, many women began to utilise illegal underground abortion services.
This altered with the landmark case of Roe v Wade which brought huge developments to views regarding abortion and the U.S Constitution. Throughout my dissertation focus will be drawn on this, alongside monumental decisions brought forth in Casey v Planned Parenthood and more recently Whole Woman’s Health v. Hellerstedt.
The question that this dissertation will emphasise on is “not the right to abortion but on the right to privacy and reproductive control”3 under the Free World.
Introduction
The right to privacy is one that is not explicitly stated within the U.S Constitution but is heavily implied throughout several amendments. The term privacy is vastly complex and must be explored beyond its basic definition. In some publications, the term is divided into further subcategories; these being decisional privacy, spacial privacy and informational privacy.4
The right to privacy in a decisional capacity refers to the right of an individual to make their own decisions regarding their personal life whereas spacial privacy was described as the territorial right to an individual’s own body. When uniting these two privacies together, it forms a foundation image of the right to privacy within the U.S.
Drawing on this, the right of an individual to engage in certain activities focuses predominantly on family life and issues surrounding sexuality, marriage and pregnancy. This was displayed within the landmark case of Griswold v. Connecticut [1965] which brought into question concerns around a Connecticut law that criminalised the encouragement or use of birth control. In a 7-2 decision authored by Justice Douglas, the Court ruled that the Constitution did in fact protect the right of marital privacy against state restrictions on contraception. Justice Harlan also delivered a concurring opinion stating that the law “deprives them of “liberty” without due process of law, as that concept is used in the Fourteenth Amendment.”5
Lawrence v Texas [2003] is another ground-breaking case within American history centralised around a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In a 6-3 opinion delivered by Justice Kennedy, it was held that a Texas law forbidding sodomy in their own home violates the Due Process clause of the Fourteenth Amendment. “Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government…”6 The concept of liberty is this situation is pertaining to privacy concerns and the interference of government in their personal homes.
Drawing focus to the Fourteenth Amendment this provides that:
“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; nor deny to any person within its jurisdiction the equal protection of the laws.”7
The use of the word ‘liberty’ is a clear focal point when considering the privacy and freedoms of citizens in the United States.
Coupled alongside other Amendments found within the Bill of Rights, a clearer idea is formed of the protections provided to individuals. An unambiguous instance of the right to privacy is within the Fifth Amendment which provides privacy of persons and possessions against unreasonable searches and seizures. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…” This stipulates protection against “invasions of the sanctities of a man’s home and privacies of life.”8
Additionally, the Ninth Amendment presents “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Highlighting that the rights granted to citizens shall not be limited to those specifically mentioned within the Bill of Rights. Drawing back to the original statement that despite the right to privacy not being expressly stated, it is still one that is fundamental to the lifestyle of the American people.
Literature Review 1:1: Roe v Wade [1973]
Roe v Wade is the infamous decision made in the Supreme Court; ruling that the U.S Constitution does in fact provide protection to a woman’s right to choose to have an abortion without excessive interference from the government. This ruling has since proven extremely controversial amongst the American public, with a range of states imposing limitations on a woman’s right to an abortion. This case brought forward Jane Roe (pseudonym), a Texas woman who had grown up in poverty and had given birth to two children who had been placed for adoption. During this time, abortion was legal in Texas but only for fatality purposes.
A lawsuit was filed against Henry Wade, the district attorney of Dallas County on behalf of Roe and all other women “who were or might become pregnant and want to consider all options.” The District Court held that the “fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment,”; however, Wade continued to prosecute doctors who performed abortions for reasons outside the scope provided.
In the Supreme Court, a majority 7-2 decision declared the ban was unconstitutional, an opinion delivered by Justice Blackmun and “that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.” Drawing focus to the First Amendment, we will begin with the Establishment Clause which prohibits the government from making any law “respecting an establishment of religion.” The Establishment Clause was not discussed within this case and is frequently overlooked in cases surrounding abortion rights. A prohibition to abortion can be viewed as “an unequivocal endorsement of a religious tenet of some but by no means all Christian faiths.”9 A further evaluation of the role religion plays in abortion rights would have been beneficial to this case; providing further clarification to the contradiction of religious implementation in American state law.
A statute placing severe restrictions on abortion “serves no identifiable secular purpose,” thereby potentially violating the Establishment Clause proving unconstitutional. Consideration of this within Roe may have potentially strengthened the judgement held.
The holding of Roe was very specific in its delivery; providing an almost legislative resolution; this can be split into three objectives. First, being a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without governmental interference. “The period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State…”
The second analysis surrounded the State’s power to restrict abortion rights granted to women after the point of ‘viability’ provided that there are exceptions concerning danger to the woman’s health. The final objective is that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the foetus that may become a child. “State regulation protective of fetal life after viability thus has both logical and biological justifications.” The case made several mentions to the term ‘viability’ which was defined as ‘the ability to live outside the womb’ and was benchmarked as between 24-28 weeks. This portion of the decision is heavily criticized as being ”inherently flawed because the point of viability is arbitrary and the state has a compelling interest in protecting life through all stages of pregnancy.”10 Be that as it may, the case did mention a consultation with a physician which should be the underlying process used over the trimester guidelines; this is the more appropriate response to viability.
Focusing on less controversial aspects of the case; the concept of forced pregnancy is one that is unconstitutional and the “state interference with abortion violates the principle of bodily integrity that underlies much of the 14th Amendment’s promise of liberty.”11 The physical intrusion of pregnancy and forcing a woman to endure this is a denial of their ability to control their life and enjoy the liberty that is promised to them within the Constitution. This right was identified as “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”12
The Supreme Court also singularly rejected the argument that the state had an interest in protecting the foetus as a ‘person’ under the Constitution. This was based on “historical understanding and practice, the structure of the Constitution, and the jurisprudence of [the Supreme] Court.”13 The 9 Justices present agreed that the use of the word “person” within the Constitution has always presumed that of a born person with no mention of constitutional rights until this birth. Since 1975, no Justice has argued otherwise, including those who dissented the opinion within Roe.
Justice White and Rehnquist both wrote separate dissenting opinions. In Rehnquist’s dissent he argued in terms of the three-part resolution being “judicial legislation” which is not the power presented to the Supreme Court. Moreover, the ‘strict scrutiny’ application, in his view should have been replaced with the ‘mere-rationality’ test as this would thereby allow for some ‘reasonable’ prohibitions and legislation to be passed under this standard. White’s dissent focused on an alternative aspect of the conclusion; contending that prior to viability the value of each “convenience, whim or caprice” of the mother is acknowledged over that of the foetus. Such interests should remain in the hands of “the people and to the political processes” showing a clear disdain for the intrusive decision upheld by the Supreme Court.
Predominantly, the ruling in this case is described as heavily flawed; relying primarily on the ‘trimester framework.’ As presented by Justice O’Connor in the overturning case of Casey v Planned Parenthood that “advances in neonatal care have advanced viability to a point somewhat earlier.” The developments in technology meant that ‘viability’ will consistently be changing and cannot remain at one solid benchmark as the guidelines were set within Roe.
2020-5-9-1589028102