Roe V. Wade: A Woman's Right to Choose

Perhaps no Supreme Court decision in recent memory has continued to cause as much contentious debate as the 1973 decision, Roe v. Wade, (410 US 113) which in essence permitted women to have abortions legally.

The basic facts of the case, brought on appeal to the Supreme Court were these: "A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life" ("Supreme Court Collectio", 2009, para. 1). What the Court decided was that the state laws- including the laws that resulted in the appeal to the Court from Texas, "... 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 state action the right to privacy, including a woman's qualified right to terminate her pregnancy" ("Supreme Court Collection", 2009, para. 7).

The notion, as so-called "Right to Lifers" now protest, that abortion is equal to murder of a human being (the belief that a fetus is a human being from inception) had no impact or was not taken into consideration. The Court's decision was not based on the morality of abortions, but rather on the right to privacy of a woman seeking to terminate a pregnancy. The decision was 7-2, with Justices Rehnquist and White dissenting.

Probably more than any other decision the storm of controversy has followed this decision for over thirty years now. And, various decisions, even Supreme Court decisions, have somehow reduced the broad expanse that Roe v. Wade seemed to have opened, using the Fourteenth Amendment as its basis.

"In practice, the principle of the 'right to choose' established by Roe has been undermined by a series of political and legal decisions. Among the obstacles thus established are the Hyde Amendment banning federal Medicaid funds from funding abortions for women on low incomes" ("Roe v. Wade". 2008, para. 2). The article states that in 2002, only nineteen states assisted low-income women with the costs for abortions. The overview continues with the statistic that in 1992 the Casey v. Planned Parenthood ruling by the Supreme Court qualified the 'right to choose' by ruling that individual state restrictions on abortion were legal as long as they did not impose an 'undue' burden on women.

From a purely Constitutional aspect, it is clear that the dissenters (Justices Rehnquist and White) believed that this decision contradicted the Constitution's express statement that anything not specifically allocated to the Federal government was the states' responsibility. This, they believed, was the case with abortion. "Justices Byron White and William Rehnquist, in separate dissents, criticized the Court for enforcing a right not specified in the Constitution to overturn statutes that were no more restrictive than those widely in force when the Fourteenth Amendment was adopted" (Tushnet, 2005, para. 9).

From a legal standpoint, the argument concerning Roe v. Wade really had less to do with the woman's right to choose, or even the moral decisions concerning when life begins in a woman's body. Rather the argument at the time was concerned with whether a right to an abortion and the use of the Fourteenth Amendment and its "equal protection" clause. Still, there are Constitutional scholars who weigh Roe v. Wade as coming dangerously close to disregarding states' rights in the belief that the Fourteenth Amendment does not specifically "guarantee" certain rights and that privacy, per se, is only suggested with that "equal protection under the law" clause.

It is also evident to many feminists that it was an all-male court that made the decision and has somehow weakened the appeal's decision over the years. Perhaps, they feel that any future assailing Roe v. Wade might be tempered by two sitting female justices. Still, what both sides of the argument need to realize is that morality is not part of justice, and that the Court can only make decisions based on Constitutional precedent.

References:

"Roe v. Wade" A Dictionary of Contemporary World History.

Jan Palmowski. Oxford University Press, 2008.

Oxford Reference Online. Oxford University Press.

Los Angeles Public Library. 11 October, 2009

Main&entry=t46.e2000

"Supreme Court Collection" accessed Oct. 10, 2009 on

www.law.cornell.edu/supct/cases/historic.htm

Mark V. Tushnet "Roe v. Wade" The Oxford Companion to

the Supreme Court of the United States. Kermit L. Hall.

Oxford University Press. 2005. Oxford Reference Online.

Oxford University Press. Los Angeles Public Library.

11 October 2009

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