Here’s my latest discussion piece as part of my master’s program at Creighton University:
Roe v. Wade, U.S. 113 (1973)
Like Griswold, Roe v. Wade marks a departure from an objective jurisprudence concerning a proper textual interpretation of the U.S. Constitution to a more subjective reading. And, like Griswold, history has revealed that issues regarding the case had more to do with the application of specified social interests through judicial legislation, again by the nation’s highest court, in overturning state law rather than in addressing the actual needs or concerns of the appellant. In Roe’s case, Jane Roe, known in real life as Norma Leah McCorvey, did not abort her child but gave birth and, in later life, has now become a pro-life advocate. (1)
To the case. Appellants Roe, a pregnant woman, and Hallford, a licensed physician, claimed Texas law violated the right of privacy (Griswold v. Connecticut, 1965) afforded by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments for themselves as an individual (Roe) and as a physician (Hallford). Further right of privacy claims were made upon the Fourteenth Amendment’s Due Process Clause and privacy protections provided by the Bill of Rights. In its decision, the majority explicitly rejected the appellee’s claims of the personhood of the fetus and implicitly that life begins at conception (by allowing abortion). The majority found abortion to be included in the category of “fundamental rights” since it was constituted under the right of privacy. (2)
I concur with dissenters White and Rehnquist. In particular, in the companion case Doe v. Bolton (1973), (3) White found “nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers. . . the people and the legislatures of the 50 States are constitutional disentitled to weigh on the relative importance of the continued existence and development of the fetus. . . [it is] an exercise of raw judicial power. . .” (4) In fact, in Doe, the Court further diminished states’ rights concerning the life of the fetus by expanding the definition of women’s health, and in then in Webster v. Reproductive Health Services (1989), the majority said that “the Roe trimester framework should be abandoned.” (5)
As a matter of justice in a democracy, White’s “disentitlement” language in his Doe dissent is weighty. Individual privacy rights first appearing Griswold and appealed to in Roe, et. al., lack a solid constitutional footing. Roe has been heavily criticized by the judicial community, and portions of it have been rescinded by the Supreme Court. That the majority denied several states the right to legislate against abortion, and continues to deny citizens a voice through their legislatures–either way!–is an injustice. In trying to protect individual rights and liberty interests, the Court has actually denied them.
Notes:
1) Wikipedia: Norma McCorvey. http://en.wikipedia.org/wiki/Norma_McCorvey (accessed November 4, 2009).
2) This section is from Menikoff, p. 55.
3) On the same day it rule on Roe, the Supreme Court overturned Georgia’s abortion law in Doe v. Bolton, 410 U.S. 179 (1973). See http://en.wikipedia.org/wiki/Doe_v._bolton. Margie Hames, an Atlanta attorney supported by the ACLU, argued the case before the Supreme Court “relying principally on this Court’s decision in Griswold.” David J. Garrow. Liberty and Sexuality: The Right to Privacy and (Berkeley and Los Angeles: University of California Press 1998), 571.
4) Doe v. Bolton, 410 U.S. 179 (1973) Cornell University Law School, Supreme Court Collection. http://www.law.cornell.edu/supct/search/display.html?terms=doe%20v%20bolton&url=/supct/html/historics/ USSC_CR_0410_0179_ZD.html (accessed November 4, 2009).
5) Webster v. Reproductive Health Services, 492 U.S. 490 (1989). http://www.law.cornell.edu/supct/html/historics/USSC_CR_0492_0490_ZS.html (accessed November 4, 2009).Resources:
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Cornell University Law School online law collections at www.law.cornell.edu.
Menikoff, Jerry. Law and Bioethics. (Washington, DC: Georgetown University Press, 2001).
Wikipedia entries (various) at www.wikipedia.org.
