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Abortion access in the U.S.
Roe v. Wade:
Its basis; court
philosophies; political aspects
About the Roe vs. Wade decision:
Prior to 1973,
abortions were permitted in certain states but restricted or almost banned in others. Every state legislature created its own rules. There was no consistency across the U.S.
Then, in 1973, the U.S. Supreme Court delivered one of its most famous
and influential rulings: Roe v. Wade. It declared a Texas anti-abortion
statute unconstitutional and thereby affected abortion laws in many other
The Supreme Court justices determined that,
anywhere in the U.S.:
- During the first three months of pregnancy, a woman and her physician may
jointly decide to terminate a pregnancy. No significant state interference is
- Later in pregnancy, states can restrict abortion access with laws but
only if they allow abortions if needed to protect the woman's health.
- Once the fetus is viable, an abortion must still be available if the woman's health or life are at risk.
are free to pass legislation that will allow or prohibit late-term abortions
-- those on a viable fetus -- for other reasons.
Other regulations covering abortion access:
The regulations of the state's medical association usually place an additional
level of restriction on physicians who perform abortions. The regulations typically
late-term pregnancy terminations except for serious medical reasons. Each
association places a gestational limit beyond which abortions are generally prohibited --
e.g. 20 or 22 weeks. A physician who violated these regulations would risk having their
license to practice medicine terminated or temporarily suspended.
The basis of the Roe v. Wade decision:
The Supreme Court based its abortion access decision on the right of personal privacy which
the majority of Justices on the court found to be implicit in the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.The Free Dictionary defines "Due process," as:
"Due process of law is a legal concept that ensures the government will respect
all of a person's legal rights instead of just some or most of those legal
rights, when the government deprives a person of life, liberty, or property. Due
process has also been interpreted as placing limitations on laws and legal
proceedings in order to guarantee fundamental fairness, justice and liberty"
to all citizens.
The Supreme Court has determined that the due process clause implies
that governments cannot pass legislation that intrudes too deeply into the
personal life of its citizens. There are limits to the ability of states to
control personal behavior.
Section 1 of the 14th Amendment states:
"All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. 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." (The due process clause is emphasized)
Under this clause, the U.S. Supreme Court has "...recognized such rights and
the right to an early abortion, the right to use contraceptives, [and] the right to
medical treatment..." 3 For opposite-sex couples, the court has also
recognized "...the right to marry." 3 In mid-2003, the court also based its
Lawrence v. Texas
ruling on the right to privacy. That decision gave heterosexual, bisexual and homosexual adults the right to
engage in private consensual sexual activities, even if society generally
disapproved of the behavior.
Mr. Justice Stewart referred to the Fourteen Amendment when he issued a concurring statement
in Roe v. Wade. He
wrote, in part:
therefore, the Court today is correct in holding that the right asserted by Jane Roe is
embraced within the personal liberty protected by the Due Process Clause of the Fourteenth
Amendment. It is evident that the Texas abortion statute infringes that right directly.
Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom
than that worked by the inflexible criminal statute now in force in Texas.
Reversing Roe v. Wade:
This ruling has been in effect for over three decades. But it could be
reversed at any time.
Consider the ruling by the U.S. Supreme Court in its famous
Bowers v. Hardwick. That decision affirmed that the State of Georgia had the
authority to pass laws which criminalized private, consensual same-sex behavior
which the legislators felt was improper or immoral. Seventeen years later, in
2003, the Court issued its Lawrence v. Texas ruling
which repudiated and apologized for its former decision. The majority of justices
in 2003 had changed their mind and
ruled that states no longer had the authority to criminalize private consensual
activities, simply on the grounds that most people considered the behavior to be immoral. They based this decision on the
14th amendment's right of personal privacy and liberty -- the same basis on
which Roe v. Wade was decided. Justice Kennedy, writing for the majority,
apologized for the court's 1986 error. In an amazing passage, he stated that
Bowers' "continuance as precedent demeans the lives of homosexual
persons....[That decision] was not correct when it was decided, and it is not
correct today. It ought not to remain binding precedent. Bowers v. Hardwick
should be and now is overruled." The 2003 vote was 5 to 4. This has been a
very common ratio for cases involving moral and ethical topics -- particularly
those involving human sexuality. Typically, four conservative Jusices on the Court vote against equal rights; for liberals vote in favor, and Justice Kennedy, a conservative, has played the role of a "swing voter" by voting in favor of equal rights.
There is no reason why the court could not similarly overturn its 1973 Roe v. Wade ruling
in the future. Many observers believe that there would be a 5 to 4 vote in
favor of retaining Roe v. Wade if the case had been revisited in early 2005. A reversal in
opinion by only one justice would free the states to pass laws which would allow
individual states to re-criminalized early abortions. That became a distinct
possibility by early 2006 when a swing-voting Justice and a strict
constructionist justice were replaced by two strict constructionist justices.
With the announcement of retirement by Justice Kennedy in 2018-JUL, President Trump has nominated a conservative candidate, Brett Kavanaugh, to be his replacement. If his nomination is confirmed, it would shift the court further to the right and might quickly cause a reversal of Roe v. Wade and many other cases.
How judges and justices view laws and constitutions:
Generally speaking, there are two conflicting ways of viewing laws and
As living documents: The document's meaning is continually
evolving to meet changing cultural beliefs, practices, and knowledge.
Justice Scalia describes what he called this "conventional fallacy"
as interpreting the meaning of the text : "...from age to age [as]
whatever the society (or perhaps the Court) thinks it ought to mean."
In Trop v. Dulles (1958) the court discussed the evolution of the
meaning of the cruel and unusual punishment clause in the U.S.
Constitution's Eighth Amendment. The Court had earlier recognized
that: "the words of the Amendment are not precise...and that
their...scope is not static.. They stated in Trop v. Dulles that
"The Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society." 4
As an enduring document: most conservative
Justices on the Supreme Court, agrees with this position. They are often referred to as "strict
constructionists." They interpret a legal document as meaning
"today not what current society (much less the Court) thinks it ought to
mean, but what it meant when it was adopted." 5 Viewing the
Bill of Rights and the rest of the U.S.
Constitution as an enduring document requires that the courts consider the
society and the era in which the text was actually written. They interpret the text within
the belief systems of that time. On matters such as
abortion access, the death penalty,
equal rights for gays and lesbians, and
other "hot" topics, there has been considerable
change during the intervening centuries. But today's understanding is immaterial
when it comes to interpretation of the Constitution as an enduring document. The
U.S. Constitution does not discuss sexual orientation or abortion. Thus it
is neutral on these and similar topics. A state could pass a law
criminalizing same-sex behavior or making any or all abortions illegal. It
could not be declared unconstitutional if a majority of Supreme Court
justices become strict reconstructionists.
Three justices of the Supreme Court, all of whom were appointed by Republican
presidents, appear to interpret the Constitution consistently in this way. They tend to vote as a conservative block on
some ethical and moral matters. One was Antonin Scalia (appointed by President Reagan)
who died in early 2016. Others are Chief Justice William Rhenquist (appointed
by President Nixon) and Clarence Thomas (appointed by President George Bush). Justice Kennedy has announced that he will retire in mid 2018. President Trump has nominated a new strict constructionist as Justice Kennedy's replacement. Over time, this could reverse many earlier decisions of the Supreme Court, including those on same-gender sexual behavior, gay marriage, interracial marriage, abortion access, etc.
The Justices' methods of interpreting the Constitution has influenced their decisions
in cases involving abortion access:
The 2004-NOV presidential election:
It was generally
acknowledged that the president would have the opportunity to nominate three new justices
to the U.S. Supreme Court during his 2004
to 2008 term.
President George W. Bush has indicated that he did not have a pro-life "litmus test" for his appointments to the Supreme Court. But he has
also indicated that he will use Justices Scalia and Thomas as a model when selecting
new nominees. Some observers felt before Bush's reelection that:
- There is zero possibility that the President would nominate a Justice
who is pro-choice.
If the number of very conservative justices is increased by one, Roe v.
Wade may well be overturned.
If the number is increased by two, Roe v. Wade will almost certainly be overturned,
and Griswold v. Connecticut -- the decision that decriminalized access to
contraception supplies -- may be in danger.
- It is conceivable, but improbable, that the Supreme Court could make a
blanket decision that human personhood begins at conception. This would mean
that every fertilized ovum has a right to life. All abortions would then be,
by definition, murder. Essentially all abortions would be outlawed
throughout the U.S. Self defense would be the only justification for an
Democratic nominee John Kerry was reported as having stating early in his campaign:
the only candidate running for president who hasn't played games, fudged around.
If you believe that choice is a constitutional right, and I do, and if you
believe that Roe v. Wade is the embodiment of that right ... I will not appoint
a justice to the Supreme Court of the United States who will undo that right."
If Kerry had been elected president, he would probably have acted to move the
current pro-life/pro-choice balance of the Supreme Court in a liberal direction.
As it happens, by early 2006, one "swing voting" justice and one a strict
constructionist justice have been replaced by two with the latter philosophy,
making a net increase of one conservative justice. Roe v. Wade may be
Justice Antonin Scalia states that abortion right not in constitution:
Justice Scalia debated with Nadine Strossen, president of the American
Civil Liberties Union (ACLU) on a one-hour television program on 2006-OCT-15.
Justice Scalia said that unelected judges have no place deciding politically
charged questions in areas where the U.S. Constitution is silent. He said that
liberal judges in the past had established new political rights, such as
abortion access. He warned:
"Someday, you're going to get a very conservative Supreme Court and
regret that approach. ... On controversial issues on stuff like homosexual
rights, abortion, we debate with each other and persuade each other and vote
on it either through [our elected] representatives or a constitutional
He generally disagreed with the stands taken by the ACLU. However, he noted
cases where he has agreed. These include rulings upholding the right of a
citizen to burn the flag, and a 2004 decision that that a U.S. citizen seized in
Afghanistan during wartime could challenge his detention as an enemy combatant
in U.S. courts. 10
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Jerry Goldman et al., "Roe vs.
Wade, 410 U.S. 113 (1973)," Text, abstract, etc. are online at:
"Due process," The Free Dictionary, at:
"Encyclopedia: United States Constitution/Amendment Fourteen,"
"Trop v. Dulles," U.S. Supreme Court, 1958-MAR-31, at:
Antonin Scalaia, "God's Justice and Ours," First Things 123,
2002-MAY, Page 17 to 21.
Jerry Goldman et al., "Planned Parenthood v. Casey, 505 U.S. 833
(1992)." Text, abstract, etc. are online at:
Paul Benjamin Linton, "How Not To Overturn Roe v. Wade," First
Things 127, 2002-NOV, Pages 15 to 16.
Jerry Goldman et al., "Stenberg v. Carhart. 530 U.S. 914 (2000)
." Text, abstract, etc. are online at:
"Kerry Sets Pro-abortion Litmus Test for Judges," NewsMax.com,
Hope Yen, "Scalia says Constitution doesn't back abortion," The
Associated Press, 2006-OCT-16, at:
Copyright © 2004 to 2018 by Ontario Consultants on
Latest update: 2018-OCT-02
Author: B.A. Robinson