Roe vs Wade. Constitutionally sound?

Im not trying to start a flame war on this one. Just wanted to get your opinion and explanation.

Roe v. Wade, U.S. 113 (1973)

A pregnant single woman brought a class action suit challenging Texas's criminal abortion laws.

JUDGES: BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C. J., DOUGLAS, J., and STEWART, J., filed concurring opinions. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined. REHNQUIST, J., filed a dissenting opinion.

OPINION: MR. JUSTICE BLACKMUN delivered the opinion of the Court. ...

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

2. The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. ...

Not really sound at all. Especially point {c] concerning what is commonly called "partial birth abortion"

Roe V Wade basically made null and void the 10th amendment concerning states rights and the issue of abortion.

The court found a right to privacy included a right to a abortion basically up to the ninth month regardless of current state law.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Roe will eventually be overturned and the sent back to the states to deal with. Personally, I don't think that is such a bad idea. It will depoliticize the issue to a certain degree and maybe it can be settled more reasonably by individual states.

By the way, your link is not working

Thanks for your opinion.

I also find it funny that the court sighted a right to privacy as a reason that states cannot ban first trimester abortions, but then stated in the same decision that states are free to ban abortions performed in the third trimester (with a "health of the mother" exception). This would seem to imply that a third trimester fetus has more rights than a first trimester fetus, despite the idea behind the ruling that a right to privacy allows a woman to have an abortion, regardless of state law banning it at the time.

If you think the 10th amendment (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people)protects a states right to out law abortion; what rights of the individual do you think the 9th amendment(The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people) protects.

the Bible states would outlaw it and poor women, believe it or not, do not have the money to travel elsewhere. IT IS A BIG DEAL.

in those states to arrange bus trips. This already happens for women who have missed their current states abortion deadlines, and they often obtain assistance to go to another state that has later term abortions. I think the issue would finally be spelled out to the public. Particularly if some states outlaw abortion.

There are plenty of pro-choice multi-millionaires out there.

If abortion were made legal in some states and illegal in others and the activist pro-choice community didn't step up to help poor women get access to abortions, then they'd be the worst of the worthless.

but I strongly favor legal abortion.

I couldn't get your link to work. This one, which doesn't have the last three digits, worked for me.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=410&invol=113

Without getting into the current political make-up of SCOTUS, the problem with Roe is that it revolves in part around the issue of viability of the fetus. That is, the Texas law in question was struck down in part because it made no distinctions other than "life saving" or not.

"3. State criminal abortion laws, like those involved here, 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. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term."

Why this matters now is that the point of viability has changed. In 1973, the traditional trimester formula made sense. As medical technology advances, the timing of the point of viability decreases. Roe is often interpreted as a privacy case, and it is, but only to a point. This is an over-simplification, but according to decision in Roe, the privacy of the mother trumps any rights of "potential life" up to the point of viability. This suggests that the privacy right in question here is malleable.

Opponents of Roe argue their cases in various ways, but the most dangerous ones to the pro-choice point of view are those that target viability.

The other common attack strategy is an assault on the right of privacy itself. This has much larger implications, but it cannot be discussed without mentioning the dominant philosophy of the court. The right of privacy is a "living document" interpretation of the Constitution. Strict constructionists, which are soon to be in the majority, deny this line of interpretation is valid and may strike Roe on those grounds alone, impacting several other rulings in the process.

the Due process clause of the 14th Amendment on which the right to legal abortion is based had been used before to find certain personal rights.

A case called Lochner v. New York (1918..ish) said that a person had the right to make a contract with another without interference from the state. The court struck down a law regulating the number of hours bakers can work. What this did was invalidate a lot of the New Deal and labor laws. Eventually, the Court realized that the country wanted regulation of business and labor and eventually abandoned the "liberty of contract" doctrine.

It was on this same logic that the Court came up with the right to a legal abortion. So it was not like the court was forging new ground with this use of the 14th amendment.

Fourteenth Amendment for things other than what it was intended for.

So what was it intended for?

Well that's pretty clear.

The Thirteenth, Fourteenth and Fifteenth Amendments were passed right after the Civil War.

The Thirteenth Amendment abolished slavery.
The Fourteenth Amendment made freed slaves citizens.
The Fifteenth Amendment gave freed slaves (males) the right to vote.

Just to make clear what it was about, the Fourteenth Amendment also did two other things. It made it illegal for the federal or state governments to repay the Confederate war debt, and it made it illegal for certain Confederate leaders to run for US government offices.

Now the Fourteenth Amendment is used to do everything from making abortion a Constitutional right to making corporations people. I don't buy it.

The Fourteenth Amendment was passed for a specific purpose and I think it's wrong and dangerous to stretch laws by creative interpretation so that it doesn't have any resemblance to what was passed.

Certainly the representatives, senators and legislators ho voted for it would think we were crazy arguing bortion with the Fourteenth Amendment. "Abortion? We passed it for the freedmen. What does abortion have to do with anything," they might say.

BTW just as an aside, I think if the Civil War happened today, the government would have payed the Confederate War debt off and traded in Confederate dollars at some rate too. Just about every person in the south had his treasure in Confederate bonds or Confederate dollars. When the war ended and they became worthless, the entire half of the country became destitute overnight and that has taken many generations to fix. It really still isn't fixed today. I think that was a major blunder which hurt the USA.

I agree to the extent that the 14th amendment has been abused, rather severely, over the years. I must respectfully end my agreement, however, over the matter of "intent," which is to say the premise of your discomfort is discomforting to me. :-)

In my view, "original intent," which is what you're suggesting here be the arbiter of interpretation for a constitutional provision, is utterly impossible to determine. Entire forests have been razed over this question, and I suppose it does me little good to try to rehash it all here, so I'll summarize. At its very base, the notion of "original intent" rests on a false premise, to wit the idea that a single, identifiable conscious mind established a singular intent that could be completely and clearly expressed via the text of a legal document. As we know, laws are rarely even conceived by a single individual, much less an individual having a single, coherent, clearly stated intent. Even a dictator who establishes law by fiat may and usually does have various purposes in mind when declaring law, not all or even most of which are clearly stated. Laws in a democracy are even more complex due to the nature of their progression from proposal to legal code. Across the course of a proposed law's journey from idea to implementation, different people touch it and tweak it, all with their own agendas and intent.

As an absurdly simple example of how difficult determining intent is, consider the following "law."

Do not kill.

The most obvious intent of this law is to prevent people from being killed without the killer facing some sort of consequence. Did I say person? Nowhere in the text is this law limited to persons. Suppose I am the leader of the state now, and I believe this law means no person should kill any mammal. Now, assume this law was established, oh, three thousand years ago. We *might* be able to find an example of the thought process behind the individual or individuals responsible for enacting this law, and we might able to use this to argue "intent." However, this example is not textual law; thus the "intent" argument fails on its face at this moment because the cornerstone of original intent as arbiter of meaning rests in the proposition that all intent is inherent to the words themselves.

Language is vague, and the simpler and more concise it is, the more vague it tends to be. After declaring the base definition of a citizen, the 14th Amendment most simply extends equal protection and due process to all those citizens, in essence extending and expanding the rights guaranteed by the Fifth Amendment to everyone in the United States who is a citizen. But what, exactly, that means is fuzzy.

This is not to suggest I believe the expansive use of this amendment is correct in all its particulars. Its use in creating "person-hood" for corporations is a gross perversion of both the intent and spirit of the law and cannot, in my view, be defended except by invoking a long history of sophist legal manipulation that has unfortunately come to be established as sacred precedent. (Of course, you won't see right-wingers attacking that particular sort of so-called judicial activism.) I am also rather noncommittal on its use in an abortion rights case, more for reasons mentioned previously than for anything having to do with original intent. That is I believe anchoring the right to an abortion on a privacy issue defined by fetus viability is inherently weak and will eventually be overturned, potentially with disastrous consequences far beyond the proximate issue of abortion itself.

People who write a law don't own it for all time.

The Constitution of 1787 and Bill of Rights contain and permit the defect that was slavery. This prevented them from being written to contain a proper definition of citizenship and the government-citizen relationship.

This had to be solved in 1865 as a general problem, not merely as the narrower question of black ex-slaves' minimal rights. The excessive rights the upper Southern castes gave themselves prior to and during the Civil War were the flip side of the problem. There had to be a principled and situationally reasonable set of criteria bring them both to equal before the law. The debate was pretty extensive- and the people writing the amendment worried alot about language that would be an invitation to women, Indians, free blacks, and immigrants to demand rights perceived as not due them at the time. So they wrote a very minimal positive statute and pretty detailed bars that would give great leeway to the Supreme Court to interpret and the Congress to enforce it.

It remains the controlling statute defining citizenship and what constitutes fairness to citizens as groups. It is not simply a pragmatic statute about forcing state governments to let ex-slaves vote- the defect in the Constitution it remedied (to some degree, anyway) was enormous.

Since 1941 the essential motif of American domestic politics is different groups deciding they are mature enough, and unfairly legally disadvantaged historically, that the time has come to demand a fullness of rights as citizens. There is no other Constitutional test or definition of fullness of due rights other than those written out in Section 1 of the 14th Amendment.

All of our present Constitutional fighting with pretty much revolves around this one bit of the Constitution. The verdict today about 'Intelligent Design', Kitzmuller v Dover Area School District, uses the Due Process Clause to extend the Establishment Clause application to individual students, parents, and teachers. All social rights cases revolve around it- from Brown v Board, Griswold v Connecticut, Baker, Goldberg, Lawrence v Texas, and Roe. Grutter v Bollinger. Schiavo v Schiavo. Ayotte v PPNNE. Goodridge v DPH. The Guantanamo Bay inmate cases. The death penalty cases (the criteria of the 14th control the argument about what constitutes 'cruel and unusual').

The Right has in fact created whole judicial ideologies to bypass and void the plain language and integrity of interpretation of Section 1 of the 14th- 'strict constructionism' is the more famous one, 'originalism' is sort of its ugly gangster cousin. They've spent an awful lot of energy confusing and filling 14th Amendment jurisprudence with specious arguments (i.e. the bogus states' rights/antifederalist doctrine created during Reconstruction) and all kinds of grotesque misapplications and inversions to protect privilege. Plessy v Ferguson and Bush v Gore are the classics of the genre. Richardson v Ramirez is the great early Rehnquist travesty not yet overturned. Santa Clara Cty v Southern Pacific RR is one of the great defectives.

You may also want to read up on the sheer amounts of war debt run up during the Civil War. As GNP- number of years to repay it- it was far greater than the amount we have now, utterly crushing in its size then. There simply wasn't a way for the North to assume the Southern debt without itself going bankrupt, that was part of it. But there was also horrible moral revulsion in the North at recompensing the people who funded a war against them to create an aristocracy if not monarchy, retain if not intensify further the evil of slavery, wrote a new constitution to enable all that, and- the crowning vileness- purported to believe this to be just and Divine Will.

I doubt the South would have had a much better fate if its badly incurred debts had been repaid. There simply wasn't the educated/skilled labor base the North had for industrialization, or the ores and coal, and the rigid caste system was retained that made collective action and infrastructure improvement politically impossible before FDR brought in federal money and Northern contracting and employment practices. The rich Southerners and British who owned almost all the Southern war debt would have used any money given them to speculate locally in real estate or invested it in Northern industries. Or Caribbean plantations. It would simply not have benefited average Southerners beyond the initial reconstruction phase.

I sure agree with that sentiment, but that's why we elect representatives and senators and legislators, to make new laws.

And that's why the Constitution has an amendment process, to change the written Constitution.

So if you want a law that says marijuana should be legl, then either pass a Constitutional Amendment or a law in congress.

But don't interpret the Seventeenth Amendment (Direct election of senators) to guarantee the right to everyone to smoke marijuana, because that's making a mockery out of the words of the amendment which was passed for no such purpose.

If you can stretch a law to mean anything you want it to, then the law no longer has any meaning. It means whatever you want it to mean, and then you might as well throw it away.

however -- roe v wade has been found to have wiggle room in it.
depending on the {activist?} judge.

this chipping away at roe is one of teh reasons why i think it's time to revisit the equal rights amendment.

States can argue that the fetus has a right to live - there's nothing in the Constitution to bar that - and outlaw abortion.

As a poster above stated, I suspect that abortion will revert to its previous position - legal some places, illegal in other places.

In your summation, you omitted wht I think is a critical point: State criminal abortion laws, like those involved here, 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. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term. Pp. 147-164.

I believe the right to privacy must be held as a constitutional right; or, the 9th amendment has no meaning at all: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Unless the state can prove a compelling reason to outlaw abortion; they cannot interfere with a woman's right to one.

I sorta vote for 'pi-mesters',
one lunar month times {approx.} 3.141592 ,
as the time, blah blah blah , whatever,
when Santa, the Great Pumpkin, Jupiter, Bunny Foo Foo, etc
{depending on future religion}
gives out souls.