The Texas State Court

The Texas State Court on the one hand, primarily decided the case based on the provisions of the ninth amendment but failed to give an injunction against the laws barring abortion. The court decision was that the ninth amendment protected a person’s right to privacy, it states by part, “the enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

” On the other hand, the Supreme Court through Justice Harry Blackmun based its arguments to the fourteenth amendment, he asserted, “the right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of the right of the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

” Abortion in the US was made a crime in 1821 when in Connecticut a statute was enacted barring it, other states followed suit and by 1900 abortion was barred in every state. In ruling of the Roe v. Wade, Blackmun analyzed several historical accounts of abortion including those of Greek empire, Hippocratic Oath, Persian Empire, Roman era, the common law, American Medical Association, English statutory law, American bar Association, and the American Public Health Association.

All this did not yield what the court deemed a sufficient historical basis to justify the Texas statute, and therefore concluded that the state cannot restrict the abortion during the first trimester of a pregnancy. Legally and politically the US constitution does not unambiguously mention any right of privacy, the court found a basis to lay its claims in many provisions of the Bill of Rights, the Penumbras, and the Fourteenth Amendment.

But, in contrast to what it had done with the Griswold v. Connecticut (used penumbras and the bill of rights), the court did not use either the bill of rights or the penumbras, it majored its arguments primarily on the Fourteenth Amendment to assert that “the right of personal privacy encompassed abortion decision. ”

Again, on the argument of the viability of the fetus, the court reasoned that there was no consensus among the medical fraternity on when life began , and hence the court was no better in speculating either, therefore in regards to the Fourteenth Amendment of 1868 context, the fetus was not defined as a person and thus did not qualify to enjoy the rights to life, after all the original intent of the constitution at the time of the enactment of the Fourteenth Amendment in 1868 did not require the protection of the unborn.

Roe v. Wade gathered almost equal numbers of proponents and opponents. Members of the bench were as divided as the public, each drawing support for his/her decision either legally, politically, or morally. The then seating president, Ronald Reagan was one such man, he opposed Roe v. Wade decision. Acting on his powers of federal judicial appointments he served to increase the opposition to Roe on the bench. Critics argued that he appointed judges on basis of the stand on Roe v.

Wade – only those who opposed Roe qualified the appointments, however, he denied this but acknowledged that he only acted within his powers to appoint judges who were qualified to read and interpret the law but not to write it, adding that previously there were such judges who legislated in the courts. The appointment of Sandra Day O’Connor is a case in point; she immediately began denting holes to the Roe trimester based analysis, by terming it unworkable and with others began drawing a roadmap to abortion cases. In Planned Parenthood v.

Casey sitting together with Justice Kennedy and Justice Souter, Justice O’Connor revisited Roe’s decision and concluded that three parts used in the conclusion be retained; 1) a recognition of a woman’s right to choose to have an abortion before fetal viability and obtain it without undue interference from the state; 2) a confirmation of the states power to restrict abortion after viability, if the law contains exceptions for pregnancies endangering a woman’s life or health, and; 3) the principle that the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

The case pitted five abortion clinicians, a physician, and doctors who provide abortions against five Pennsylvania Abortion Control Act of 1982 regulations that required a woman to give an informed consent prior to an abortion, to be given specific information 24 hours prior to abortion, in cases of minors their parents t provide consent, while for married people to have their husbands signed consents. The District Court ruled that the five regulations were unconstitutional and permanently enjoined their enforcement. Later, the Court of Appeal ruled out the husbands’ notification clause on grounds it was burdening to the pregnant mother, but reinstated the parental consent, informed consent, and 24-hour waiting period were constitutionally validated – ULTIMATELY rendering Roe v. Wade decision inconsequential.

The Reagan’s presidency and the subsequent appointment of anti-Roe judges meant that benefits/freedom granted by Roe v. were now undermined. This was seen in the final verdict given by the Court in the Planned Parenthood v. Casey case - more restrictions were imposed such as parental consent, informed consent, and 24-hour waiting period. Initially, Roe made it possible for women to carryout abortions at will during the first trimester of the pregnancy a decision which was overturned by Planned Parenthood v. Casey. Therefore Reagan’s presidency meant that Roe’s freedom to abort was highly encroached i. e. to fulfill all those restrictions was not an easy thing. Roe v.

Wade gave Roe (women) the freedom to carry out abortion during the first trimester of the pregnancy without any restrictions; it also set stage for regulations to be followed if abortion was to be carried out in the other two trimesters. However, Planned Parenthood v. Casey undermined the freedom that Roe v. Wade extended to women, and as a result many states adopted more strict measures that sought to make the procurement of an abortion more difficult. In Nebraska, et al v. Cahart, the Supreme Court found Nebraska law that barred partial-birth abortion illegal, without providing exceptions to preserve a woman’s health to be in violation of the Due Process Clause and therefore declared it unconstitutional.

References:

Civil Rights Acts of 1864, accessed on March 17, 2009 Roe v. Wade, 410 U. S. 113 (1973), accessed on March 17, 2009