Ali's Blog on Abortion posted by DB

In mid 20th century, two cases before the US Supreme Court stand out as major legal (and resulting social) landmarks of that era. The first was the 1954 decision Brown v The Board of Education which set the legal groundwork for the elimination of this nation’s segregated schools The second case was the 1973 ruling of Roe v Wade, which together with its two successor rulings are the subject of this blog.

The14th Amendment, states that “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.” But as to the deciding question of the unborn, the Constitution is more vague, as was the case in Texas in March of 1970, for Jane Roe. The Texas statutes (Arts. 1191-1194 and 1196 of the State's Penal Code) at the time stated that it was a crime to “procure an abortion,” or to attempt one, with the only exception being to save the life of the mother, as advised by a physician. Abortions first became classified as a criminal act in Texas in 1854, and remained so until the decision of the Supreme Court in Roe v. Wade.

Roe, a single woman, brought her case against Wade, respondent and District Attorney of Dallas County, Texas, seeking “a declaratory judgement that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.” Roe wanted to be able to legally terminate her pregnancy by a licensed and competent physician in safe conditions with no threat to her health. Because Roe’s pregnancy was not visibly life-threatening, she was forbidden from procuring a legal abortion in the state of Texas. Roe’s claim was that “the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.” Roe purported to sue "on behalf of herself and all other women” in similar situations.

Licensed physician James Hubert Hallford requested that he be allowed to intervene in Roe’s action. Hallford had been arrested on two previous violations of the Texas abortion statutes, and claimed that he was “unable to determine whether they fell within or outside the exception recognized by Article 1196.” Hallford backed up Roe’s claim, and added that the Texas laws were not only vague, but in full violation of the Fourteenth Amendment, mainly that “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.” Hallford also stated that the statutes violated his right to practice medicine, and his patients’ rights to privacy, as granted by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

Thus, the constitutional questions that were raised were: if the unborn can be classified as possessing full, legal citizenship, and the right of a woman to control her own physical being in the circumstances of pregnancy. Do the unborn receive a “right to life?” Or should a fetus be seen as an extension of their mother, and thus, not a full person, with no separate rights or privileges? The court ruled that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn, and thus, a fetus does not receive individual rights.

The court further ruled that “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.” In other words, abortions are permissible for whatever reason, up until the fetus is viable, (able to survive outside the mother’s womb or with life sustaining assistance, such as an incubator.) Viability is generally placed at about 28 weeks after conception. Prior to this, for an abortion to take place, the “decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.” The state is allowed “to regulate the abortion procedure in ways that are reasonably related to maternal health,” subsequent to the end of the first trimester. Reasonably, the state still holds the right to regulate and possibly prevent abortion in the case that “the preservation of the life or health of the mother” is threatened. Basically, Roe v. Wade supports what is today referred to as ‘pro-choice.’

Griswold v. Connecticut involved Estelle Griswold, (Executive Director of the Planned Parenthood League of Connecticut) and Dr. C. Lee Buxton, (a licensed physician and a professor at the Yale Medical School who served as Medical Director for the League at its Center in New Haven), who jointly appealed a lower court which ruled against them. The Center was in operation from November 1 to November 10, 1961, on which date both Griswold and Buxton were arrested for operating the clinic. The Center functioned to give “information, instruction, and medical advice to married persons as to the means of preventing conception.” Appellants would examine the wife and prescribe a contraceptive device. In most cases fees were charged, though a few couples were examined for free.
Connecticut law at the time prohibited the use and prescribing of contraceptives. Statutes of the state of Connecticut (1958) whose constitutionality was involved in the appeal are 53-32 and 54-196. Section 53-32 requires that "Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned." Section 54-196 states "Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender." Both appellants were found guilty of committing these offenses, and were fined $100 each.

Upon appeal to the United States Supreme Court, the final ruling was that the Constitution protected an individual’s right to privacy. The law prohibiting contraceptives was invalidated on the grounds that it violated a right to marital privacy.

In the case of Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey, the newly instituted Pennsylvania Abortion Control Act was accused of being unconstitutional. According to the landmark case of Roe v. Wade, abortions are a woman’s right, and are protected by the Due Process Clause of the Fourteenth Amendment. Five provisions of the Pennsylvania Abortion Control Act were challenged. These were the laws of “spousal notification,” “parental consent,” the required 24-hour waiting period before receiving an abortion, the “informed consent,” and lastly, the law that imposed reporting requirements on abortion clinics.

The state of Pennsylvania defended the act, as well as arguing that the monumental decision of Roe v. Wade should be overturned. The plaintiffs were a collective group of abortion facilities and physicians providing abortions. The case was first filed in the United States District Court for the Eastern District of Pennsylvania, and the act was ruled as being unconstitutional. The case was then presented to the Court of Appeals that also affirmed the decision of the act as being unconstitutional. All provisions in the legislation were upheld with the exception of the husband notification rule. With the case before the Supreme Court, it was suggusted that the ruling on Roe v. Wade be reconsidered, yet the majority vote between the justices was to reaffirm the final decision on Roe.

The decisions of the Supreme Court in the abortion- related cases of Roe v. Wade, Griswold v. Connecticut and Planned Parenthood v. Casey, have all led to the extension of women’s rights and liberties as well as defining the rights of the unborn. The latter two rulings served to clarify the more fundamental Roe v. Wade and thus extended it’s applicability and social impact. In the aggregate, they stand as among the most significant rulings of the courts in our nation’s history by reason of their decisive clarity and the ongoing divisiveness they have engendered.