Thread: Legal opposition to Roe V Wade?

Originally Posted by Leighton

No. Supreme Court trumps all. Unless they reverse their own decision (unlikely). Whatever is in that opinion is the law.

edit: there is one other way. Amend the Constitution. GL with that though.

So....where did Roe V Wade come from in the first place to be tried before the Supreme Court? Wasn't it an issue that couldn't be decided in the lower courts, and thus had to be argued all the way up the ladder?

Roe V Wade is/was not an ironclad decision (and thus contributing to continuing contention), if a legal argument could be made via other legal precidents as I mentioned above (I'm no legal eagle, so paternity testing was what I could come up with as a first example) could it not therefore be overturned?.

If a new challenge to an existing law can be brought to court, does that not thereby allow the same issue to once again be brought before the Supreme Court and allow it to rule on the issue again, as there is now possibly new evidence (such as DNA testing, which was not around in 1974, right?) to weigh in the Court's decisions?

Originally Posted by Seraphim

So....where did Roe V Wade come from in the first place to be tried before the Supreme Court? Wasn't it an issue that couldn't be decided in the lower courts, and thus had to be argued all the way up the ladder?

Roe V Wade is/was not an ironclad decision (and thus contributing to continuing contention), if a legal argument could be made via other legal precidents as I mentioned above (I'm no legal eagle, so paternity testing was what I could come up with as a first example) could it not therefore be overturned?.

If a new challenge to an existing law can be brought to court, does that not thereby allow the same issue to once again be brought before the Supreme Court and allow it to rule on the issue again, as there is now possibly new evidence (such as DNA testing, which was not around in 1974, right?) to weigh in the Court's decisions?

Apparently it came to the SCT through the federal district courts through a constitutional challenge against the rights of the state to criminally punish abortions.

Roe v. Wade

DISCLAIMER!!!!!!!!!!
The following is not a legal opinion. Nor is it any sort of opinion. What follows are exerpts from the Supreme Court Decision found at the above link. The citation is 410 U.S. 113. The commentary is simply a paraphrase of what the court has said or what is contained within the quoted material.


relevant TX statute:

The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code. ^[n1] These make it a crime to "procure an abortion," as therein [p118] defined, or to attempt one, except with respect to "an abortion procured or attempted by medical advice for the purpose of saving the life of the mother." Similar statutes are in existence in a majority of the States. ^[n2] [p119]

Roe's Constitutional Claim involved the personal liberty right of the 14th Amendment. :

The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id. at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S. at 486 (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.

Apparently under the common law, an abortion performed before quickening was not an indictable offense. Thus, all anti-abortion laws are therefore purely statutory in nature and have no basis in the common law.

The magic words:

This 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 rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy

After that quote the court enunciates some rationale behind the decision.

The privacy right is not absolute

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The [p154] Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) ( sterilization).

Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute, and is subject to some limitations; and that, at some point, the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S. at 485; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308 (1940); see [p156] Eisenstadt v. Baird, 405 U.S. at 460, 463-464 (WHITE, J., concurring in result).

"A person does not include the unborn"

The court refuses to define where life begins.

When the state may regulate abortions:

With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

...

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [p164] during that period, except when it is necessary to preserve the life or health of the mother.

...
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.

And that was a very interesting read. Well Seraphim, clearly the SCt opinion does not provide you the answer you seek, thus the legal options the expectant father may or may not have probably resides within that specific states jurisprudence. I'm emailing you as you read this.

Thanks for the legal look-up Leighton.

I'm sorry but I only read some of that Leighton.

isn't it clear what the 14th amendment concerns by looking at historical context?

Okay...so after a little further review. Is the key here the 14th and 9th amendments?

A quick perusal of them: the 14th amendment is saying that people born in the US are citizens of the United States, right?

Does the protection under the law extend only to citizens? If person were a citizen of France and came to the US on holiday, could I therefore stab him/her to death, just because they were not a citizen? That is outrageous! And a rather poor defense argument against the possible rights of the unborn, citizen yet, or not.

Or what am I missing in regards to what part of the 14th is used to justify the legality of abortion?

Would it be the due process clause:
"procedural due process rights requiring that certain steps, such as a hearing, be followed before a person's "life, liberty, or property" can be taken away."

Shouldn't that then require a hearing at least, before an unborn's life be taken away? Or is that the catch, that in regards to the due process clause, the fact that the unborn is not yet a citizen, and thus can be denied due process?


The 9th is basically a place holder, as every concievable "right" could obviously not be writen into the Constitution one by one, right?

But they use that as an argument that "since the Constitution didn't say that we couldn't have abortions on demand, that therefore it must be a right under the 9th?!" Is that right?

I don't think they spelled out in the Constitution that my possible desire to smoke marijuana, snort cocaine and mainline heroin should be denied, and therefore, under the 9th it should clearly be my right!

The court made it clear that the key to the decision was the 14th Amendment. Thats what I read anyway. Not sure how the 9th would work in either side's favor.

@ White,
To the layperson, yes. To the court, no. The historical context and legislative history are only factors the court looks at when making its decision. Ultimately, the court may decide that the current state of affairs makes the old rationales null and void. Historically this has happened a lot. Ie, the Rule in Shelley's case, the rule against perpetuities, the rule against some weird thing that doesn't apply anymore because we don't have a monarch...etc.

The previous opinions written by the Supreme Court about an amendment/subject carry a lot of weight as well.

Heck, if only the historical context that the drafters wrote the constitution under were looked at, the 2nd amemdment would only be for the raising of a militia; and since the militia is the National Guard, we wouldn't have the right to bear arms. This would be a strong argument against the 2nd amendment anyway.

Originally Posted by Seraphim

I don't think they spelled out in the Constitution that my possible desire to smoke marijuana, snort cocaine and mainline heroin should be denied, and therefore, under the 9th it should clearly be my right!

i agree completely.

Well, I think there is no doubt that such a distinction between the woman's body and the fetus/baby body can be drawn - the line is at the placenta, which is fairly large organ but I'm sure that not many people will have issues if most of it is given to the fetus/baby. I think it would be great if the legal definition can be changed to better reflect the scientific facts.

But then since a woman still has full rights over her body she can still chose the placenta to be detached from her. Unfortunately most of the time that means that the fetus/baby will be dead by any definition as a result of such action.
So I don't think this changes anything from a practical point of view. May be it'll make abortions be performed in a very specific way to ensure that the fetus/baby is not damaged in any way during the process and be given a chance to survive on its own or with the help of some other host or equipment. It seems to me that if this was a medical possibility it would most certainly change things dramatically (as long as the pro-life people are willing to put their money where their mouth is).

Really when you get right down to brass tax the only way to destroy the argument is to define when life starts.

Medically does it begin with a heartbeat? Religiously does it begin at conception? Does life start when a life is viable? What does it mean to be a viable life?

If you cease having a viable life does that mean that you cease to be a person with rights?

If you say that life begins with a heart beat, what if the heart stops inutero? How does the state deal with the number of still births and spontaneous abortions, aka miscarriages.

If life begins at conception (the process of fertilization or implantation or both) then again what about miscarriage, still births etc.

Do we need to issue a SSN to every conceived fetus? Do they get benefits, rights, etc. Look at the paper work man.

Scenario:

You and your wife are finally expecting that lovely baby. All the urine tests come back. You go to the SS office and apply for a SSN for Jr. Two weeks later your wife miscarries. Now you have to declare Jr dead, how? There is nothing to necropsy. A blood test before and after would say that your wife has elevated hormone levels before and decreased levels afterward. What does the ME put as cause of death? I would guess natural causes but I have no idea. How do you filter out the fraud? What happens when we run out of numbers?

To split a hair here I see no real difference other than 1 or 2 weeks between a medically viable and a religiously viable fetus.

I am done with my soapbox.

Apologies if this argument hits too close to home for some.

Originally Posted by singlewedge

If you say that life begins with a heart beat, what if the heart stops inutero? How does the state deal with the number of still births and spontaneous abortions, aka miscarriages.

If life begins at conception (the process of fertilization or implantation or both) then again what about miscarriage, still births etc.

Do we need to issue a SSN to every conceived fetus? Do they get benefits, rights, etc. Look at the paper work man.

Scenario:

You and your wife are finally expecting that lovely baby. All the urine tests come back. You go to the SS office and apply for a SSN for Jr. Two weeks later your wife miscarries. Now you have to declare Jr dead, how? There is nothing to necropsy. A blood test before and after would say that your wife has elevated hormone levels before and decreased levels afterward. What does the ME put as cause of death? I would guess natural causes but I have no idea. How do you filter out the fraud? What happens when we run out of numbers?

To split a hair here I see no real difference other than 1 or 2 weeks between a medically viable and a religiously viable fetus.

I am done with my soapbox.

Apologies if this argument hits too close to home for some.

Sounds like you are putting the cart before the horse in your arguments here.

Umm, as far as I know, with death by natural causes the state does not have to get involved in for anybody? Are you implying they need to somehow press charges?

And who said that you have to issue a SSN? That person is still 65years +9months away from recieving retirement benefits anyhow! Plenty of time for that paperwork later. All I'm asking for here is a legal protection for the unborn, not a labor union for higher wages for them!