Right To An Abortion Introduction
No decision of the Supreme Court in the twentieth century has been as controversial as the 1973 Roe v. Wade decision holding that ladies have a right to select to have an abortion in the coursework of the first trimesters of a pregnancy. Attorneys for Roe had suggested several constitutional provisions might be violated by the Los angeles law prohibiting abortions except when necessary to save the life of the sister. The law was said to have been an establishment of religion in violation of the First Amendment, unconstitionally vague (the ground used in Blackmun’s first draft of his view), a denial of equal protection of the laws, and a violation of the Ninth Amendment (which states that positive rights not specified in the first six amendments are reserved to the people). The Court in Roe chosen, however, to base its decision on the Due Process Clause of the Fourteenth Amendment and the so-called “right of privacy” protected in earlier decisions such as Griswold v Connecticut (striking down a ban on the use, sale, and distribution of contraceptives). Deciding HOW to protect the right to an abortion proved as difficult. Justice Blackmun’s approach, clerk at the time said, “As a practical matter, was not a bad decision–but as a constitutional matter it was absurd.” Roe’s trimester-based analysis usually prohibits regulation of abortions in the first trimester, allows regulation for defending the health of the sister in the second trimester, and allows complete abortion bans after six months, the approximate time a fetus becomes viable.
Right to an Abortion Questions
1. Is there a more solid basis for finding a right to an abortion in the Constitution than there is for finding a right to contract, the right recognized in Lochner v. New York?
2. Is the right of privacy implicated when a woman has an operation performed on her in a public place (hospital or clinic) by a person she probably barely knows?
3. Which seem closer to the core of an intelligible privacy doctrine–an abortion or consensual sex between adults?
4. If you believe that the Constitution doesn’t protect the right to choose an abortion, does it prevent a state from requiring that all couples be sterilized after the birth of their second child? If the Constitution does prevent the latter, where is the prohibition found?
5. Might there be a constitutional right that protects the liberty of doctors to give the medical care that they see fit?
6. Why isn’t the state interest in protecting life compelling until viability?
7. Is there a state interest in preserving respect for life that is weakened by allowing abortions? If abortions are not immoral, would you call them morally dubious? Why is infanticide morally wrong (if you believe that to be the case) and abortion not immoral?
8. On the other hand, why is aborting a first-trimester fetus (before the fetus has significant neurological development, emotions, or any other critical attributes of humanness) any more more immoral than killing, for example, pigs that do have thoughts and emotional lives? Could you argue, in fact, that killing a pig is the more immoral act?
9. Is the argument for extending full protection to a one-month -old embryo really a religious argument?
10. Who has the better of the argument on the issue of stare decisis and the Roe–Justice Scalia or the three swing justices?
11. When is a regulation an “undue burden”? Where does this test come from? If the right to choose is really a constitutional right, why go on to ask whether the regulation unduly burdens that right? Do we ask whether a modest tax on public speaking would unduly burdens speech?