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Abortion and the Law

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Why Roe v. Wade and Doe v. Bolton are the Most Unconstitutional Decisions of All Time

By Americans United for Life
Friday, September 17th, 2010

The 1973 United States Supreme Court (USSC) decisions in Roe v. Wade and Doe v. Bolton are without question the most egregiously unconstitutional decisions of all time. These decisions turned the USSC into the national abortion control board, and stripped the ability of elected legislators to regulate this new “right” with the notoriously broad definition of “health” in Doe.

While the Constitution does not contain an express “right to privacy,” and certainly does not contain a “right to abortion,” the USSC created this “right” in cases concerning contraception (i.e. Griswold v. Connecticut) and expanded it to include the “right to abortion” in Roe v. Wade. The Court held that the decision to have an abortion was part of the right to privacy protected by the Due Process Clause of the 14th Amendment.

However, the killing of over one million unborn human beings a year cannot, by definition, involve private acts. Furthermore, while one could argue that our country has a history of protecting individuals’ privacy, our country clearly does not have a longstanding tradition of protecting abortion rights. Therefore, it is disingenuous to argue that the authors of the 14th Amendment intended to include within the amendment a fundamental right to abortion. Instead, the Court unabashedly made the policy decision that unborn children have no rights, under the guise of protecting women’s rights.

Click here to read the complete article from Americans United for Life

Roe v. Wade: Its Legal Progeny


By Richard E. Coleson, M.A.R., J.D.

In the 1973 case of Roe v. Wade, the United States Supreme Court decided 7-2 that there was a right to abortion in the U.S. Constitution, found within the recently discovered right to privacy. Even the most optimistic supporters of legal abortion were stunned by Justice Harry Blackmun's opinion, which read more like hospital regulations than constitutional adjudication, and which overrode the abortion statutes of all 50 states - - even the most permissive.

Justice Blackmun doubtless agreed with the instant media consensus that the abortion issue had been laid to rest. But while the basic "right" to abortion is in place for now, the justices are still deciding abortion cases, and recent cases have been decided by narrow margins.

In fact, the 30-year wrangling over the volatile abortion issue has been so nettlesome that many observers believe it heavily influenced the Supreme Court members in June 1997 when the justices rejected a right to assisted suicide in Washington v. Glucksberg and Vacco v. Quill. Assisted suicide advocates had relied heavily on the abortion cases, particularly language taken from the 1992 Planned Parenthood of S.E. Pennsylvania v. Casey decision. They argued that assisted suicide is no less important, or private, a choice than abortion. But the Court refused to sink into another judicial morass.

Besides the basic issue of a "right" to abortion, the Supreme Court has ruled on a variety of related issues over the past three decades. The following discussion sets out by topic the Supreme Court's key decisions in these areas. As shall be seen, the core holding of Roe - - that a woman has a right to abortion - - remains currently intact. However, the Court has recently been less hostile to some state regulations of abortion than it was from 1973 until the mid-1980s.

But this trend was interrupted - - after new Clinton appointees took their seats on the Court - - by Stenberg v. Carhart (2000), in which, the Court stuck down Nebraska's ban of the gruesome partial-birth abortion procedure for aborting older unborn children (by extracting the live child feet first up to the head then collapsing the skull, by puncture and suction, for easy delivery). One would think that any new justices would think hard about this shocking 5-4 decision.

The Right to Choose Abortion

In Roe, the Supreme Court decided that the "right of privacy" it had earlier discovered was "broad enough to encompass" a right to abortion. The Court acknowledged that "[t]he Constitution does not explicitly mention any right of privacy," but asserted that "at least the roots of that right" could be found in various provisions, including "the penumbras of the Bill of Rights." The Court held that an unborn child was not a "person," and so was not protected by the 14th Amendment's right to life.

For purposes of deciding what the states could do to regulate the right to abortion, the Roe Court adopted a trimester scheme. In the first trimester of pregnancy, it said a state could enact virtually no regulation. In the second trimester, the state could enact some regulation, but only for the purpose of protecting maternal health. In the third trimester, after viability, a state could ostensibly "proscribe" abortion, provided it made exceptions to preserve the life and "health" of the woman seeking an abortion.

But in Roe's companion case, the Court promptly reneged. In Doe v. Bolton, the same seven-member majority expansively defined "health" to include "all factors - - physical, emotional, psychological, familial, and the woman's age - - irrelevant to the well-being of the patient."

Click here to read the complete article from NRLC

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