History Of Abortion In The Court Term paper
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Abortion. The word alone provokes strong
emotion in both women and men alike. Roe v. Wade was decided twenty five
years ago, but still the fight is not over. Instead, there are mass rallies,
bombings of abortion clinics, murders of doctors and workers at such clinics,
intimidation, arrest, political lobbying, and numerous Supreme Court cases.
What is it that divides families, and keeps old friends from speaking to
one another on the topic? Why are opinions so polarized and why are minds
so closed? As the great philosopher Plato said, "A perfectly simple principle
can never be applied to a state of things which is the reverse of simple".
The topic of abortion is anything but simple, and our laws governing the
matter are ever changing to try to achieve a middle ground.
In the late nineteenth century a specific
backward law was added in Connecticut. It banned not the sale or manufacture
of contraceptives but their use. The Director of the Planned Parenthood
League of Connecticut, Griswold, and its medical director, a licensed physician,
were convicted under the statute as an accessory after they gave advice
to married couples on contraception. Griswold appealed the statute to the
Supreme Court, where the question was whether the statue violated the Constitution.
The Court was convinced that it did, though it refused to become specific
about what clause of the Bill of Rights it violated. The court drew notice
to a "zone of privacy", which was an emanation created by various amendments.
This "zone" grew out of the right to privacy implicit in the First, Fourth
and Fifth Amendments. The Ninth Amendment also hints at its existence when
it says that the enumeration of specific rights does not preclude the existence
of other rights enumerated. With Griswold v. Connecticut, 381 U.S. 479
(1965), the Court established that married couples have a "Right to Privacy"
as a prenumbra to the Bill of Rights.
Seven years after the Griswold decision,
the Supreme Court expanded the "right to privacy" to include the right
of women to obtain abortions, during the first six months of pregnancy.
Roe was blocked, by the laws of Texas, from obtaining an abortion, because
Texas law prohibited abortion except to save the life of the mother. Citing
the Griswold case, she appealed to the Supreme Court, charging that the
Texas statute was an unconstitutional restriction of her "right to privacy".
By a margin of seven to two, the Court agreed.
In his majority opinion of Roe v. Wade,
410 U.S. 113 (1973), Justice Blackmun said the Court found no agreement
on when human life begins. And instead of extending it back to the period
of fertilization, the Court tended to fix its origin somewhere in the period
of "quickening", when the fetus begins to move in the uterus, which might
be anywhere from forty to eighty days. The Court's decision was grounded
in the Ninth Amendment by saying where uncertainty exist, the state has
no right to make laws pretending to be certain. However, he rejected the
view that the state has no interest in a woman's decision whether or not
to have an abortion. He expressed that the state "does have an important
and legitimate interest in protecting and preserving the health of the
pregnant woman" and it has "still another important and legitimate interest
in protecting the potentiality of human life. Blackmun asserted that the
state's interest increases as the pregnancy progresses. During the first
three months, the state has no compelling interest. However, the state
may enact abortion regulations affecting the second three months of the
pregnancy, but only to protect the health of the pregnant woman. Only with
regards to the last trimester man the state enact regulations to protect
"potential life", unless the pregnant mother's health is in danger.
Over the past twenty five years since the
Roe decision, the Court has clearly chipped away at Justice Blackmun's
open framework of the Roe case. Maher v. Roe 432 U.S. 464 (1977), was brought
before the Court as a challenge to Connecticut's limitation of state Medicaid
funding to medically necessary abortions and refusal to fund "elective"
abortions. However, the court held that the law is constitutional. It declared,
the state need not fund a woman's exercise of her right to choose abortion
even though it pays the costs of childbirth. Then in 1980, in Harris v.
McRae 448 U.S. 297, the Court heard the challenge to the Hyde Amendment,
which bans federal Medicaid funds for abortion except for those necessary
to save the woman's life. The Court held that the Hyde Amendment is constitutional
and that the government has no obligation to provide funds for the exercise
of the right to choose abortion even though it pays for the cost of childbirth.
Currently,...
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