The privacy of citizens A right to privacy? – Griswold v Connecticut (1965) The right to choose? – Roe v Wade (1973), Casey v Planned Parenthood of Pennsylvania (1992)

Roe v Wade 1973 Privacy and the right to choose or the right to have a legal abortion Does the Constitution embrace a woman's right to terminate her pregnancy by abortion? The Court ruled 7-2 that states must allow a woman to obtain an abortion during the first trimester of a pregnancy

Roe v Wade 1973 Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life In Harry Blackmun’s majority opinion, the ruling fell under the right to privacy that is implicit in the Constitution and protected by the Fourteenth Amendment

Roe v Wade 1973 Decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for 2 nd and 3 rd trimesters 2 nd Trimester: states can regulate abortion in reasonable ways as it relates to the health of the mother 3 rd Trimester: states can regulate or prohibit abortion except in cases where the mother’s life is in danger

Roe v Wade 1973

“The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.” The word “physician” appears in Roe v. Wade forty-eight times, the word “woman” forty-four times.

Doe v Bolton 1973 Georgia law prohibited abortion except on medical advice to preserve the life or health of the mother, when the foetus would likely be born defective, or when the pregnancy had resulted from rape Doe challenged Georgia law after she was denied an abortion at eight weeks because her pregnancy did not fall into any of the above categories

Doe v Bolton 1973 Court decided a woman may obtain an abortion after viability, if necessary to protect her health. Health: “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well- being of the patient.” Justice Blackmun

Doe v Bolton 1973 Abortion in essence is legal during all nine months of pregnancy for essentially any reason, as long as it can be declared necessary for a woman’s “health” Begs the complicated question who defines a woman’s health

Abortion rulings 1973 The decision to have an abortion was constitutionally protected The government had to remain neutral; legislatures could not enact laws to push women to make a certain decision. After viability, the government may prohibit abortion, but law must make exceptions if it means health risk for the woman

Planned Parenthood v Casey 1992 First abortion ruling since change in Justices The plaintiffs: 5 abortion clinics a class action of physicians who provide abortions 1 independently represented physician The suit: Certain provisions of the Pennsylvania Abortion Control Act of 1982 unconstitutional after Roe v. Wade

Planned Parenthood v Casey 1992 Pennsylvania Abortion Control Act of 1982 Informed Consent Doctors must provide information about the health risks of abortions Spousal Notification Parental Notification 24 hour waiting period prior to abortion

Planned Parenthood v Casey 1992 Court reaffirmed Roe in an opinion written jointly by Day O’Connor, Kennedy, & Souter, & based on 14 th amendment Justices said that a woman’s decision to terminate a pregnancy was within the “realm of personal liberty which the government may not enter.”

Planned Parenthood v Casey 1992 Overturns Roe’s trimester formula Viability now recognized as wks (2nd trimester) Viability: when the state’s interests outweigh a woman’s rights and abortion may be banned – state has an interest to protect human life

Planned Parenthood v Casey 1992 For the first time, the Court imposed a new standard to determine the validity of laws restricting abortions. Whether a state abortion regulation has the purpose or effect of imposing an “undue burden” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the foetus attains viability”

Planned Parenthood v Casey Upheld informed consent parental notification in cases of minors 24-hour waiting period Struck down spousal notification requirement States may regulate abortions so as to protect the health of the mother and the life of the foetus, and may outlaw abortions of "viable" foetuses

Planned Parenthood v Casey 1992 A woman’s right to chose is still constitutionally protected Under Casey, the states no longer have to be neutral in the choice of abortion The government is free to pass restrictions on abortions based on “morality” States are now permitted to prohibit abortion but a physician can perform abortion if woman’s health at risk

The right to choose Ruth Bader Ginsburg, dissenting in Gonzales v Cahart 2007, which upheld Partial Birth Abortion act of 2003, prohibiting a form of late term abortion offered another justification for abortion Act states physicians for first time since Roe can be prohibited from using a medical procedure deemed necessary by the physician to benefit the patient's health

The right to choose For Ginsburg undue restrictions on the right to abortion violate “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Thus infringe her rights under the equal-protection clause of the 14 th Amendment

The right to choose For some conservative Justices the Constitution has a single meaning, and each case thus has only one correct resolution – literal interpretation Claimed they can identify the original intent of the framers and use their eighteenth-century wisdom to resolve any modern controversy

The right to choose Interpretations of the Constitution have changed over time, legal theories go in and out of fashion Presidents can and do change the understanding of the Constitution by naming new Justices to the bench 12 since Roe was decided on in 1973

The right to choose Ronald Reagan nominally opposed abortion rights, but he never invested much energy in the cause. Two of his appointees (William Rehnquist, as Chief Justice, and Antonin Scalia) opposed Roe; two (O’Connor and Kennedy) supported it George H. W. Bush one appointee against Roe (Thomas), and one in favour (Souter)

The right to choose Roe has survived since then because Democratic Presidential candidates have understood that they needed to support abortion rights in order to win their party’s nomination Four current Democratic appointees on the Court (Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) have voted and will vote accordingly and assure Roe’s survival, for now

The right to choose Opposition to Roe has become a core value of the Republican Party To win the Republican nomination in 2012, Mitt Romney, the formerly pro- choice governor of Massachusetts, conducted a volte-face on abortion Party faithful want Justices who will overturn Roe and would have got them if Romney had won and seats had become vacant