9th and 14th Amendments (and some others – but these are the top 2) Roe v Wade 9th and 14th Amendments (and some others – but these are the top 2)

Is there a “right to privacy?” 4th Amendment – “right of the people to be secure in their persons, houses, papers and effects” from unreasonable government searches and seizures 5th Amendment – “right to be free of compelled self-incrimination in criminal cases.” First rulings protected places (your home for example) Later rulings included decisions about child rearing, marriage, and birth control Most states outright banned abortion Wealthy women traveled to places where abortion was possible – most could not Illegal abortions were widespread and dangerous

The Amendments “The enumeration in the Constitution , of certain rights, shall not be construed to deny or disparage others retained by the people.” “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty , or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”

Constitutional Question Does the US Constitution protect the right of a woman to obtain an abortion?

The Precedents Griswold v Connecticut (1965) (I was 6 – seriously….) A married couple wanted info on contraception at Planned Parenthood. Connecticut law criminalized providing counseling to married people for contraception that would prevent pregnancy. Court ruled this was an invasion of privacy to make decisions about their families. They identified privacy as an important value, fundamental to the American way of life. (Used 1st, 3rd, 4th and 9th Amendments) Seven years later this was extended to unmarried people as well. (That made me 13 in 8th grade)

The Precedents US v Vuitch (1971) DC had a law prohibiting abortions unless a woman’s life or health was endangered by the pregnancy. The doctor was arrested for violating that law. He said only a Dr. (not a prosecutor) could determine if an abortion was necessary for the woman’s health. Court did not overturn the DC law but ruled that “health” should include psychological and physical well-being

Arguments for Roe A woman’s right to privacy is implicitly guaranteed in the 1st, 4th, 5th, 9th and 14th Amendments Unwanted pregnancies a big problem – in 70’s pregnant women were often asked to leave work Poor women have no options where abortion is illegal and illegal abortions are dangerous Doctors in jeopardy Fetus’s are not recognized as “persons” so are not protected by BOR or Constitution. NO COURT CASE HAS EVER RECOGNIZED A FETUS AS A PERSON. (But corporations are people)

Arguments for Wade No right to abortion A fetus, from the date of conception, is a person and has constitutional rights – state has an important interest in protecting future citizens(note - not compelling government interest) Balancing of two interests should favor the most vulnerable (the unborn child) Life is superior to privacy All rights are subject to reasonable regulation Abortion is not contraception so Griswold doesn’t apply Abortion is a policy matter best left to states

Decision: 7 – 2 for Roe “the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage” and “are not of ancient or even of common-law origin.” (In other words – these laws are really new and cannot be “rooted in American heritage.” Pick your argument – 14th Amendment right to privacy out of concept of personal liberty and restriction on state action (which is the position of SCOTUS)…or… 9th Amendment reservation of individual rights to the people as decided by District Court History lacks any recognition of rights of a fetus – therefore Constitution does not protect the unborn but privacy is protected. HOWEVER – not unlimited or unqualified…

The Trimester Test (how many parts?) The first trimester – woman's’ right to privacy outweighs a state’s interests in regulating this decision. No real regulation on abortion. 2nd trimester – The state may regulate, but not prohibit abortions as long as regulations are aimed at protecting the health of the mother. 3rd trimester – The state may regulate or even prohibit abortions during this stage as long as there is an exception for abortions necessary to preserve the life and health of the mother.

Dissent “…nothing in the language or history of the Constitution to support” the right to an abortion “…an extravagant and improvident exercise of the power of judicial review that the Constitution extends to this Court” Abortion does not fit within the right of “privacy” recognized by the Court. Called decision “Judicial Legislation”