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The American public turned to the Supreme Court to seek a resolution for the abortion conflict. Interest groups from both sides of the abortion spectrum realized their ability to effect abortion policy was much greater if fought in the courtroom, “litigation offered the potential for deciding the issue far more quickly than would be achieved through a state-by-state effort to win repeal (p.32).” Opposing viewpoints and disagreeing philosophies prevented legislature from formulating a national abortion policy. The pro-life ideology of conservative republicans was in direct conflict with the pro-choice ideology of liberal democrats. The federal system, with its system of checks and balances, left legislatures on both the federal and state level in an abortion stalemate. The dilemma faced by the legislature is exemplified by Karen O’Connor, “The fact that abortion has become an issue only non-elected officials seem able to moderate-if not resolve-leads conservatives to argue that the political system has failed because such an issue should be handled by the legislative branch, and liberals to argue that abortion is an individual decision properly made apart from government (p.115).” Soon, it was apparent that the burden of resolving the abortion issue would be placed upon the Supreme Court. When the U.S Constitution was originally drafted, clearly the framers of American government did not intend for the Supreme Court to play such a powerful role on public policy. But in January of 1973, when the Supreme Court announced their decision in Roe v. Wade, the Supreme Court took on new life, as its decision pronounced the Court a maker of public policy. Through Roe v. Wade, the Supreme Court created the blueprints for a national abortion policy. A policy that declared a woman’s right to an abortion unconditionally protected by the constitutional right to personal privacy. The framework, the general principle of Roe v. Wade was properly decided. The Constitutional right of personal privacy should be interpreted to include a woman’s right to obtain an abortion. However, some areas of the Court’s decision are flawed, particularly their decision to divide pregnancy into trimesters. Abortion did not immediately engrave itself onto public agenda; it had help. The legal debate over the use of birth control proved to be the catalyst needed to propel abortion to the Supreme Court and into the ranks of public policy. The birth control movement was significant to Roe v. Wade because it served as a key in which to unlock the gates of the Supreme Court. The Supreme Courts decision to hear Griswold v. Connecticut, a case that challenged the Connecticut statute prohibiting anyone to “use any drug, article, or instrument to prevent conception or to give assistance or counsel in its use (p.39)”, is arguably the most significant factor in the Court’s decision of Roe v. Wade. Griswold v. Connecticut laid the groundwork for which Roe v. Wade was to be decided. The Supreme Court in 1965 found the Connecticut statute to be unconstitutional as it violated a persons’ right to personal privacy. “The Court concluded that the U.S Constitution contained a broad right to privacy, which was a fundamental freedom (p.40).” Although many organizations were vehemently opposed to the rational behind the Court’s decision, their logic is Constitutionally sound. The argument that the Constitution is not open for interpretation by the Supreme Court is nonsense. “The right to privacy, the Court concluded, was so basic that the Framers had not seen the need to spell it out more clearly in the Constitution (p.40).” The Constitution was never intended to serve as America’s bible, but as a blueprint for the foundation of the Federal Government, open for interpretation. The right to personal privacy is incorporated indirectly into every amendment, and “could be found in the “penumbras emanating” from several specific guarantees in the Bill of Rights (p.40).” The premise behind the amendments of the Constitution and Bill of Rights is the right to personal privacy. Personal privacy is a guaranteed right, established to make void the threat of tyranny. Whether the right to personal privacy is found in the Third Amendment’s prohibiting of the quartering of soldiers in private homes or in the First Amendment’s protection of association, there is no question that the right to personal privacy exists under the Constitution. With the decision of Griswold v. Connecticut (1965), the groundwork for Roe v. Wade was complete. Roe v. Wade (1973) came to life when a woman was denied an abortion in her home state of Texas. Jane Roe, too poor to seek an out-of-state abortion, opted to challenge the Texas law that prohibited abortions except when necessary to save a mother’s life. Roe filed suite against the state of Texas, and argued that the Texas law deprived “women and their physicians of rights protected by the fourth, fifth, ninth, and fourteenth Amendments (p.43).” Though her approach used to challenge the Texas law was predictable, it was logical. Roe’s lawyers attempted to tap into the momentum generated by the Courts decision in Griswold v. Connecticut (1965). The Griswold case acted as a legal machete and cleared a path for Roe’s lawyers to follow. “Clearly, her lawyers relied heavily on the right to privacy enunciated by the U.S. Supreme Court in Griswold v. Connecticut (1965) (p.43).” Unquestionably, the fate of abortion policy rested in the hands of the Supreme Court. The Court’s decision in Roe v. Wade was handed down on January 22, 1973. The Court’s ruling marked the formation of America’s first national abortion policy. In the opinion of the Court, a woman’s right to obtain an abortion was protected by a right to privacy found in the national Bill of Rights. The logic used by the Court, the finding of a right to privacy in the Constitution and extending that right to encompass abortion, was proper and well devised. Some criticized the Court for using the right to personal privacy to over rule abortion laws implemented under state police powers, and “criticized the Court for finding a right not specified in the Constitution (p.46).” Still, a majority of the Court saw the states right to regulate abortion under police powers in a different light. “Seven Justices clearly concluded that a woman’s constitutional right to privacy was more important that a state’s right to regulate abortion under its police powers (p.46).” Although I agree with the Court’s decision to make individual rights a priority, I also agree with the Court for not making abortion an issue entirely free from state involvement. Justice Blackmun wrote, “The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate (p.49).” It was important for the Court to recognize that the right to privacy does not make a woman’s right to an abortion absolute under all circumstances, free from state influence. “The right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests and regulation (p.49).” Although limited, the state must play a role in abortion policy. States must look out for the welfare of the public. Justice Blackman added, “A state may properly assert important interests in safeguarding health, in maintaining medical standards (p.49).” Although the Court’s decision in Roe v. Wade legalized abortion nation-wide, the decision did not go without certain guidelines and restrictions. The Court divided a woman’s pregnancy into three trimesters. The trimester system served as the guideline for the Court to establish abortion restrictions. The Court based their abortion policy around the time periods allowed by the trimester system. Karen O’Connor explains the implications of the trimesters, “The Justices in Roe divided pregnancy into trimesters and defined different rights as applying to each of the three categories (p.47).” In the first trimester (first 3 months of pregnancy) the Court declared that a woman, after consulting her physician, has an absolute right to obtain an abortion free from state interference. However, in the second and third trimesters of pregnancy, the Court gave an increasing amount of power to the state to regulate abortion procedures. “Finally, regarding the last trimester of pregnancy, the justices concluded that the states, to promote the interests of “potential human life,” could regulate or prohibit abortions, except when they were necessary to preserve the “life or health of the mother (p.47).” It is with this philosophy, the division of pregnancy into trimesters, I find fault in the Court’s decision in Roe v. Wade. The decision is flawed because the restrictions and regulations of the abortion policy are based on the medical technology of the time. The Court gave more power to the States over abortion procedure for pregnancies in the second and third trimesters because late-term abortions were deemed dangerous. Justice O’Connor comments on the problem of basing Roe on trimesters, “Roe was on a collision course with itself because the trimester approach was unworkable in light of rapidly changing medical technology (p.97).” The problem with using the trimester approach to formulate an abortion policy can also be understood by looking into the problems with the ruling of Brown v. Board of Education (1954). In Brown v. Board of Education of Topeka, the Court learned there are problems with basing a court decision on social science. Social science can change over time. Well, the perils of basing decisions on social science are no different then basing decisions on medical science; they are both limited to time. Overall, Roe v. Wade was well handled by the Supreme Court. The Justices did an exceptional job reviewing the case in a strict legal sense, free from moral, ethnical and religious beliefs. As Justice Blackman wrote in his Opinion, “Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection (p.48).” Although there are problems with the trimester system, as the decision becomes entrapped in the medical technology of the period, the Court’s decision in Roe to protect the right’s of women to obtain abortions under the U.S. Constitution was properly decided. Bibliography: No Neutral Ground:Abortion Politics in an Age of Absolutes Word Count: 1737
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