Privacy has always been an important right that Americans have enjoyed since the formation of this country, and the ratification of the constitution. While not stated in the constitution as a full fledge right like freedom of speech or right to bear arms, many of the amendments of the Bill of Rights have created “ Zones of Privacy”. In addition to that the 14th Amendment’s Due Process Clause says, “that no State shall deprive any persons of life, liberty, or property, without due process of law”. So it is no surprise when there have been many cases in the Supreme Court that have said that certain laws have violate their right to privacy, especially on the issues of contraceptives and abortion. While this country has prided itself as a democracy allowing people to choose what they do, for a time in the 19th century there were a of statues that forbade people from doing certain things.
For the longest time in Connecticut, people were not allowed to use contraceptives. General Statutes of Connecticut (1958 rev) 53-32 said “ Any person who uses any drug, medicinal article or instrument for the propose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days not more than on year or both fined and imprisoned”. To go along with that statue 54-196 said, “Any person who assists, abets, counsels, hires, or commands another to commit any offense may be prosecuted and punished as if he were the principal offender”. Griswold v. Connecticut (1965) involves the state, and Appellant Griswold (the Executive Director of Planned Parenthood League of Connecticut) and Appellant Buxton (a license physician and a professor at Yale Medical School). Both of these people were arrested because they gave information, instruction, and medical advice to married persons on how to prevent conception violating the statues of the state. When this case was taken to the Supreme Court a number of justifications were used to prove that these statues were not constitutional.
Things such as association of people, and the right to educated a child in a school of the parents choice, although not in The Constitution was argued to be construed by the First Amendment. By using the pervious cases such as Meyer v Nebraska or NAACP v. Alabama, the first amendment is said to have a Penumbra that “privacy is protective from government intrusion” The Fourth and Fifth Amendment are protection against the government invasions of a man’s home and private life. With all these amendments claiming privacy as one of things that come bundled, arresting these people for wanting, and teaching ways to prevent contraceptives becomes unconstitutional because it violates the private relationship that they have. Eventually, the court said that what goes on in marriage is between the two in the relationship, and it would repulsive to allow police to search marital bedrooms”. All of these penumbras that were found in the Amendments that formed the “zones of privacy” created this new right that before was never outline in the Constitution. Griswold v. Connecticut as result became the bases for which Roe v. Wade made its argument.
Roe Vs Wade takes this notion of privacy to another level because it deals with a woman’s right to do to her body behind close doors. In Texas during the time there were State Penal Codes numbered 1191-1194 and 1196 Jane Roe, whom was a single pregnant woman (who used this name as a pseudo name) living in Dallas County, Texas was denied legal abortion because she her life was not in danger if she continued the pregnancy. Because of this, Roe claimed that the Texas statues were unconstitutionally vague and they like in the case of Griswold v. Connecticut abridge her right of personal privacy, protected by the First, Fourth, Fifth, Ninth and Fourteen Amendments (which is includes the Due Process Clause). Two other groups of people also involved minorly in this case: Dr. James Hubert Hallford and John and Mary Doe. Dr. Hallford stated that he felt that is allegations that he violated the Texas Abortion Statues were unfair because he felt that the statues of Texas were too vague for him to determine if they were in or outside the terms stated by Article 1196. As a result Hallford claimed that his privacy in the doctor patient relationship and his own right to practice medicine were violated that were what he claimed protected by the same Amendments as Roe claimed she got violated. The Does on the other hand had the same issues with the Texas abortion laws as Roe. However the main focus in the case was still on Roe and her claim that the right to have an abortion is in the concept of personal “Liberty” in the Fourteen Amendment’s Due Process clause, and the personal martial, familial, and sexual privacy said to be protected by the Bill or Right, and its penumbras.
In addition to having these rights, it was claimed that the laws that were in place, were not “ancient or common law” but instead the latter half of the 19th century. Common law according to the court was said to believe that abortion before the animation of the fetus in the utero was not a bad offense, and before that time the embryo was part of the mother. It was not until the mid to late 19th century that when the time of animation could not been determine was there a law made that no abortion was to be performed unless it was to save the life of the mother. However, an interesting point was made, that at the time of the adoption of The Constitution abortions were okay, and that a person was not defined in the constitution, making it seem that the founding fathers made it seem okay that it was okay to get an abortion. In the end, the court said that pregnancy was not really private as martial issues and involves the interest of the state, but it is ultimately the woman’s decision to make the decision whether or not to have an abortion, and would deem it okay for a woman in any state to have one with in the 1st trimester with out any state regulation. In the 2nd trimester the states can regulate abortions as long as the it is seen "in ways that are reasonably related to maternal health" but ultimately giving the decisions to the mothers in states that chose not to regulate, and that in the 3rd trimester abortions can only be gotten if it affects the mothers health.
Many years later, the Supreme Court listened to the case Planned Parent hood of Southeastern Pennsylvania v. Robert P. Casey, which is a direct issue of Roe V. Wade.This case was spurred when the Pennsylvania Abortion Control Act(1989) was found to go against the clauses in Roe v.Wade. This act made abortions harder to get because of 5 of its provisions: informed consent, which required doctors to give information about the health risks and complications that could occur with getting an abortion, spousal consent, which required the woman to give their husband notice before having an abortion, parental consent, which required minors to ask permission from their parents before having the abortion, a 24 waiting period for a women to think about getting an abortion, and the placement of a certain reporting requirements on places that provide abortion services. Five abortion clinics and one doctor brought this up to the court because they saw that this piece of legislation was unconstitutional.
This was seen as an attempt to keep the interest of the potential life at hand. All provisions but the spousal consent was deem constitutional because it not violate the 14th Amendment’s Due Process Clause because all of the other provisions still allowed the woman to get an abortion. In addition to this the court said that it had to “draw the line at viability” for a woman to decide to terminate her pregnancy rather than using the trimester system because of stare decisis, and that like in Roe, there is a time after viability that the unborn child can live outside the womb, and that makes it “the object of the states protection that now overrides the rights of the woman”.
While it does give the woman to have an abortion before the unborn child has reach viability, which would be considered the 1st trimester because the state“ important and legitimate interest” in potential life. But in this current state of the United States’ Economy how sincere is the state in its interest in potential life when a potential human being is known to have a mental disease and suppose the mother did not know she was pregnant until it was too late, and would have to go on state programs in order to survive? It is easy for the state to say they have an interest in potential life, but at this current time states such as Arizona do not have interest in educating human life that is already born.
In a time where there is genetic testing for diseases, and mental diseases it seems that it would be in the states best interest to insure the productivity of the state, to tide down the potential liabilities that can occur with children whom are know to be disable. All abortions seem to be okay throughout all this cases if it protects the health of the mother, but one thing that seems to be overlooked is the health of the child. While there are test now, that can tell if the child is going to have a deficiency, how about if the mother does not make up her mind about the abortion until after the point of viability? Is it fair to bring a child into this world, who may not get the benefit of a normal life? And back to the health of the mother, does having a child whom has a problem protect the mental health of the mother? This of course is not limited to health problems, but social economic problems as well. If there are a lot of kids born into poverty, and has a slim chance of getting out, is that in that kids and the states interest? There are all these things that are overlooked by ideology about protecting life, but it is not worth it if the life already living. Ultimately, it is important to let the women have the privacy to make the decision to have an abortion because only she knows what kind of environment that child will be raised in.
—Angelo
Great job Angelo! AND it was timely!
ReplyDeleteThanks,
DB