Constitutional Protection of Abortion: Right to Privacy?


Diabloii.Net Member
Constitutional Protection of Abortion: Right to Privacy?

In the "landmark" decision of Roe v Wade, Justice Harry Blackmun and 6 others decided that a Texas statute banning abortions except for when a mother is in danger violated a woman's Right to Privacy.

This "right to privacy" was construed from the Fourteenth Amendment in Griswold v Connecticut. However, in Griswold, the Right to Privacy covered the ability of a married couple to use contraception in their own bedroom. Blackmun, though, SOMEHOW analogizes this to an abortion, which a woman is doing to another entity, be it human yet or only potentially human. This is obviously, to anyone, less of a private matter than contraception.

Roe v Wade also did something else very interesting, something courts are NOT supposed to do. They created law. Roe instituted a Trimester model for whether or not abortions could be regulated. The Court stepped over its bounds here by taking the place of the legislature. It should be up to the states for that debate to take place. What the courts should have been deciding, and only deciding, is whether or not the right to an abortion is something protected by the Constitution. Relying on "penumbras" of the Fourteenth or Ninth amendments to create law is overstepping your bounds.

Planned Parenthood v Casey (1992) was expected to overturn Roe, and would have, except Justice Sandra Day Oconnor did not concur with the 5-4 majority, even though she was part of that majority. She instead tried to establish yet another law for this country, again taking the place of the legislature. She created the "undue burden" clause for state regulation.

This abortion thread is NOT arguing whether or not abortion should be legal or not.

This thread is arguing whether or not it should be constitutionally protected or if it should be up to the States to decide.

Try to keep the actual abortion arguments out of this.

I feel since this actually requires KNOWLEDGE of the subject, you should read through Roe V Wade 410 U.S. 113 and Planned Parenthood v Casey before you make any replies. For this reason, I expect few to reply.

Anyhow, begin.


Diabloii.Net Member
I think abortion should be a constitutionally protected right. There's more I would add to such legislation but, in a general sense, if it were to be a right, it ought to be a right on the national level.


Diabloii.Net Member
Yaboosh, I'd like to know where you got that Roe v. Wade instituted a trimester system, and thus instituting legislation. The only thing I can find remotely resembling this is the following:

The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.


Diabloii.Net Member
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [410 U.S. 113, 165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

In subsequent decisions, it proceeded to modify that standard, including Planned Parenthood v. Casey. However, it still stands that it is arbitrarily implemented, and such should be up to the states to decide when life begins. The current secular stalemate on the issue prevents the courts from making any real knowledgable decision and thus should be left to the state legislatures to determine.