FINAL REVIEW, Roe
Skip to end of metadata
Go to start of metadata

ROE V WADE

BLACKMUN OPINION:

-Blackmun starts of his arguments through analysis of common law histories and the view of the medical profession generally finding opinions to sway over the course of time.
-He articulates 3 possible reasons for the existence of criminal abortion law. 1) A Victorian social concern to discourage illicit sex conduct. 2) Danger of the abortion procedure to the mother. 3) State duty to protect prenatal life. He only REALLY cares about option 3.
-Blackmun then doctrinally cites the court's acknowledgment of privacy guarantees in either the 14th or 9th amendment (depending on your views from Griswold) and declares them "broad enough to encompass a woman's decision whether or not to terminate her pregnancy".
-He recognizes the various reasons a woman would seek out an abortion.
-This sentiment is qualified however by a recognized state interest in "safeguarding health, in maintaining medical standards, and in protecting potential life", which become bigger issues as the pregnancy progresses.
-Blackmun keeps the court out of the argument over when life begins, but pegs the "compelling point" for state interest and regulation at fetus viability.
-The court doesn't agree that "by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake".
IN SUMMARY:
-The Texas statute violated the due process clause.
-For 1st trimester the abortion decision is left to the physician
-After the 1st trimester the state can regulate abortion for consideration to maternal health.
-At viability the state can prescribe abortion for the preservation of the life or health of the mother.

DOUGLASS CONCURRENCE:

-Douglass cites several penumbra laws that demand consideration when considering the negative effects childbirth may have on the health and future of the woman.
-Further, he doesn't agree that all the phases of maturation preceding birth are equal.

STEWART CONCURRENCE:

-Stewart agrees with the Roe decision supported by the liberty protected by the due process clause. In matters of marriage and family life, it has been reaffirmed a lot by the court.

RHENQUIST DESSENT

-Renquist is really pissed.
-He sees no relation between the right to get an abortion and privacy.
- "Freedom from searchers and seizures protected by the Fourth Amendment to the constitution, which the court has referred to as embodying a right to privacy" has nothing to do with an operation.
-Court's invalidation of restrictions to abortions in the 1st trimester is impossible to justify under a standard of pursuing a valid state objective.
-The idea that the court has had to lay out distinct terms by which state regulations may take place "partakes more of judicial legislation than it does of a determination of the intent of the drafters of the 14th amendment".
-The drafters by the way, probably new what they were getting into when the amendment was passed considering 36 laws enacted by state or territorial legislatures prohibiting abortion were on the books, 21 of which remain in effect today (despite standard updating).
-Rhenquist further asserts that because a majority of states representing a majority of sentiment in those states have restrictions on abortions, it is impossible to paint the procedure as a deep seeded, traditional, or fundamental right.

WHITE DISSENT:

-White finds nothing in the constitution to support the courts judgment.
-"The court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes."
-The decision of regulating abortion should remain with the legislature.

Labels
  • No labels