Yes, this is an abortion thread. But I am asking a factual question. DO NOT DEBATE!! All responses will PLEASE just be a factual historical answer. Thank you for your cooperation.
I’m sorry for my ignorance, but pretty much all that I know about Roe v. Wade is that the court found that the laws violated the woman’s right to privacy. Exactly what does abortion have to do with privacy? Can someone give me a real historical account? I’ve looked on the internet. The information I have found is either faar too vague or is too full of legaleze for me to read. And trying to find it here came up zilch.
So…
At the risk of sparking a debate (which I definately do not want to do - please), if I go out and drag some homeless person out in the woods and shoot him in the head, couldn’t I then claim that prosecuting me would be a violation of my right to privacy? Without getting into the “a fetus isn’t alive” argument, how is that different from abortion? If you can’t answer this question without arguing, then just don’t write anything. I’d rather not have an answer (here) than have an debate in General Questions. There has to be a factual answer here. The court had to answer this question, right? How did they do it? Is it all that trimester thing? Is that just a compromise they made?
You may be wanting the judicial logic rather than the history of the case. Be that as it may, a pregnant woman in the state of Texas was the plaintiff and was seeking review of a Texas law that made abortion illegal. (By being pregnant and directly affected by the law, she had “standing”). Case got appealed up the chain, was accepted by the Supreme Court, which ruled that the government had stuck its nose where it didn’t belong in making this law, although as gestation progressed the extent to which the government had a legitimate interest increased. In late-term pregnancies where the viable fetus would be killed if an abortion were to transpire, the state might legitimately choose to prohibit abortions except to protect the life or health of the mother. In the early months, though, it was strictly a private matter between a woman and her doctor, there was no viable other life in need of protection and therefore for the state to pass such a law was to encroach on the individuals’ right to privacy.
Boyo Jim. Yeah, that was the legaleze thingy I was talking about. I already found it before but couldn’t make hide nor hair of it, since I’m just a normal guy who likes language that is clear and easy to understand.
Thanks AHunter3. Where and when was it decided that it was okay to terminate the pregnancy at whatever term it was decided that it was okay to terminate the pregnancy? (How’s that for language that is easy to understand. Heehee.) Was that already established or did the Supreme Court decide it? How did the supreme court ever make the decision that a just conceived zygote or whatever wasn’t alive? I know for some this particular question might not be easy to answer without getting into the debate, but the court had to address it somehow, right? How did they do it?
Again, please no controversy in this forum. I’m just trying to get the factual history here so I can not look like a complete moron in Great Debates, well no more moreso than I already do anyway.
In Part IX.A, the Court finds and explains the finding that the unborn child is not a “person” for the purposes of the Constitution. This doesn’t have any bearing on the question of life, but simply reflects the somewhat squishy nature of answering a legal question to which there is no answer that will satisfy everyone. I highly advise reading Part IX, if nothing else, of the opinion.
The Court also holds:
As you can see, the Court does not hold at any point that the child is not alive. Rather, it holds that the child does not meet the definition of “person” under the Constitution, that the law does not historically accord such rights to unborn children and that the state interest in protecting prenatal life does not preclude a woman from getting an abortion.
Quite simply, the homeless person has rights as a person under the Constitution and the state has an interest in protecting its citizens, and the right to privacy doesn’t protect you from being prosecuted. It’s really the state interest factor that this rests on - if the state [either a given state or the United States, whichever jurisdiction is controlling] has an interest in accomplishing a particular goal, then it is justified in preventing action contrary to that goal. It’s not all that cut and dry, of course, and the levels of state interest required vary according to the nature of the goal, but I lack the ability and understanding to fully explain the law and its underlying philosophy.
Just to clarify, the right to privacy wasn’t protecting Jane Roe from being prosecuted. It was protecting her from the state telling her she couldn’t have a medical procedure.
I’ve answered the legal aspect of your question. I sense there’s a moral or ethical component underlying, and if you’d like to discuss that I’d suggest that it’s inappropriate to do so here. That’s why I haven’t attempted to address it.
The privacy thing comes from the setup of the constitution and the Bill of Rights. Basically, an interpretation of the the 9th Amendment results in finding a right to privacy. No, it doesn’t say that in the words. Here’s what it says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Since our government is one of limited powers, the interpretation goes that the people have retained those rights not given over to the government. One of these rights is the right simply to be left alone - not to have the government interfere with your private affairs. Since the 9th Amendment is a federal Right, it trumps the states’ statutes.
A good example of this is the Court’s decision in Griswold v. Connecticut. That case found that the states could not prohibit the use of contraceptives. This was something that fell into the penumbra of privacy rights we enjoy under the 9th Amendment. Likewise with abortion - it is a private medical procedure between a woman and her doctor.
Blackmun (who I met once, BTW - very cool!) came up with the idea of trimesters as the dividing lines between when things got less private. During the first trimester, it was all private between a woman and her doctor; during the last, the state had an interest that overwhelmed the privacy interest in protecting a viable fetus.
It’s not your privacy rights to kill a homeless guy (or anyone else, for that matter) that are being violated. The homeless guy (unless he’s a first-trimester fetus without a womb, ha, ha) has the right not to be killed. But more imporantly, the state has a right to regulate conduct that impacts it’s living citizens. So you can’t just go around killing people.
I recently bought this book, which is a very interesting read.
It covers the history of the Supreme Court since the founding of the United States, and explains the legal issues and the politics behind some of the Court’s most important decisions.
Interestingly, the named plaintiff “Roe” (Norma McCorvey) later admitted that her story of being pregnant as the result of a gang rape was a complete fabrication. By her own later admission, she was impregnated during the course of a consensual affair. Perhaps because that did not seem like a sympathetic story to take to the Supreme Court in pursuit of creation of a “right to privacy” based abortion guarantee in the Constitution, her lawyers finessed her story into a much more sympathetic form.
good replies. I presume though that although a foetus is not a person under a constitution (yet), there is no reason why it couldn’t be protected under another another statute, e.g. cruelty to animals?
This was one of several “John Doe” suits re abortion-related issues considered at the same time, each of whom got one of the pseudonyms that are assigned. It happened to be the second one that was picked for the leading opinion, the one that got the “Roe” name.
Just for the record, neither RvW nor any other case AFAIK has ever been founded explicitly on the Ninth Amendment. The Right to Privacy doctrine is claimed to be founded on clear implications* of rights guaranteed in the First, Fourth, and Fifth Amendments and their extension to the states by the Fourteenth.
It does, however, depend in large part on Substantive Due Process – for the evils of which in the eyes of many constitutional law experts see the variety of CL threads in GD.
Justice Douglas used the unfortunate term “penumbras” to describe this.
McCorvey told a story of sitting around a pizza parlor shaping the way they would present the case, with Sarah Weddington, the lawyer who was eager to present a challenge to Texas’s abortion law. In the course of the conversation (which also included discussion of the fictitious details of her “gang rape”), Weddington told her about the “John Doe” tradition of anonymous cases, and, per McCorvey, they then went through the alphabet to find things that rhymed with Doe, and she settled on Roe. This was all described in McCorvey’s fairly recent petition to have Roe v. Wade reconsidered in light of “new evidence” (i.e., her admission that most of the factual representations in her complaint were lies). Of course, her petition was denied as untimely, etc.
Now, I question that story a bit, because “Richard Roe” has, in my understanding, long been an alternative to “John Doe” as meaning “some anonymous dude.” So Doe and Roe seem already to have been well-known in common law. But McCorvey claims she made the name up.
Wade was Henry Wade, the district attorney for Dallas County. The suit was filed against him by Linda Coffee (Roe’s lawyer), who was trying to block enforcement of Texas’s abortion law. As the person charged with enforcing the law in Dallas County, Wade was the named as the defendant in the suit.
Wade was the District Attorney of Dallas County, and the guy who was formally responsible for enforcing the law against abortion. It’s fairly common when challenging a law to name as defendant the officer charged with enforcing it. Someone told me a story once about how the Director of Corrections (chief prison officer) of Florida, a Mr. Wainwright (a la Gideon v. Wainwright) could never get a credit card, because when they ran a credit check, they found he’d been involved in 300 lawsuits and decided he must be some kind of litigious nut. Probably apocrypal.
The story mentions that one of the reasons she had time to argue the Roe case was because she didn’t have a full-time legal job; Texas law firms wouldn’t hire girl lawyers.
Later, because of her role in the Texas Democratic party, she was consulted on possible federal judicial appointments from Texas, with one notable example:
Wade was also in the news quite a bit in late November 1963; he was the Dallas DA who would have prosecuted Oswald for killing JFK, since assassination of the President wasn’t against Federal law at the time.
The key point here - homeless person vs fetus - is that under law going back a long long time, (Common law?) a person is a living, breathing person. Therefore, not yet born means - is not yet a person under the law. One tradition says to be alive, the person must draw a breath.
The risk of performing an abortion in the last trimester is that in the process, the fetus may be born alive and take a breath. At that point it does become a murder.
The point is, in the Good Old Days there was not a lot of reliable medicine, very often children were stillborn. Miscarriages happened all the time. If one were to fix a time where a fetus becomes a person in the eyes of the law - how? What criteria? It’s obvious a fetus at 8-1/2 months could survive and draw a breath, but at 6-1/2 it’s “iffy”. At 5-1/2? Unlikely even with intense medical help. And so on.
The simplest point is to stick with the current definition. If the fetus comes out of the womb and draws a breath, it becomes a person. Before that, it is none of the state’s business according to Roe V Wade, although as a live birth becomes possible, the state has a growing interest in forestalling a potential “death of a person” event, much as they hope to forestall your death by making you wear a seatbelt or motorcycle helmet.
It’s a pretty hard case to reconcile legally speaking. Blackmun all but admitted he looked for something he thought reasonable and simply declare that constitutionally protected.
Heller and and McDonald are similar cases of judicial mental gymnastics.
