Or more to the point, should it be? It seems to me that strictly speaking abortion is not covered currently in the Constitution, nor it the right to privacy - though there is the unreasonable search and seizure.
Now this is not to diminish the the issue itself, nor the passion on both sides, just to determine if the SCOTUS should ever have taken the case or was it a clear cut case of judicial abuse? Should it have been a state only issue?
And a side issue, are there issues so pressing that the SCOTUS should ‘make things up’ that are not in the Constitution to decide a certain way?
I think if you want the best explanation for why abortion is a constitutional right, you should look at PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY. It’s the 5-4 decision back in 1992 upholding Roe vs Wade.
Another thing to consider is this: Once you give the state control over reproduction, what’s to stop them from forcing women to have abortions as part of a state mandated eugenics program? The right to control over ones body works both ways.
It’s an interesting point to consider, but the ‘right to control one’s body’ is a arguable point w/ abortion as there are 2 bodies to consider. And again is this a reason enough to assume it’s actually in the Constitution?
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There are many things I can do which in not in the Constitution, I really don’t get your point, on perhaps you don’t get mine. Just because something is not Constitutionally protected does not make it illegal.
kanicbird:[…] the ‘right to control one’s body’ is a arguable point w/ abortion as there are 2 bodies to consider.
But if the body of the fetus isn’t considered a human person, then it doesn’t count; only the woman’s body and her right to control it is an issue.
IANAL, but AFAICT, this is why the constitutional status of the right to choose an abortion, according to Roe v. Wade, changes during the course of pregnancy. The fetus during prenatal development gradually acquires more of the status and rights of a person. So during the third trimester (and, I think, part of the second) of pregnancy, a woman is not considered to have a constitutionally protected right to choose an abortion (although abortions to preserve a woman’s life or health are still permitted).
Decisions about control over reproduction have been considered to fall within the constitutional “right to privacy” at least since Griswold v. Connecticut in 1965 declared it unconstitutional to legally restrict access to birth control. ISTM that if the right to use birth control is constitutionally protected, it only makes sense that the right to choose an (early-term) abortion is too. (Unless you’re using the “fetus is a fully human person from the instant of conception” argument, which the Court in Roe v. Wade and PPSEPA v. Casey rejected.)
Let’s go back to something basic. The Constitution does not create rights — it secures them. Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Can we PLEASE, PLEASE, PLEASE stop this all-too-common but utterly fallacious reading of the ninth amendment?
The ninth guarantees that rights secured in other places – federal statutes, state constitutions and statutes, etc. – cannot be evicerated by the argument that the enumeration of rights in the federal constitution is exclusive. It is not, and never has been, a source of positive legal rights.
And whatever one believes about the degree of autonomy a woman should have to terminate a pregnancy – even if one believes it a metaphysical right that the state cannot take away – the constitution is utterly silent on the matter. Curtailing abortion rights may be evil, nefarious, bad public policy and a generally naughty thing for the state to do, but it is not unconstitutional.
Well, actually, I take that back, sort of. Since the Supreme Court holds supreme judicial authority, their take on what is or isn’t constitutional is, as a practical matter, the final answer on that question. To clarify: the constitution does not forbid the state’s restricting abortion rights, and the current state of the law represents judicial policymaking rather than restrained judicial interpretation of the constitutional text.
Who said it was? Not I. To the contrary, the Ninth Amendment simply acknowledges that rights exist outside of the Constitution, and that just because a certain right is not enumerated in the Constitution does not mean that right doesn’t exist.
It’s certainly possible to argue that abortion should be a constitutionnal issue. Amongst other things, a constitution define rights, and it’s certainly of a major importance to know whom or what benefits from this right.
For instance :
The right of ** some creatures ** to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated would let said creatures wonder about whether or not they’re protected.
If there’s a wide disagreement about what a “person” is, then most certainly including a definition of this word in a constitutionnal text isn’t absurd.
Legally speaking, relevant case law finds the right to abortion in the Due Process clause.
As to the logic of that finding… it’s been the subject of many heated posts from the folks hereabouts.
Hey, minty – I’ve been trying to find a pair of cufflinks I lost last year… next time you’re looking, see if they’re in the Due Process clause, wouldja? Thanks much…
There are many things I can do which in not in the Constitution, I really don’t get your point, on perhaps you don’t get mine. Just because something is not Constitutionally protected does not make it illegal.
