Sunday, June 21, 2009

Supreme Court 15: Privacy (Roe)

More than seven years after its Griswold decision established a constitutional right to privacy, the U.S. Supreme Court considered the question of whether a state could prohibit the abortion of a pregnancy.

On January 22, 1973, the Court issued its decision in the case of Roe v. Wade, striking down as unconstitutional a Texas law that had prevented Norma McCorvey, who sued under the pseudonym of "Jane Roe", from seeking an abortion in that state.

Associate Justice Harry Blackmun wrote, on behalf of the majority, that the right to privacy, as established by Griswold and other cases, applies to the issue of abortion, but not in as absolute a manner as it does to other privacy issues. The pregnant woman's privacy is not the only interest at stake:

We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct.

In balancing those interests, Blackmun's opinion allowed for stricter regulation of abortion after the point of "viability" of the fetus, i.e., the point at which the fetus could survive outside of the womb.

Some opposed that concept, because it provides the least protection at the time when the fetus is most vulnerable. That faction came to be called "pro-life".

Others would go at least as far as Blackmun and the Court majority did, in establishing abortion rights. They became known as "pro-choice".

The dissent was written by William Rehnquist, then an associate justice. Among other criticisms, he raised the issue of a procedure, the critics of which call "legislating from the bench":

The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.

Only Associate Justice Byron White joined Rehnquist in dissent.

I suppose there have been Supreme Court decisions that have had a greater impact on American life, than has Roe v. Wade. But I wonder whether any of them have had more effect on political practice in this country.

Opposition to Roe was a major factor in building up support for the Religious Right. Before 1973, there was much less emphasis on fundamentalist Christians being a political interest group.

The pro-choice and pro-life labels that I referred to above, became key identifiers for political candidates, as "internationalist" and "isolationist", or "wet" and "dry" had been in earlier times.

Future Supreme Court appointments became a much bigger issue in the campaigns of presidential candidates, who would potentially appoint them, and senatorial candidates, who would potentially confirm or reject them. That has been based on the fear (or hope, depending on one's point of view) that, in a future case, the Court might overturn Roe.

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