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Landmark or Landmine? Roe v Wade

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“I am committed to protecting this constitutional right [to privacy],” President Obama said in a statement. “I also remain committed to policies, initiatives, and programs that help prevent unintended pregnancies, support pregnant women and mothers, encourage healthy relationships, and promote adoption.” Mr. Obama said the 1973 Supreme Court ruling “affirms a fundamental principle: that government should not intrude on private family matters.”

We’ll see how that commitment works.

The phrase that “it ain’t what you say, it’s the way that you say it” comes to mind whenever I consider landmark Supreme Court decisions, none more so than that of Roe v Wade. Whenever the 38-year-old case comes up, the next words to follow are “…that legalized abortion.” Those three words express an often repeated opinion of what the court ruled when it struck down Texas criminal abortion statutes as “…vague and over broadly infringing the plaintiffs’ Ninth and Fourteenth Amendment rights.”

What the ruling says is quite different than such a modifier as “…that legalized abortion.” It would be more accurate to say of Roe that “the unborn have never been recognized in the law.” In fact, that is exactly what Justice Harry Blackmun wrote. 

Griswold v Connecticut, 1965Roe is about the right to privacy which, while not specifically articulated in the Bill of Rights, comes from a previous landmark decision, Griswold v Connecticut. In that 1965 case, the court identified a constitutionally protected right to privacy, which the court reasoned prohibited states from denying birth control to married couples. In that case, the court ruled that the Constitution protected a right to privacy by the due process clause of the Fourteenth Amendment.

As the Roe decision declares:

State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.

It is not a carte blanche for the termination of pregnancy, however, as Justice Blackmun wrote. “We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.” 

The controversial nature of public opinion relating to abortion and to the Roe decision is polarized. The opposing sides try to be careful with their use of language, as in what they call themselves: Abortionists or Pro-Choice on one side and Anti-Abortionists or Pro-Life on the other. Both sides are highly politicized and their confrontations have a history of violence.

The prevailing view of the Pro-Choice side is characterized by organizations such as the National Abortion Federation. As a “professional association of abortion providers in North America,” the NAF says, “We believe that women should be trusted to make private medical decisions in consultation with their health care providers. NAF currently offers quality training and services to abortion providers and unbiased information and referral services to women.”

The more activist Pro-Life side is characterized by organizations such as the Pro-Life Action League, which organizes and participates in marches, such as the recent one in San Francisco. The League says, “We confront the abortionists and abortion promoters wherever they are. We picket and demonstrate outside abortion facilities, pro-abortion events, the offices of abortion organizations like NOW and Planned Parenthood and even abortionists’ houses. We infiltrate their meetings and groups.”

Each side of the abortion issue has a different position on when life begins: at conception, or later. It is an argument that has its roots in the 19th century, but the Roe v Wade decision sidesteps that debate, leaving it outside of the rule of law:

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

If that debate is outside of the rule of law, it is not outside of the legislation of laws. The American Civil Liberties Union cautions that Congress is attempting to legislate around the Roe decision, “making access to abortion services harder to obtain for low-income women.” The ACLU says, “No woman plans to have an abortion, but that is the point of health insurance.” It contends, “That’s why the majority of plans currently include coverage for abortion care. Politicians should not be working to take away coverage that already exists for most women.”

While that may or may not be, the question becomes how legislators will respond to their constituencies and to public opinion. The president of the group Priests for Life, Father Frank Pavone, asserts that even after 38 years the public still does not understand what the ruling in Roe means. “Perhaps it is more accurate to say our nation is beginning to awaken to the fact that Roe’s policy—imposed by a court rather than voted on by the people’s representatives—has never represented what the majority of Americans think about abortion.” Perhaps.

So, what is that thinking? Let us turn to Gallup where you too can look at the data. Two years after the 1973 Roe v Wade ruling “gave sweeping constitutional protection to abortion,” Gallup asked Americans to say whether they believe abortion should be “legal under any circumstances,” “legal only under certain circumstances,” or “illegal in all circumstances.”

The survey results said, “In the most recent period, from 2005 to 2009, the majority of all age groups favored the middle ‘legal only under certain circumstances’ position.” Gallup further observed that even though the topic of abortion is a contentious social issue, “In recent years, the generational distinctions have blurred.” Gallup asked about abortion, not about the right to privacy.

Given the mood swing of the country that put a new Republican majority in Congress with its avowed anti-abortion agenda, the president’s right to privacy commitment is either to a constitutional landmark or to a political landmine.

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About Tommy Mack

Tommy Mack began his career in broadcasting and is a US Army graduate of the Defense Information School. He worked in Army Public and Command Information and earned a BS in Liberal Studies from the State University of New York, Albany. A marketing communications executive, Tommy became a business management consultant for a major international consulting company and its affiliates before establishing Tommy Mack Organization, a business consulting practice specializing in organization and communications management. A professional writer and blogger, he writes about politics, business, and culture.
  • Ruvy

    The problem with the decision in Roe v. Wade is that it is the prisoner of the technology of the day.

    One of the essential questions at issue was and remains “is there life at conception?” It is not the entire question, as some would argue, but an essential one. In 1973, this question could not be answered by biologists and medical ethicists with any certainty. I do not know if it can be answered yet with any certainty, but it appears to me that the inclination to argue (with solid scientific evidence) that life begins at conception is stronger today than it was in 1973. This then goes to the heart of the question, “what of the rights of the unborn?”

    Neither of these two questions are the entire bundle of issues that must be considered, but they make for a large sheaf in the bundle.

  • John Lake

    Is there life at conception?
    In response to both Mr. Mack, and Mr. Cotto
    We have now reached 38 years with the decision of Roe vs Wade the definitive law on the difficult and important issue of abortion. Oddly, the decision by the courts was made within the context of privacy; the right of privacy between a woman, and her abortionist. Since America is founded at the very core, “under God”, the courts may have seen themselves at a disadvantage. In later years, the majority of Americans see the issue as having to do with a woman’s right to prevail in matters of her body.
    I, as a self-styled liberal, have long taken the stand that the question involved here is of utmost importance to one of the parties to the proposed intervention, the innocent fetus. I refer to myself as a liberal, but my cause is not with the rights of the mother, who stands to undergo a great deal of inconvenience if the birth is mandated, but rather with the rights of the unborn child who on conception has before him, whether or not we hold a belief in God, the full prospect of a life. He is from the moment of conception going to see the world. He is in a position to meet the people, see the trees, the stars, get an education, drive at fifty-five, and someday know the love of another person, and have children of his or her own. This outlook is fairly well locked in. It goes without saying that if abortion is employed to our fetal friend, all of that is gone. Again, what I have said is true, God, or no God. When we consider the numbers of families seeking to adopt an unwanted infant, the matter becomes clearer still. I call to the reader’s attention all of which he would have lost, had his parents chosen to abort.
    It seems strange that the Republicans, devoted to corporate matters and economic pursuits would side with the child, while the liberal Democrats, who by definition are for the greater rights of the people, side with the mother over the child. I have said that our President may be forced by his political ties to opt for the women’s rights, this in view of the fact he has two lovely daughters.
    If Rand Paul has, as Joseph Cotto writing for BlogCritics indicates, opposition to the ‘morning after’ pill, we must wonder as to the man’s thinking. We wonder as to his motivation.

  • Clavos

    Good comment, John.

  • http://loftypremise.blogspot.com/ Tommy Mack

    The argument about when life begins is easy, but, it’s not the issue. The politics of abortion is the issue. The Republicans are against abortion because of the contentiousness. They are against the 14th Amendment as well.

    So while the argument continues, it tries to step around the 800 pound gorilla in the living room – war.
    We have two of them. Every day for more than 10 years, the fetuses that started breathing air at their births are returned to the United States in body bags. Those bags contain the remains of the service men and women, gay or straight, killed in their service.

    Republican legislative attempts can overcome Roe only by overcoming the 14th Amendment. Otherwise, “see you in court.” The sad part is that the GOP has nothing better to offer the country than contentiousness. If they really, honestly, truly wanted to affect the budget deficit, they would steadfastly work to end the wars and reduce their Holy defense spending at the same time.

    The unborn cannot fight wars.

  • Ruvy

    Nice bait and switch there, Mr. Mack. From judicial landmark/mine to partisan contentiousness. There are actually a number of 800 lb. gorillas in America’s livingroom that nobody really wants to touch. Since you opened the door….

    1. The attitude that “a woman’s body is her own” – therefore she can ditch whatever is inconvenient to her – including a fetus. So feticide is common – are they creatures with a right to life? That is one half of what abortion politics is all about isn’t it? A lot more dead fetuses than dead soldiers from America’s wasteful wars, though…

    2. America’s wasteful wars. They waste what used to be American money (now mere extensions of the yüan). The Republican administration wasted money and lives for what, exactly? It sure as hell wasn’t to protect Israel, I’ll tell you that much. The Democratic administration continues to waste money and lives – and also not to protect Israel.

    3. Refusal to close the border to Mexican druglords and criminals…

    4. Refusal to defang Persia. Not to protect us in Israel, but you in America.

    5. Inflation of food prices – with more inflation coming as the dollar proves its worthlessness.

    6. An over-concern with the self – this is related to #1. The American culture is pathetically self-centered, with Americans staring at their bellybuttons rather than the world around them. The American culture (that I get to see) pushes the body as a temple/toy to be entertained with sex, drugs and rock-n-roll. That gets us back to abortion. FUCKING MAKES BABIES! If men and women in America don’t want to take responsibility for what they create, they just toss it in the garbage, right? Just like a candy-bar wrapper. And that my friend, is the other half of the abortion politics.

    I’ll let you navigate around these gorillas in your livingroom, Mr. Mack. Have fun! I have to catch a bus to Jerusalem to go shopping with the bride for some food. The fridge is getting scandalously empty.

    See ya!

  • http://loftypremise.blogspot.com/ Tommy Mack

    Where is Baronius when you need him. I have to do this all by myself.

    What I like about your comments, Ruvy, is that they betray your source of news about the United States, such as your numbers 3, 4 and 5. Let me help.

    #3: As Janet Napolitano said about the Mexican/US border, “You show me a 50-foot wall and I’ll show you a 51-foot ladder.”

    #4: Iran quit calling itself Persia in 1935. If by “defang” you mean contain, that is a political no brainer. To do so would not only require a hell of a lot of weapons and money [ask a Republican]; but it would also screw up our relations with two of Iran’s powerful allies, China and Russia, with which the US must deal on an ongoing basis.

    #5: Agflation is an important issue for China and India, where the fear of inflation is real. But, as agricultural commodities such as wheat, corn, coffee and cocoa have gone up, it is not something that the US is causing for some nefarious reason, such as you suggest. Stop eating at McDonalds.

    As to your #1 and #6, your religion betrays you and puts you on one side of the argument that cannot be won. “Tastes great; Less Filling.”

    As to your assertions that somehow the US isn’t doing or spending enough on defending Israel, we don’t get al-Jazeera.

  • Ruvy

    Tommy,

    1. I never said you need a border fence. It wouldn’t hurt – lots of terrorists have been stopped by the ugly wall that cuts across part of our land – and a drug lord is nothing but a terrorist without a cause. But the willingness to shoot the bastards like rats and then try the dead bodies for the crimes committed (execution first, trial later) would help you as well, while shocking the so-called liberals among you.

    2. I purposely call Persia by its ancient name. I will not give the Nazi sympathizers there the credit they long for – being part of the Aryan race. They are savage beasts who have not progressed at all since I saw a picture of a guy being flogged there in 1920. But then again the lot of you are savage beasts, anyway, so I guess it don’t matter. Being an Aryan is no honor, either.

    3. You do not need a lot of money to defang Teheran. You nuke it and Qom, and take out the command and control centers of the country. Then, you aim the rest of your nukes at Russia and China – and let the understandings of mutual assured destruction take root once again. Once the Russians and Chinese understand clearly that you WILL nuke your enemies, they will get the hint. Who knows, maybe the Chinese will even relent and agree to buy a few more $trillion of your worthless bonds.

    4. Food inflation is hitting you and you no longer have the food reserves to cover you. And WHEN your currency loses its reserve status, the need for wheelbarrows to carry the useless currency to the store is going to go up fast – until you learn to burn your $50 bills in place of firewood. Looks like fun times ahead for you guys. But you won’t need diet books. Lack of food gets you skinny quick – even fatties who can’t lose weight (like me) manage to lose on a diet of forced starvation.

    5. I could care less about America “defending” Israel. But so many of you Americans whine like little infants complaining that you lost your precious soldiers to defend us – BULLSHIT! You never have and you never will.

    6. As for your culture of sexual irresponsibility, it is for you Americans to live with – and for us to avoid to the degree we can.

    And now, I bid you a good sabbath. Before it arrives, I have work to so, so I will not be hanging around here or my other haunts.

    See ya!

  • Jordan Richardson

    Same old, same old. American’s gonna starve, nuke Iran, blah blah blah.

    For someone with no interest or concern in how far America goes down the proverbial rabbit hole, Ruvy doesn’t talk about much else.

  • http://www.14thamendmentsummary.com 14th Amendment Summary

    14th Amendment gave equal rights and equal protection to all citizens… It helped in understanding differences & also demolished discrimination due to racism to a certain extent.