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This article is written by Surbhi Jindal, a law student at Dr. B.R. Ambedkar National Law University, Sonipat, Haryana. The article attempts to discuss the case of Roe v. Wade, in light of providing adequate protection of constitutional rights exhaustively. 

Introduction 

Since ancient times the condition of women has remained filthy. She has been treated as property, leaving her devoid of her fundamental rights. And today, even in a democracy, if she had been given rights, whole-hearted attempts have been made to render her devoid of rights. 

A recent example is Texas abortion laws that have led to the public getting enraged. The present law is in clear violation of the Supreme Court’s 1973 case of Roe v. Wade. Through this article, we shall analyze the case of 1973 and see how the present law violates it. 

Case analysis of Roe v. Wade 

Case name Roe v. Wade 
Case year 1973 
Case citation 410 U.S. 113
Jurisdiction USA 
Bench strength 9
Number of opinions 3
Case matter Right to privacy and abortion, bodily integrity, and human dignity

Facts of the case

  • The Appellant in the present case was Norma McCorvey (named Jane Roe in court documents). Jane Roe was a pregnant woman who wished to obtain an abortion. She approached the Texas District Court on behalf of her and other related women in 1969 to prevent the enforcement of Texas laws that criminalize abortion except that were performed for saving a woman’s life. 
  • The case was filed under the first, fourth, fifth, ninth, and fourteenth Amendments. 
  • At that time, abortion could legally be undertaken in Texas only when it was medically advised by the doctors, to save the life of the pregnant woman. On this basis, Roe was not permitted to have an abortion as there was no threat to her life. She pleaded it as an unwanted invasion of her right to privacy granted under the fourteenth amendment of the U.S. Constitution. 
  • Previously, she had given birth to two children, but they were given up for adoption. She wanted to terminate her third pregnancy. There were two options with Roe, either to travel to the places where it was safe and legal to abort or to pay hefty fees to doctors for performing the abortion secretly.
  • Since Roe was an impoverished woman with a weak financial status, either of the options was not feasible. She was even unsuccessful in getting an illegal abortion, and after that, she was referred to Texas Attorneys Sarah Weddington and Linda Coffee. These two attorneys were interested in challenging the Texas abortion laws. 
  • Therefore she approached the Court demanding the right to abort her third child. In 1970, the District Court of Texas ruled that the abortion laws were illegal, and they inherently violated the constitutional right to privacy under the ninth and fourteenth amendment. It further ruled that the Statute was vague, unconstitutional, and infringed the Appellant’s Ninth Amendment rights.   
  • Based on it, the Court granted declaratory relief but refused to grant an injunction. Henry Wade, the district attorney of Dallas County, said that he would continue to prosecute the doctors who would continue performing abortions.
  • The Appellant appealed in the U.S. Supreme Court against Henry Wade, seeking injunction enforcement and demanding the abolition of unconstitutional Texas laws related to the right to abortion. In the meantime, Roe gave birth to her third child and put it up for adoption. 

Issues involved 

The issue involved before the U.S. Supreme Court are described here as follows: 

  • Whether the U.S. Constitution recognizes women’s right to privacy under the fourteenth amendment’s due process clause countries have the right to abort come under the ambit of the right to privacy? 
  • Whether the right to abortion is an absolute right granted to women, and to what extent is the State’s interference permissible? 

Contentions raised by parties

Various contentions were raised by both parties in the case of Roe v. Wade. However, the main arguments presented are summarised here as below: 

Contentions by Texas 

  • The first contention raised by Texas was that it had the right to reserve matters about health, protection of parental life, and maintaining medical standards. 
  • It had the exclusive right to regulate the abortion of a woman because the 14th amendment protects the fetus. 
  • Protecting parental life since conception is the State’s primary interest. 

Contentions by Roe

  • Texas law unreasonably interferes with the individual’s right to liberty under the 14th amendment. 
  • Texas law invades and infringes on women’s rights such as marital, familial, and sexual privacy guaranteed under the bill of rights. 
  • The right to abortion is absolute, and women are entitled to end it as and whenever they choose to do so.  

Judgment of the Court 

The U.S. Supreme Court, while dealing with the issues involved, made a clear distinction between the arguments. It held that the women’s right to privacy was recognized under the due process clause of the fourteenth amendment. Though the due process clause doesn’t explicitly mention the right to privacy, the Hon’ble Supreme Court recognized the right by tracing the history before the case.

Before the advent of Roe’s case, the Supreme Court held that “in a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” 

Hence, keeping in mind all the aspects, the Court ruled that the right to privacy extends to the woman’s right to control her pregnancy. The right to abortion was a fundamental choice of women protected under the fourteenth amendment of the U.S. Constitution. The hon’ble Justices acknowledged that if a woman is forced to continue with an unwanted pregnancy, it poses a lot of risk to women’s physical and mental health. 

The Court disagreed with the State’s argument that constitutional protection begins at the outset of conception. Instead, it said that the term ‘person’ is not defined anywhere in the U.S. Constitution. It only provides for the protection of born or naturalized persons. 

After examining similar cases, the Court found that unborn children have never been recognized as ‘persons’ under the Constitution and hence are not entitled to protection under the law. To determine the status of an unborn child under the law as a person, different views were taken into account to discuss when life begins.

According to the Jewish faith, it is believed that life begins at birth, while according to the catholic faith, life begins at conception. Doctors are inclined towards the view that life begins somewhere before birth. 

But the Court refused to incline towards the view of any particular faith. Instead, it said that “[W]e do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.”

The Court refused to agree with the second issue on whether the women’s right to abortion is absolute. The Constitution doesn’t recognize the right to privacy as a fundamental right. The State has the adequate power to put regulations on the rights for the smooth functioning of the society. 

The most significant impact of this judgment was that it created a framework for striking a balance between the interests of the State and women’s rights. The Court duly acknowledged that the rights of pregnant women might conflict with the State’s right to protect human life. Keeping in mind the interests of both parties, the Supreme Court divided the pregnancy into three 12-week trimesters. 

Let us understand this in detail:

First trimester 

In the first trimester of pregnancy, the State has no right to regulate abortion, except that the pregnancy procedure has to be performed by a licensed doctor, in a medically safe condition. 

Second trimester

In the second trimester of pregnancy, the State has the right to regulate abortion if the regulations are reasonable, either directly or indirectly related to the health of a pregnant woman.  

Third trimester 

In the third trimester of pregnancy, the woman’s right to privacy falls behind the State’s right to protect human life. The State may prohibit abortions unless and until they are necessary to save the life or health of the woman.  

Related cases

Roe v. Wade was not the last case when the Supreme Court held that women’s privacy rights are tied to abortion. Indeed, there were cases in the later years where the Court recognized the right to privacy with the right to abortion. It created some modifications in the framework developed in Roe. Let us understand the significant changes.

Planned Parenthood v. Casey, 1992

The Supreme Court of the U.S., while deciding the case of Planned Parenthood v. Casey, 1992, acknowledged that women do have the right to abortion embedded in the right to privacy under the fourteenth amendment. But revisiting Roe’s case, they created modifications in the framework. 

It said that the State should regulate abortions not based on the three 12-week trimester system. It instead created a standard based on ‘fetal viability’ to regulate abortions. Fetal viability is the fetus’s ability to survive outside the womb. The viability of a fetus is usually for around seven months, i.e., 28 weeks, but it can also be 24 weeks.  

Whole Woman’s Health v. Hellerstedt, 2016

Whole Woman’s Health v. Hellerstedt, 2016 is another case where the Supreme Court evaluated the State’s power to regulate abortions. The history of the point is that in 2013, Texas passed a law that placed restrictions on the abortions centres in the State. One requirement was that abortion providers had to have to admit privileges not more than 30 miles away. 

Admitting privileges meant that the doctor could accept patients to the hospital as if the doctor was an employee over there. Secondly, the doctor’s wish was to treat his patients without consent from the other doctor at another hospital. 

The law enacted had such a significant impact that the abortion clinics in the district reduced from 42 to just 19. The case reached the Supreme Court, where the bench of 8 Justices was present to hear the case. In a 5-3 decision by Supreme Court, it was held that States are not allowed to place restrictions on abortion clinics because it creates an undue burden for women seeking an abortion.  

June Medical Services v. Gee, 2020

This particular case relied on the Whole Woman’s Health case. In this case, also, it was challenged that admitting privileges for the abortion providers is unconstitutional. Chief Justice John Roberts, considered a conservative justice, joined the four liberal justices to strike down the Louisiana Statute.  

The majority in the case observed that abortion was one of the safest medical procedures, and putting an outright ban on it would lead to nothing but infringement of women’s right to privacy and would cause more trouble to them. 

Public reactions to the case 

The case of Roe v. Wade was one of the significant judgments in the history of the U.S. Some of them viewed it as a case of judicial activism, meaning that the judges’ decision was based on their own opinion rather than on the prevailing laws. Those who supported it believed that this case was a classic example of preserving women’s rights and freedom. 

On the other hand, the opponents believed that the U.S. Constitution does not explicitly state abortion rights. Hence it is only the State who should regulate the matters related to it. As we looked earlier, catholic people believe that life begins at conception, similar to the view of few people. To advance this argument, they assert that since life begins at conception, the unborn’s rights should be protected. 

While writing the judgment, Justice Harry Blackmun said that the issue of abortion is highly debatable because different people have different opinions across the world. Besides this, it also depends upon when an individual’s life begins: at conception, or after being born. 

While dealing with the issue, the Supreme Court jotted a few lines that summed up why the issue of abortion does not see the exact contours of ending discussion. 

“One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to The state one’s thinking and conclusions about abortion.”

Why is the case significant in the U.S. history

Interestingly, many people believe that Roe’s case legalized abortion. However, that’s not the case. Roe’s case created a framework for striking a balance between the rights of women and the State. It led to the determination of the State’s limit to interfere in the women’s right to abortion under the right to privacy. 

This decision of the Supreme Court has remained one of the significant judgments that led to the recognition of women’s right to abort the child. Because before Roe’s case, abortion was not legal until it was done to save the life and health of women. But after this judgment, something was at least done to regulate the abortion sector in Texas so that it doesn’t violate any party’s right. 

A few opponents of abortion assert that strict abortion rules should be brought in place. However, they have not been able to ban abortion outright but have some restrictions limiting conducting abortions. This issue is the most debatable one not only in the U.S. but across the world.  

But undoubtedly, the case of Roe v. Wade has left the carbon footprints of recognizing abortion as a legal activity under the Constitution. 

What is the present status of abortion laws

Texas has brought a new abortion law, also known as Senate Bill 8, that nearly bans abortions. The law prohibits abortion mainly after six weeks of pregnancy, with no exceptions to the cases of pregnancy resulting from rape and incest. 

Interestingly, the law has a very different provision. The citizens will enforce the law and not the State. This means that a citizen can sue a clinic if they are found violating the law. If such citizen is successful in conviction, they will be awarded $10,000 per illegal abortion. 

Another interesting thing is that the law does not sue patients but only the doctors, staff, and even the patient’s Uber driver. The persons have the potential to become defendants in such a case. 

The law violates Roe v. Wade, which upheld the women’s right to abortion as a constitutional right. The other precedents of Texas make the present law unconstitutional. Biden’s administration is to ask the Supreme Court to stop the enforcement of the law. President Joe Biden is highly determined to fight for America’s constitutional rights. 

Conclusion 

Women have the right to make choices regarding whether she wants to have a child or not. Of course, there must be some restrictions on women’s rights as well. Whether life begins at conception or after birth is a question that may never be answered due to prevailing beliefs in society. But ultimately, between the pendulum of this question and ideas, the child suffers the most. 

The State has the right to protect the health of its citizens. It has the right to make decisions on matters about the health and life of citizens. But one must understand that they should be reasonable. The recent law of Texas on abortion is an example of the same. Why should a woman compromise her rights? She, too, has the right to do whatever she wants. This law inherently bans abortions nearly after six weeks. 

What if, by that time, women don’t even know about their pregnancy? She will not have a chance to abort, and hence her right is inherently violated by the same. Also, if a woman is raped or incested, it is not her mistake to get pregnant. Why should she not be given the choice of aborting? She must be kept in exceptions, but this is not with the present law enforced in Texas. 

This is a complete injustice to the women and their rights under the Constitution of the U.S. The administration must take adequate steps to protect the constitutional rights of privacy since the fundamental and constitutional rights of a person act as a tool for the nation’s growth.

References


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