The Supreme Court has now heard arguments regarding a law passed in Mississippi that criminalizes abortions in the first trimester of pregnancy. This law violates the decision from the 1972 case, Roe vs. Wade, that such laws are unconstitutional.
Reporting in the news seems to be all speculation without any real information. I would like to have heard specifically how the decision in Roe vs. Wade was reached, so I looked up the text of the majority opinion.
The constitutional basis for the decision was Article XIV, Section 1 which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the U.S. and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S., nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the law.”
This article has been used as the basis for many decisions regarding privacy. However, the argument is now made that since the Constitution does not explicitly guarantee a right to privacy, regulating abortion is not prohibited by this right. This article was used in many decisions that do give citizens a right to privacy in many instances and extends “rights” to entities not named in the Constitution, including the recent decision that decided corporations do have a right to free speech.
The most interesting part of the extensive majority opinion, was the historical analysis of how abortion has been treated in law for centuries. Historically, in Europe (including the Catholic Church until the 9th century, according to this writing), until the “quickening,” assumed to be 24 weeks, there were no prohibitions on abortion. This was true at the time of the writing of the Constitution, which should be of interest to those Court Justices who describe themselves as originalists.
The push for restrictions on abortion that led to the laws in effect prior to Roe vs. Wade largely came into being after the Civil War. “Throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today” (1972, when the decision was written). The modern laws were written during the same period as the Great Awakening (religious revivals) and the women’s vote and temperance movements. The result of the push for Prohibition was Amendment XVIII in 1920, which was later repealed. This required a constitutional amendment since it was assumed that the government could not prohibit alcohol otherwise.
If the court now decides that laws prohibiting abortion do not violate the Constitution, the next step will be a constitutional amendment, since if Roe vs. Wade is overturned, states may still allow abortion.
The majority opinion in Roe vs. Wade based on Article IV relies on the language “persons born or naturalized in the U.S.” This language was interpreted to mean that persons not yet born were not considered citizens, and were not protected by the Constitution. The court explicitly wrote: “the word ‘person,’ as used in the 14th Amendment, does not include the unborn” and “We do not agree that by adopting one theory of life [life begins at conception] Texas may override the rights of the pregnant woman that are at stake.”
The majority opinion also stated that restrictions during the second state of pregnancy may be enacted only to protect the health of the mother and that the state must have recognized legal interests.
Unborn children have been recognized as acquiring rights or interests by inheritance, but it has generally been contingent upon live birth. There is no constitutional guarantee of rights to the unborn.
Judith Truesdell lives in Shelburne.