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... t injustice to African Americans and contributing to the onset of the Civil War. [ 9 ] The unlimited substantive due process doctrine was revived early in the twentieth century by a Supreme Court opposed to federal interference in commercial matters, and the Court's decision in Lochner v. New York led to other decisions which crippled the federal government's ability to prevent or remedy the Great Depression. That situation only improved after President Franklin Roosevelt threatened to expand the number of Justices on the Supreme Court ("court-packing").
Nowadays, a virtually unlimited doctrine of substantive due process is being used a third time, to alter the course and sweep of American history, and to prolong a tragic controversy that should properly be worked out primarily through the legislative process in which women are entitled by law and by natural right to fully participate. The concept that Congress and the state legislatures should be trusted with authority to penalize some pre-viability abortions is no more unrealistic than the mantra that every woman will consult her conscience, her priest, her doctor, and her God before having an abortion. If you have plowed all the way to this point of my little rant, you may be thinking that, if you limit the 14 th amendment to incorporation of rights enumerated in the Constitution, then you can still justify Roe v. Wade on the basis that anti-abortion laws violate a "right to privacy" implicitly embodied in the Bill of Rights.
The majority opinion in Roe v. Wade did discuss a right to privacy, but grounded the privacy right entirely in the Fourteenth Amendment's due process clause, and Justice Blackmun chose not to rely on the Ninth Amendment or on any other part of the Bill of Rights. The theory that the Bill of Rights protects a sweeping right to privacy was pioneered by Supreme Court Justice William O. Douglas, and that theory deserves a few words, even though it was not relied upon by the majority opinion in Roe v.
Wade. If the Framers of the Bill of Rights had wanted to enshrine an expansive right to "privacy" or "personal autonomy", they could have used such words in the Bill of Rights, but they instead purposely protected privacy rights in very specific and defined ways. [ 10 ] For good reason. Crimes committed in private can be just as awful, just as worthy of punishment and condemnation, as crimes committed in public. Child abuse, spousal abuse and like crimes are usually committed by cowards under cover of privacy, and there is absolutely no way that I will ever defend the idea that those creeps are completely protected by the Bill of Rights. (Likewise, almost every crime begins with a private decision in someone's mind, but that fact should not cause us to legalize those crimes. ) We have laws that boss men around in all kinds of intimate ways, and women should not be exempt from these types of laws so that they will be the only gender with complete control over their private matters. In my view, the courts ought to stop trying to usurp this type of legal power which actually belongs to elected representatives. Even if the Bill of Rights did expansively protect privacy, it seems pretty clear that aborting a biologically healthy second trimester pregnancy in a clinic or hospital is not an entirely private matter, seeing as how medical professionals are involved, an exchange of money is required, travel to and from the clinic or hospital is necessary, insurance company employees must be notified, and of course there is also a nonconsenting victim.
Under the Fourteenth Amendment, Congress has always had power to enforce the due process clause by enacting appropriate legislation, but congressional toleration of state laws has not received any deference whatsoever from the Supreme Court. Nor has the Supreme Court shown any patience with the state legislatures. Any number of "substantive due process" cases that have come before the Supreme Court would have been ironed out legislatively but for the Court's unnecessary intervention, an example being Griswold v. Connecticut. In Griswold, the Connecticut House of Representatives had approved a bill that would have achieved the Supreme Court's desired result of legalizing contraceptives, but action by the Connecticut Senate was pre-empted by the Court's opinion. Even if the Connecticut House and Senate had decided to maintain a ban on contraceptives, the U.
S. Congress could have overturned such a ban by using the federal power to regulate interstate commerce (just as the federal government is today regulating use of RU 486). Likewise, in the abortion controversy, we have a Supreme Court that apparently feels duty-bound to defy Congress, the state legislatures, consistent public opinion, the ancient common law, the clearly expressed intentions of the Constitution's framers, the text and structure of the Constitution itself, and even the combined weight of all these factors. This is not a showcase of constitutionalism. If Roe v.
Wade continues to stand unaltered, then the federal government and the state governments will be unable to impose even the slightest penalty for any pre-viability abortion. When a woman decides to have an abortion for the most frivolous of reasons, then a five-month-old fetus can be torn apart limb from limb, without anesthesia, with as much force and efficiency as modern technology can muster against a completely defenseless victim. This casual slaughter is happening every day without the slightest penalty, not even the penalty one incurs for littering or jaywalking. It is said that the government should not intrude into such a private domain, but that is exactly what the Supreme Court is doing by denying recourse to a law-abiding father who would act on behalf of that five-month-old fetus, and what the Supreme Court is doing by authorizing the invasion of the most private sanctuary on Earth.
This issue is not black and white (as emphasized here), which is why we need abortion statutes that can be amended as we discover flaws in those statutes. We do not need the U. S. Supreme Court to rashly interfere with the legislative process, and, in so doing, dare future Supreme Court Justices to meddle with the important principle of Stare Decision (according to which courts are reluctant to overturn or amend previous court decisions). We now have a highly and increasingly politicized Supreme Court that is unfortunately polarizing the abortion issue with every new opinion it issues. [ 11 ] The Supreme Court says pre-viability second trimester abortions must be permitted for any trivial reason whatsoever, without the slightest post-abortion penalty whatsoever on either parent, and that's plain wrong in my view in addition to being a bad interpretation of law. Nobody can say for sure what a fetus goes through during a first, second, or even a third trimester abortion because a fetus cannot speak to us, but certainly understanding English should not determine whether someone is entitled to human rights.
As far as the real objective truth of second and third trimester abortion is concerned, it is very reasonable based upon all the medical evidence to assume that there are real, helpless, innocent, live, suffering human victims. [ 1 ] If you read Aristotle's Politics, you " ll see that he advocated a very active role for the state in regulating procreation, even to the extent of requiring mandatory early-term abortion if the state becomes overpopulated (this is not something that I am supporting! ). It is thus very apparent that Aristotle recognized the right to life of a fetus after the first trimester, even against the power of an intrusive state, against the pressures of overpopulation, and against the desire of a mother to get an abortion. Aristotle had no means to detect sensation and life, and thus to ascertain the line between lawful and unlawful abortion, except by examining fetal movement. He wrote as follows in his History of Animals: "In the case of male children the first movement usually occurs on the right-hand side of the womb and about the fortieth day, but if the child be a female then on the left-hand side and about the ninetieth day. However, we must by no means assume this to be an accurate statement of fact, for there are many exceptions, in which the movement is manifested on the right-hand side though a female child be coming, and on the left-hand side though the infant be a male. And in short, these and all suchlike phenomena are usually subject to differences that may be summed up as differences of degree. " Incidentally, biologists now know with certainty that a fetus of either gender actively moves around and kicks after ninety days (i.
e. three months) even if the mother does not feel it until later. Over the centuries, Aristotle's standards were applied by penalizing abortions that occur after the mother distinctly feels fetal movement (at around four months), and this point came to be called "quickening. " Henry Brandon wrote, in his thirteenth century work The Laws and Customs of England, that: "If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the foetus is already formed or quickened, especially if it is quickened, he commits homicide. " By the seventeenth century, the common law penalty had relaxed somewhat, and abortion after quickening was sometimes considered a misdemeanor. Sir Edward Coke wrote (as quoted in Keeler v.
Superior Court): "If a woman be quick with childe, and by a potion or otherwise killed it in her women, or if a man beat her, whereby the childe death in her body, and she is delivered of a dead childe, this is a great misprision [i. e. , misdemeanor], and no murder; but if the childe be born alive and death of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive. " This remained the common law through the eighteenth century. Blackstone wrote essentially the same thing in 1765 (again, as quoted in Keeler v. Superior Court): "[If] a woman is quick with child, and by a potion or otherwise, killed it in her womb; or if any one beat her, whereby the child diet in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offence in quite so atrocious a light but merely as a heinous misdemeanor. " The quickening standard was ultimately codified in England in 1803 and later in many of the American states. The common law ban on post-quickening abortion remained in effect until it was continued by statute.
Justice Blackmun asserted in Roe v. Wade that "it now appear[s] doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus" (compare Justice Douglas' remarks at note four below). Later, in Planned Parenthood v. Casey, four Supreme Court Justices went un contradicted (even by Justice Blackmun) when they correctly stated that "The common law which we inherited from England made abortion after 'quickening' an offense. " [ 2 ] It's easy to get tangled up in the issue of whether an abortion should always be legal when maternal health is at risk. Someone who wants to weaken all abortion regulation can argue that a maternal headache (or a maternal bout of depression) justifies any abortion at any time, or likewise can argue that, although giving birth would be safe for the mother, an abortion would be safer. This is why, in my view, abortion regulations should be drawn up with health exceptions that are specific, and many states have already done so with respect to post-viability abortions.
Mental health exceptions are especially problematic, because mental disorders are so frequently subjective, or difficult to diagnose, or unverifiable by objective evidence. The best way to deal with all of these questions related to maternal "health" would be legislatively; Congress or the state legislatures can explore and investigate many different scenarios beyond one single woman's particular case, can amend statutes that turn out to be flawed, and can respond to the "reality check" provided by constituents. As far as rape justifying late abortions is concerned, the legal burden of proving that a woman was raped should never be the woman's burden; rather the government should have the burden of proving what actually happened (provided that the government is given the authority necessary to conduct a meaningful investigation). [ 3 ] The vast majority of Americans have consistently believed that abortion, generally speaking, should be legal in the first trimester and illegal in the second trimester. Poll data proves that this is true.
See, for example, the Gallup Poll which gives the following results: 1 ] Do you think abortion should generally be legal or generally illegal during the first three months of pregnancy? Should be legal 65 %, Should be illegal 31 %, Depends 2 %, No opinion 2 % (March, 2000) Should be legal 64 %, Should be illegal 30 %, Depends 4 %, No opinion 2 % (July, 1996) 2 ] Do you think abortion should generally be legal or generally illegal during the second three months of pregnancy? Should be legal 24 %, Should be illegal 69 %, Depends 4 %, No opinion 3 % (March, 2000) Should be legal 26 %, Should be illegal 65 %, Depends 7 %, No opinion 2 % (July, 1996) 3 ] Do you think abortion should generally be legal or generally illegal during the third three months of pregnancy? Should be legal 8 %, Should be illegal 86 %, Depends 3 %, No opinion 3 % (March, 2000) Should be legal 13 %, Should be illegal 82 %, Depends 3 %, No opinion 2 % (July, 1996) [ 4 ] Some of this history is described at footnote [ 1 ] supra. Regarding quickening, the concurring opinion of Justice Douglas in Roe v. Wade stated that "a rightful concern of society [is] the life of the fetus after quickening" (this concurring opinion of Justice Douglas Douglas was technically included in the case Doe v.
Bolton instead of the companion case Roe v. Wade). Despite the concerns of Justice Douglas, Justice Blackmun's opinion in Roe v. Wade dismissed the ancient quickening standard and instead held that "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. " Ever since Roe v. Wade, the Supreme Court has ignored the standard discussed by Justice Douglas, and consistently...
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Research essay sample on Supreme Court Justices Due Process Clause
