Roe vs. Wade- Revisited Lesson Plan- What does the Constitution say?
1. What do you see in the cartoon? Make a list. Include objects, people, and any characteristics that seem to be exaggerated.
2. Which of the items on the list from Question 1 are symbols? What does each symbol stand for?
3. What is happening in the cartoon?
4. What is the cartoonist's message?
5. Do you agree or disagree with the message? Explain your answer.
The following is a list of arguments in the Roe v. Wade court case. Read through each argument and decide whether it supports Roe’s side (R), against the Texas law restricting abortion; Wade’s side (W), in favor of the Texas law restricting abortion; both sides (BOTH); or neither side (N).
1. The Fourteenth Amendment says
No State shall…deny to any person within its jurisdiction the equal protection of the laws.
Having different abortion laws in various states keeps poor women in states with restrictive laws from having access to abortions, while wealthier women can travel elsewhere to have a legal and safe abortion.
2. The Fourteenth Amendment says
No State shall…deny to any person within its jurisdiction the equal protection of the laws.
If a fetus is a person from conception, then the Fourteenth Amendment guarantees equal protection of the laws. The life of the fetus must be considered as having equal weight with the life of the mother. Thus the state has a compelling interest in protecting the life of the fetus.
3. The Fourteenth Amendment says
No State shall…deprive any person of life, liberty, or property, without due process of law….
This clause has been interpreted in some cases to guarantee substantive due process. This means that the government cannot infringe on liberty without proving a compelling interest and any law that infringes on liberty has to be very narrowly crafted. Any law that infringes on a protected liberty interest, in this interpretation of the Fourteenth Amendment, is presumed to be unconstitutional and the State has to jump a high hurdle to prove otherwise.
4. The Texas abortion law declaring that a woman cannot have an abortion unless her life is in danger is too vague. Doctors may not know precisely when they are breaking the law when performing an abortion.
5. The First Amendment says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Fourth Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….
The Fifth Amendment says:
No person shall…be compelled in any criminal case to be a witness against himself….
The First, Fourth, and Fifth Amendments also apply to the States. Though these Amendments do not mention the right of privacy, privacy is fundamental to the exercise of the rights that are explicitly mentioned. As such, privacy is protected by the penumbras of the First, Fourth, and Fifth Amendments.
6. The Ninth Amendment says:
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
The Framers did not want the Bill of Rights to be an all-inclusive list of the rights that people in the United States have. The Ninth Amendment says that people retain other rights that are not explicitly listed in the Constitution. Among these rights may be the right to privacy, which would include freedom of choice in the basic decisions of one’s life.
7. It has long been an acknowledged role of the state to safeguard health and regulate medical practices.
8. The U.S. Constitution does not explicitly mention any right of privacy.
9. For the U.S. Supreme Court to determine when, where, and how an abortion should occur would be to overstep its authority as a court. It is the job of state legislatures to determine how abortions should be regulated, not federal courts.
10. The use of the word “person” in the U.S. Constitution as it was drafted does not include a fetus. Thus, the Fourteenth Amendment cannot be construed to protect the unborn.
11. As a pregnancy progresses, the interest of the state in protecting the health of the mother and the life of the fetus becomes more “compelling.”
Key Excerpts from the Majority Opinion
MR. JUSTICE BLACKMUN delivered the opinion of the Court. Chief Justice Burger and Justices Douglas, Brennan, Stewart, Marshall and Powell joined the opinion.
…We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. 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 color one's thinking and conclusions about abortion.
…The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.
…The Constitution does not explicitly mention any right of privacy. …[T]he Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. … This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute….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.
… (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.
Questions to Consider:
1. Where in the Constitution does the Court find support for the right to privacy? Do you agree that this provision of the Constitution protects a right to privacy?
2. What are the state’s interests in regulating abortion that are recognized by the Court?
3. How is the right to privacy in the abortion context different from other areas in which a right to privacy has been recognized?
4. Describe the right to an abortion that a woman has at each stage of pregnancy.
5. How well do you believe the opinion balances the interests of pregnant women and the interests of the state? Give reasons for your answer.
6. Justice Blackmun’s opinion is also concerned with preserving the relationship between the mother and the physician. How important is it to limit government regulation on the relationship between the doctor and the patient? Give reasons for your answer.
Key Excerpts from the Dissenting Opinion
Mr. Justice Rehnquist, dissenting.
The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent.
The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. [However, no party in the case was currently in her first trimester of pregnancy.] … Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a conclusion opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy.
… The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective ... But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.
…To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. …. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.
Questions to Consider:
1. What are Justice Rehnquist’s reasons for disagreeing with the right to privacy that is recognized in the majority opinion?
2. What kind of abortion law would Justice Rehnquist agree is unconstitutional?
3. Justice Rehnquist argues that the drafters of the Fourteenth Amendment did not intend for the rights to be extended to include abortion. Do you think he is correct? Should a right only be recognized if it was intended by the original drafters of the Constitution or the amendments? Explain your answer.
Roe Revisited: Casey and Stare Decisis
In 1992, the Supreme Court decided the case of Planned Parenthood of Southern Pennsylvania vs. Casey. At issue were five provisions of the Pennsylvania Abortion Control Act of 1982, which required that a woman seeking an abortion give her informed consent prior to the procedure; specified that she be provided with certain information at least 24 hours before the abortion is performed; mandated the informed consent of one parent for a minor to obtain an abortion; required that a married woman seeking an abortion notify her husband; and imposed certain reporting requirements on facilities providing abortion services. Because the make-up of the Court had changed and become more conservative since Roe was first decided, many people believed that the Court might use this case to overturn Roe altogether.
In a 5-4 decision the Court reaffirmed its commitment to Roe and to the basic right of a woman to have an abortion under certain circumstances. Justice O’Connor, who authored the majority opinion, argued that stare decisis required the Court to not overturn Roe. Stare decisis is the general principal that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. (However, the doctrine of stare decisis is not always relied upon. From time to time, the Court overrules earlier precedent that the Justices believe had been wrongly decided.) O’Connor argued that a generation of women had come to depend on the right to an abortion. Nonetheless, certain restrictions were upheld.
As a result of the case, a woman continues to have a right to an abortion before the fetus is viable (before the fetus could live independently outside of the mother’s womb). The Court held that states cannot prohibit abortion prior to viability. However, the states can regulate abortions before viability as long as the regulation does not place an “undue burden” on the access to abortion. After fetal viability, however, states have increased power to restrict the availability of abortions. The state maintains the power to restrict some abortions because of its legitimate interest in protecting the health of the woman and the potential life of the fetus. The Court stated that a regulation places an “undue burden” on access to abortion when “a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” However, the Court did not define what constitutes a “substantial obstacle.” Specifically in Casey, the Court upheld the 24 hour waiting period, but found the spousal notification requirement to be unconstitutional.
States can pass some laws that regulate abortion, but these laws cannot place a “substantial obstacle in the path of a woman seeking an abortion.” However, the Court did not define precisely what constitutes a substantial obstacle. The Casey decision held that regulations were constitutional if they did not place an “undue burden” on obtaining an abortion. For example, the decision allowed a regulation that requires a woman to give “informed consent” at least 24 hours before the abortion takes place.
Questions to Consider:
1. What is stare decisis and how was it used to uphold a woman’s right to an abortion that was first recognized in Roe v. Wade?
2. The original decision in Roe v. Wade used a trimester test (i.e. abortions were legal in the first six months of pregnancy) but the Casey court adopted a viability test. What are the differences between these two tests? What are the potential advantages and problems with each test?
3. Although Casey did not overturn the basic holding of Roe, it did modify it. Did Casey generally expand the right to an abortion recognized in Roe or allow for greater restrictions on that right? Explain your answer.
4. Under the undue burden test adopted by Casey, which of the following would place an undue burden on the right to an abortion. Give reasons for each answer.
a. A state law requires the father of the baby to provide written consent before his wife is able to obtain an abortion.
b. A poor woman is unable to obtain an abortion because her state does not provide public funds to cover such a medical procedure.
c. A state law requires 24-hour waiting period between the time of a woman’s formal decision to have an abortion and the actual procedure
d. A state law requires a pregnant minor to obtain written consent from both parents in order to obtain an abortion
e. A state law requires a pregnant minor to obtain written consent from one parent or a judge in order to obtain an abortion.
The Legacy of Roe: The Pro-Life vs. Pro-Choice Debate
The 1973 Roe decision did not end the debate over abortion. In many ways, the decision actually intensified the debate, making it a national issue rather than a state issue. Abortion is an extremely controversial issue that involves people’s strongly held beliefs about religion, morality, life, the role of the government, and the right to bodily integrity and privacy. Each year, on the anniversary of the decision (January 22, 1973), pro-life and pro-choice supporters stage protest rallies in front of the Supreme Court.
Abortion has become an important issue in elections and in judicial nominations. Depending on who is president and which party controls Congress, abortion counseling at federally funded clinics has sometimes been permitted and sometimes been prohibited. In congressional districts and U.S. Senate elections where the public is closely divided on this issue, candidates are often reluctant to take a strong stand either for or against abortion rights for fear of alienating an important segment of voters. And as long as the public believes that the U.S. Supreme Court is closely divided over abortion issues, advocacy groups on both sides will closely monitor presidential nominations to the Supreme Court and even to lower federal courts.
In addition to political arenas, confrontations over abortions take place on a regular basis in many communities outside of clinics that offer abortion services. Those who are against abortion often stage protests outside of clinics and those who support abortion rights volunteer to escort patients who might otherwise be discouraged from entering the clinics as a result of protests. Some extreme opponents of abortion feel so strongly that abortion is wrong that they advocate the killing of doctors who perform abortions. On the other side, some advocates of abortion rights argue that abortion opponents who threaten women or their doctors should be treated like terrorists because they advocate violence and attempt to intimidate people from exercising their constitutional rights.
Questions to Consider:
1. In your own words, why do you believe that abortion is such a controversial issue?
2. More than 30 years after Roe, some argue that this case should not have been decided by the Court and that the decision belongs in state legislatures. What are the strengths and weaknesses of this state-by-state legislative approach?
3. When people feel strongly on both sides of such an important issue, can a compromise be reached? Are there are ways to lessen the hostilities between the two sides?