I just finished my final short essay for Constitutional Law which I had to review all the case opinions on abortion. Since it is a presidential election year many people are pretending to act like they deeply care about the life of the unborn per their moral duty every four years. Regardless how “settled” this issue is, it is one of the essential topics that must be addressed by both sides during the political campaigns. At the same time, with the knowledge I have concerning the present constitutional status of abortion, the only influence the President can offer is concerning the Supreme Court. In many ways this election cycle could be summarized as “All About the Court.” As one who takes great interest and joy in studying the Courts, it is certainly reasonable that so much concern is given to the judicial nominees. It is just sad because the Court was designed to be the “least dangerous branch.”
As candidates, journalists, and pundits weigh in on the abortion I have heard numerous times all they wanted was the continued survival of Roe. It was such proclamations that echoed the attacks or defense of the Texas case before the Supreme Court a few months ago. However, if one listened to the oral argument the concern was not for Roe, but for Casey. Planned Parenthood v. Casey (1992) was the all important case that reaffirmed Roe but also established the “undue burden” test. Thus any law that seeks to limit or affect abortion must not incur an “undue burden.” This case I think is the real barrier to any redress of abortion by the democratic process.
The actual issue of Roe was the grounds by which a woman might have the right to an abortion. Under the chain of cases that started in 1965 with the availability of birth control for married couples, a right of privacy was recognized. A hop and a skip and that right to privacy struck down bans on interracial marriage, then opened up access to birth control for non-married women, which was followed by Roe. The justification of Roe stood and still stands on the every growing absolute right to privacy, at least concerning intimate matters. It would not be a stretch that if one desires unlimited rights to a particular area, they need only to fetishize it and the Court will grant the utmost respect.
In addition to Roe declaring a right to abortion existed, it also denied the fetus personhood. The denial was so adamant that “If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [14] Amendment.” The Court has refrained from defining what a fetus is, only saying what it is not. Instead of making such a medical and philosophical judgement the Court declared the attributes of personhood depended on “viability.” The Court has also refrained from making a clear definition of viability. In fact, they have gone out of their way to deny any other institution from defining viability,
In the process, we made clear that the trimester framework incorporated only one definition of viability—ours—as we forbade States to decide that a certain objective indicator—“be it weeks of gestation or fetal weight or any other single factor”—should govern the definition of viability. (Casey)
Roe set not standards on the level of access one must have to abortion. That was actually Doe v. Bolton (1973), decided on the same day as Roe. So, the next time a politician, pundit, or acquaintance wants to laud the liberties of Roe, you will know what the text actually says and what the argument relies upon. At what point will the humanity of the unborn be realized? I do not know. With all the talk about “being on the right side of history” I hope the realization will happen sooner than later.
