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Roe v. Wade and the Right to Privacy

2126 words (9 pages) Essay in Law

18/05/20 Law Reference this

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The purpose of the essay is to describe the Supreme Court case Roe v. Wade in context of the right to privacy that is protected by the Ninth and the Fourteenth Amendment of the Constitution. I will first describe the role of the government in people’s lives and judicial checks and balances to make sure no one branch would be able to control too much power. According to Krutz (2019), the civil rights guarantees that government will treat people equally. In contrast, civil liberties are limitations on government power that are intended to protect freedom.

Role of the Government

 Social role of the government is when the government regulates personal issues such as abortion, public health initiatives, civil rights, drug policy, gun safety, immigration and homosexuality. Social role of the government is also to defend the civil rights and civil liberties of everyone.  The governmental concept of separation of powers enforced through checks and balances was incorporated in the Constitution that ensures that no single branch could become too powerful.

The Judiciary system is the branch where people have the best chance to be heard. For example, for those seeking defense based on sexual orientation, civil liberties and civil rights. “Courts protect individual rights against societal and governmental oppression.” Kurtz (2019) p.485. Individual rights and liberties have come about largely as an outcome of court rulings made for individuals. Some justices believe strongly to defend individual rights and liberties and their goal is to stop laws by other branches of government that they see as invading citizens’ rights. A judge is more likely to use his or her judicial power to broaden personal liberty, justice, and equality.

Furthermore, the Supreme Court Justices are not inclined by public opinion compare to other elected branches of government. They are not elected by the people and serve lifelong terms. Therefore, they are more likely to take on debated cases than other government elected officials. They willing to take on matters and are not worried about being reelected.  Although the judicial process is sometimes slow, judicial decisions are mostly final. Judicial system is involved in a major role in defining and preserving freedom, equality, and justice.

Underrepresentation

In this section, I will talk about the historical underrepresentation of women. Historically, women had their rights limited or restricted. Krutz (2019) further elaborates that during the mid-twentieth century the ideal life for a women was to solely marry and become housewives. Women who wanted to work were denied jobs and when they were able to find work they were paid less than men. Further, some states made abortion illegal and impossible for women to obtain. Civil Rights Act of 1964 came into existence which prohibited discrimination in employment based on sex, race, color, national origin and religion. However, that did not have a great effect and women were constantly denied jobs or were often sexually harassed at the workplace while being paid less than their equal male counterparts.

“Women rights were not fully addressed until Jane Roe testified in the court. The landmark Supreme Court case Roe v. Wade was not just a win for Jane Roe, but a win for all women as it helped break the barrier that surrounded women’s equality.” (Boonstra 2014).

The Ninth and the Fourteenth Amendment in Relation to Abortion

This section, I will briefly review the application of the Ninth Amendment and the Fourteenth Amendment. The Ninth Amendment protects the right to privacy even though none of the previous amendments reference this right. The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (U.S.  Government Printing Office).  The Ninth Amendment includes privacy, liberty and a woman’s reproductive choices. It also guarantees that “liberties extend beyond those described in the preceding documents. This was an important acknowledgment that the protected rights were extensive, and the government should not attempt to interfere with them.” Krutz (2019) p.63.

This amendment is also related to the concept of federalism which means the power is divided between the federal government and state and local governments. The Ninth Amendment’s indefinite language has granted individuals a right to privacy. Even though the Ninth Amendment may never have been intended to protect persons overall privacy, it is understood to do so today.

In 1868, in the wake of the Civil War, the Fourteenth Amendment was added to affirm that “No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” However, there is an ongoing fight over rights to abortion and the right to privacy. The Fourteenth Amendment forbids states from depriving a person of liberty without due process of law. It has given women right to end a pregnancy without undue interference from the government because that right to liberty includes the right to make decisions about their family and the right to their own body.

Roe V Wade

The Supreme Court’s use of the right to privacy guideline to abortion rights was far more problematic, legally and politically. “The legal landscape changed dramatically as a result of the 1973 ruling in Roe v. Wade” (Boonstra, 2014).  Roe v. Wade was a first step towards women taking control of their own bodies and lives. This case was about a pregnant woman from Texas who wanted to terminate her pregnancy. However, Texas law did not allow abortion. Therefore, the woman appealed to the Supreme Court and the decision in Roe v. Wade stated that the right to privacy upheld in the decision in Griswold v. Connecticut (1965) included a woman’s right to an abortion. The Supreme Court justices ruled that the government did have an interest in protecting the “potentiality of human life,” nonetheless this had to be balanced against the interests of both women’s health and women’s right to decide whether to have an abortion. “In balancing the rights of the woman with the interests of the states to protect human life, the court created a trimester framework. In the first trimester, a pregnant woman could seek an abortion without restriction. In the second and third trimesters, however, the court asserted that states had an interest in regulating abortions, provided that those regulations were based on health needs.” (Krutz 2019) p.694.

However, in the 1980s, few Supreme Court justices who were specifically appointed by the president began to roll back the Roe v Wade decision. Court’s ruled in Planned Parenthood v. Casey in 1992, in which a the court rejected Roe’s framework based on trimesters and changed it with more restrictions prior to viability that are not “substantial obstacles” to women who is seeking an abortion and the court upheld some state restrictions.  Since than many of the states have passed laws which restricts abortions “such as banning certain procedures, requiring women to have and view an ultrasound before having an abortion, and implementing more stringent licensing and inspection requirements for facilities where abortions are performed.” (Boonstra 2014). The restrictions on abortion has made access to abortions more difficult in some states.

The Future of Abortion Under a New Supreme Court

Presidential nominees for the courts typically reflects their own ideological belief. Supreme Court nominee who serves a lifetime appointment, a president’s ideological belief has likely to live on long after the end of their term. For Example, President Obama considered the preferences of his two Supreme Court appointees who have ruled in a more liberal ideology. The timing of the nominations was perfect since the Democratic Party control of the Senate which helped guarantee Supreme Court nominations. However, “One of the reasons the framers of the U.S. Constitution included the provision that federal judges would be appointed for life was to provide the judicial branch with enough independence such that it could not easily be influenced by the political winds of the time” (Krutz 2019), p.502.

A Supreme Courts justice decisions are influenced by how they defines their role as a jurist. Some justices believe in judicial activism by defending individual rights and liberties and therefore their intention is stop any laws by the government that they see as invading on these rights. Others justices believe in judicial restraint which leads them to defer policies to the other branches of the government. These judges focus on a conservative interpretation of the Bill of Rights and are less likely to focus on the expansion of individual liberties. Justices personal beliefs do matter in their court decision. The reality is that a more liberal judge tend to make liberal judgments and a more conservative justices decide toward more conservative ones.

For example, the recent Supreme Court nomination of Brett Kavanaugh became intensely partisan within the Senate and with the nominee himself. Divisions arose early in the confirmation process and Kavanaugh humiliated few Democratic senators in his emotional testimony. The high partisan drama stated concerns about the process and the threat of partisanship and conflict of interest on the Court. The nomination of Kavanaugh who is a conservative Supreme Court judge has added urgency to the question of whether Roe v. Wade will survive the Trump administration.

Federal appeals courts is also the last stop before the Supreme Court who have the final say in most cases because the Supreme Court takes very few. Abortion opponents believe that the abortion should be decided in state legislatures. However, abortion rights supporters claim that Supreme Court has already considered the decision when it struck down a similar law in Texas in 2016.

Conclusion

The fundamental rights of Americans has been protected through the security of the Bill of Rights and a Democratic system of government that allows citizens to defend their rights when necessary.  Abortion debate is soon to be expected on the Supreme Court cases except that the Court’s recent majority is more hostile towards abortion rights. However, history has also shown us that people actively challenge their government to gain rights for themselves and securing their interests.  Activists for women’s rights has given a greater reproductive freedom for women and higher wages than before.

The right to privacy and the right to liberty have been included in the Ninth Amendment’s. Although the Ninth Amendment rights have held strong in the past they may find challenges in the future.  The right to privacy affects everyone and every American should be educated on these issues and policies. Control is in the hands of its citizens to decide which direction the country goes. Ever since the Roe v. Wade decision the case has become the most argumentative subject in the public. It has motivated political campaigns, movements and has started debates throughout the country around ethics, religion and biology.

The Roe v. Wade decisions was implemented throughout the United States and reversed all prior state statutes on abortion.  The Supreme Court Justices depend on passages from the Ninth and Fourteenth Amendments to create the implied right of personal liberty and personal privacy. However, since the Supreme Court justice Kavanaugh’s confirmation there has been a lot of discussion whether the Supreme Court will overturn Roe v. Wade. Furthermore, few states are passing new legislation that openly defies the Supreme Court ruling hoping that a conservative Supreme Court will approve their policies by declining to hear appeals on lower-court case rulings or backing those that do make it to the court.

References

  • Legal Information Institute, Planned Parenthood of Southeastern Pa. v. Casey (91-744), 505 U.S. 833 (1992), Retrieved from https://www.law.cornell.edu/supct/html/91-744.ZO.html
  • Krutz, Glen. American Government 2e. E-book, OpenStax, 2019. https://openstax.org/details/books/american-government-2e
  • Heather D. Boonstra and Elizabeth Nash. 2014. “A Surge of State Abortion Restrictions PutsProviders–and the Women They Serve–in the Crosshairs,” Guttmacher Policy Review 17, No. 1, Retrieved from https://www.guttmacher.org/about/gpr/2014/03/surge-state-abortion-restrictions-puts-providersand-women-they-serve-crosshairs.
  • U.S. Government Printing Office. Ninth Amendment. Enumerated Rights. Retrieved September 12, 2008, from .U.S. Government. Retreived from http://gopaccess.gov/constitution/pdf/con020.pdf
  • Newell, C., Prindle, D. F., & Riddlesperger, J. M. (2014). Texas Politics: Ideal and Reality.  Boston, MA:  Cengage Learning.
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