Abortion. The word alone provokes strong emotion in both women and men alike. Roe v. Wade was decided twenty five years ago, but still the fight is not over. Instead, there are mass rallies, bombings of abortion clinics, murders of doctors and workers at such clinics, intimidation, arrest, political lobbying, and numerous Supreme Court cases. What is it that divides families, and keeps old friends from speaking to one another on the topic? Why are opinions so polarized and why are minds so closed? As the great philosopher Plato said, “A perfectly simple principle can never be applied to a state of things which is the reverse of simple”. The topic of abortion is anything but simple, and our laws governing the matter are ever changing to try to achieve a middle ground.
In the late nineteenth century a specific backward law was added in Connecticut. It banned not the sale or manufacture of contraceptives but their use. The Director of the Planned Parenthood League of Connecticut, Griswold, and its medical director, a licensed physician, were convicted under the statute as an accessory after they gave advice to married couples on contraception. Griswold appealed the statute to the Supreme Court, where the question was whether the statue violated the Constitution. The Court was convinced that it did, though it refused to become specific about what clause of the Bill of Rights it violated. The court drew notice to a “zone of privacy”, which was an emanation created by various amendments. This “zone” grew out of the right to privacy implicit in the First, Fourth and Fifth Amendments. The Ninth Amendment also hints at its existence when it says that the enumeration of specific rights does not preclude the existence of other rights enumerated. With Griswold v. Connecticut, 381 U.S. 479 (1965), the Court established that married couples have a “Right to Privacy” as a prenumbra to the Bill of Rights.
Seven years after the Griswold decision, the Supreme Court expanded the “right to privacy” to include the right of women to obtain abortions, during the first six months of pregnancy. Roe was blocked, by the laws of Texas, from obtaining an abortion, because Texas law prohibited abortion except to save the life of the mother. Citing the Griswold case, she appealed to the Supreme Court, charging that the Texas statute was an unconstitutional restriction of her “right to privacy”. By a margin of seven to two, the Court agreed.
In his majority opinion of Roe v. Wade, 410 U.S. 113 (1973), Justice Blackmun said the Court found no agreement on when human life begins. And instead of extending it back to the period of fertilization, the Court tended to fix its origin somewhere in the period of “quickening”, when the fetus begins to move in the uterus, which might be anywhere from forty to eighty days. The Court’s decision was grounded in the Ninth Amendment by saying where uncertainty exist, the state has no right to make laws pretending to be certain. However, he rejected the view that the state has no interest in a woman’s decision whether or not to have an abortion. He expressed that the state “does have an important and legitimate interest in protecting and preserving the health of the pregnant woman” and it has “still another important and legitimate interest in protecting the potentiality of human life. Blackmun asserted that the state’s interest increases as the pregnancy progresses. During the first three months, the state has no compelling interest. However, the state may enact abortion regulations affecting the second three months of the pregnancy, but only to protect the health of the pregnant woman. Only with regards to the last trimester man the state enact regulations to protect “potential life”, unless the pregnant mother’s health is in danger.
Over the past twenty five years since the Roe decision, the Court has clearly chipped away at Justice Blackmun’s open framework of the Roe case. Maher v. Roe 432 U.S. 464 (1977), was brought before the Court as a challenge to Connecticut’s limitation of state Medicaid funding to medically necessary abortions and refusal to fund “elective” abortions. However, the court held that the law is constitutional.