Was Roe v. Wade A Mistake?

"When the unborn child--the stranger in the womb--is declared to be beyond the protection of society, not only are America's deepest traditions radically undermined and endangered, but a moral blight is brought upon society." Words from, Pope John Paul II rebuked the nation at Giant Stadium, in New Jersey for legalizing abortion. Pro-Life advocates rejoice at the magnanimous authority that supports their cause. But religion, like it or not, has no place in American policy making. It was for this reason that the abortion decision was left to the Supreme Courts back in 1973. Though the Roe v. Wade, ruling was decided on secular terms, the controversy among Justices has remanded since then as intense as the more transcendental reasons that flare the public sentiments. In Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey 505 US 833 (1992) abortion case, Chief Justice William H. Rehnquist opposes the Roe, holding on abortion, arguing that the Court had exceeded its reviewing power. But, Justice Harry A. Blackmun believes Roe, was an interpretation of the constitutional guarantee of freedom. I agree with Justice Blackmun because the Supreme Court did not rule on abortion but on women's freedom. Chief Justice Rehnquist believes the Roe, holding is illegitimate because neither the wording nor design of the Constitution relates to choices of procreation. The Roe, case the Courts erred in classifying as a "right of privacy" a woman's decision to terminate her pregnancy because neither constitutional precedent nor the history of abortion in America supports this view. As explained by previous cases, the guarantee of personal privacy has to do exclusively with the person claiming protection. Unlike marriage, procreation, and contraception, abortion involves not only the life and person hood of the mother but, also the potential life of her fetus. Similarly, abortion advocates can not claim protection under the authority of tradition, for this country has sternly condemned the practice since the early years of its foundation. After the Civil War, for instance, at least three-fifths of the then 45 States and Territories had prohibited or restricted abortion. The joint opinion in this case, unable to deduce abortion rights from the Constitution, cling to "stare decisis principles to let part of Roe, holding stand as precedent. The joint opinion claims Roe, should not be overturned because the facts upon which the trimester analysis was derived, as well as the legal doctrines supporting it, have remained the same since its adoption. Stare decisis has departed from a proper constitutional understanding. A stronger argument advanced by the joint opinion states that the Court must not disturb ruling made on "intensely divisive" controversies, lest the natural integrity of this Court be perceived as falling under political pressure. the first, difficulty with this argument is the definition of an intensely divisive case, for it is dependent upon the Judge's assumptions, making the principle change each time new Justices come to this Court. Moreover, the joint opinion novel "stare decisis" principle seems to be out of joint with this Court tradition of overruling previous cases, if they were unconstitutionally decided, no matter how controversial the issue. Finally, if this Court let precedents to go unchallenged, it might also seems as if the Court were given away at the political pressure of those who won. Similarly defective is the "undue burden" standard adopted by the joint opinion. The standard is completely subjective, and will make adjudication difficult if not impossible to justify. Even if there were general agreement in the judiciary that certain regulation is a "substantial obstacle" for a woman seeking an abortion, the judgement is illegitimate because under the Constitution these policies were left to state legislatures. the Due Process Clause protects the freedom of having an abortion, but the states my regulate its procedures if doing so furthers a legitimate state interest. Justice Blackmun disagrees with Chief Justice Rehnquist, he remained confident that the decision enunciated in Roe v. Wade is a sound interpretation of the United States Constitution. The worth of individual freedom and "stare decisis" principles compels the majority opinion to uphold the right of a woman to cease her pregnancy during initial development. Constitutional freedom guarantees not only physical liberty but, also personal dignity and autonomy. Accordingly substantial "Due Process" prohibits government intrusion in personal decisions affecting childbearing, marriage, contraceptive choice, and procreation. These guarantees are fundamental because decisions on bodily integrity, destiny, and identity are choices that belong strictly to the individual. therefore, when the state bans abortion, it violates a woman's right to privacy in two ways; first, the state makes meaningless her right to make decisions on her own body by forcing her to endure unwanted physical changes that might threaten her life. Moreover, because a child creates a responsibility that affects decisions on employment and education, a coercive pregnancy is in fact a nullification of her autonomy granted by the Constitution. Second, the state also violates her right to be treated equally as men, by limiting her potential to child-bearing roles. The majority opinion also acknowledges the need of upholding Roe, to preserve the integrity of the judicial system. Though constitutional precedents should not be frozen in time, they should not be upset by mere political pressure. Once the Supreme Court has settled a dispute by authority of the Constitution, its decision must stand or else the evolution and expectation of legal rules necessary for an orderly society would be undermined. In the Roe case, neither the law controlling individual freedom nor the point of viability of a fetus have changed to justify overturning its holding. Of course, the Chief Justice opinion does not agree with this view because his idea of individual liberty is too narrow. Since he believes that the rights to privacy are embedded in tradition, he chains women to rolls assigned to them by history, forgetting about the consequences that pregnancy and motherhood have in their lives. the Chief Justice claims that the abortion decision should be left to the states, where they would be decided by democratic process. he forgets, however, that constitutional rights belong to the individual, regardless of the people's opinion, and that it is this Court duty to protect them. I believe the rational expressed in Roe v. Wade., is fully consistent with the United States Constitution because the Supreme Court did not decide on the propriety of abortion but, on the power given respectively to the government and the people. In fact, every constitutional adjudication, expecting controversies involving the state and national governments, or controversies among the branches of power, merely draws the line between governmental power and individual freedom. This assessment of power is more evident when dealing with issues involving the Bill of Rights and the Fourteenth Amendment, for they speak directly about personal guarantees of freedom from government restraint. Nonetheless, even these Amendments require the Supreme Court interpretation to give life and substance to their general and abstract clauses. In this way, though the Constitution does not refer to them explicitly, the choices involving procreation, contraception, marriage, and childbearing have been pronounced rights because they grow out of that broad, constitutional area protecting individual freedom. In the words of Justice Douglas, "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance," Griswold v. Connecticut, 381 US 479, 85 SCT 1678, 14 LEd2d 510 (1965). The "emanations," as well as the guarantees, all derive their substance from the constitutional principle of individual freedom. Thus, when the Supreme Court rules on abortion, it is taking sides on the issue, but, merely implementing the basic principles of the Constitution. Admittedly, when dealing with constitutional issues, the Supreme Court must consider the rights of the individual in relation to the power of the State. Since the State must protect the community's life and well being, its power can regulate any individual freedom that threatens the overriding interest of the people. This was precisely what the Court did when it declare that a woman's right to an abortion is not absolute by qualified. The Court properly recognized that the State has an interest in safeguarding the health of the mother and the potentiality of human life. Thus analyzed, the Roe, holding drew the line, in the most practical and effective way, between government and individual authority: women have their freedom and unrestrained during the first trimester, and the State can wield its power afterward. All this means the Supreme Court does not rule on moral issues but, on legal ones. "We do not sit as a super legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, and social conditions. Because the moral law derives its authority from divine beings or as some argue, from intuitive knowledge, it can not be used to prohibit abortion without any justification other than the force of subjective rule demanded in constitutional adjudication. Inevitably, some women will have more leeway than others, and the physical, mental, and economic burden would be unequal as well. What then would be the meaning of the Equal Protection Clause if the line on individual freedom and state authority were drawn so diversely?